Response to Comments Document -NHSM Rule
Responses to Comments Document for the Identification of Non-
hazardous Secondary Materials That Are Solid Waste Rulemaking
Docket ID Number: EPA-HQ-RCRA-2008-0329
February 2011
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Response to Comments Document -NHSM Rule
INDEX
PART 1: Introduction
Page 4
PART 2: Commenters
Page 5
PART 3a: Comments on the Proposed Rule and EPA Responses
Page 32
(This is also in Section V of the preamble to the final 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
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Response to Comments Document -NHSM Rule
PART 3b: Other Comments on the Proposed Rule and EPA Responses
Page 164
A.	Proposed Approach
B.	Comments on Specific Materials Used as Fuel
1.	Traditional Fuels
2.	Manure
3.	Other Biomass
4.	Scrap Tires
5.	Used Oil
6.	Coal Refuse
7.	Sewage Sludge
C.	Comments on Specific Materials Used as Ingredients
D.	Comments on Legitimacy Criteria for Fuels
E.	Comments on Legitimacy Criteria for Ingredients
F.	Comments on Non-Waste Determination Petitions
G.	Comments on Implementation of the Rule
H.	Comments on Economic and Environmental Impacts
I.	Comments on Materials not Specifically Identified in the Preamble
J. Miscellaneous Comments
PART 3c: Major Comments Received on the Advance Notice of Proposed Rulemaking
(ANPRM) as Responded to in the Proposed Rule
Page 218
A.	Comments from State Agencies
B.	Meaning of Discard
C.	General Approach
D.	Level of Processing Needed to Produce a Non-Waste Product
E.	Comments on Specific Materials Used as a Fuel
F.	Comments on Specific Materials Used as Ingredients
G.	Legitimacy Criteria
PART 4: Comment Crosswalk
Page 254
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PART 1: Introduction
Response to Comments Document -NHSM Rule
PART 1: Introduction
This document presents EPA's responses to public comments received by the Agency on
the proposed rule for the identification of non-hazardous materials that are solid waste (the
NHSM rule). Published on June 4, 2010, the proposed NHSM Rule (75 FR 31844) identifies
which NHSM used as fuels or ingredients in combustion units are solid wastes under the
Resource Conservation and Recovery Act. Following the publication of the proposed rule, EPA
accepted public comments for a 60-day period ending August 3, 2010. The Agency received
over one thousand unique comments from a range of interested parties, including individuals,
businesses, state and local government agencies, and various non-governmental organizations.
The comments addressed several topics, including, but not limited to, the waste status for the
non-hazardous secondary materials described in the proposed rule, the rule's impact on the
markets for different non-hazardous secondary materials, potential interactions between the
proposed rule and existing Federal and State programs, and the environmental impacts of the
rule.
EPA considered all comments on the proposed rule in formulating the final rule.
Comments received on the proposal that address issues where the Agency specifically requested
comment, and as well as other significant issues raised by commenters, were included in Section
V of the preamble to the final rule. Those comments and responses contained in the preamble
are repeated here, in Section 3a, verbatim. Other unique comments received on the proposed
rule that were not included in the preamble, generally from one commenter, together with the
responses to those comments, are outlined in Section 3b.
Prior to issuance of the proposed rule, an Advance Notice of Proposed Rulemaking on
the identification of non-hazardous secondary materials that are solid waste was issued January
2, 2009. Major comments received on the ANPRM, and the responses to those comments, were
included in Section VII.C of the preamble to the proposed rule. Those major ANPRM comments
contained in the proposed rule preamble are repeated verbatim in Section 3c. These responses do
not reflect changes that were made from proposal to the final rule; see Sections 3a and 3b for
those changes.
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PART 2: Commenters
Response to Comments Document -NHSM Rule
PART 2: Commenters
The table below provides the document ID and name of each commenter who submitted
comments to the docket in response to either the Advanced Notice of Proposed Rulemaking or
the Proposed Rule. All of these comments were considered in the rulemaking process.
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-0326
D. Williams
EPA-HQ-RCRA-2008-0329-0328
Terese Colling and Fran McPoland, Washington Representatives, Paper Recycling Coalition
(PRC)
EPA-HQ-RCRA-2008-0329-0329
Michael A. Sorcher, President, M.A. Associates, Inc.
EPA-HQ-RCRA-2008-0329-0330
David B. Haldeman, Administrator, Waste Management Division, Nebraska Department of
Environmental Quality
Katherine Fry, SierraPine
David A. Webb. Creosote Council III
James C. Gauntl Executive Director, Railwav Tie Association (RTA)
EPA-HQ-RCRA-2008-0329-0331
EPA-HQ-RCRA-2008-0329-0332
EPA-HQ-RCRA-2008-0329-0333
EPA-HQ-RCRA-2008-0329-0334
Mark Wight, Assistant Counsel, Bureau of Land, Illinois Environmental Protection Agency
EPA-HQ-RCRA-2008-0329-0335
Jeffrey T. Miller, President and Executive Director, Treated Wood Council (TWC)
EPA-HQ-RCRA-2008-0329-0336
Rich Raiders, Senior Lead Environmental Engineer and Lew Buchanan, Principal
Environmental Engineer, Arkema Inc.
Lin Longshore, Vice President of Environmental Compliance, Safetv-Kleen Systems, Inc.
Mark A. Dupuis, President and CEO, International Paper Products Corporation (IPP)
Thomas W. Purcell, Science Advisor, Regulatory and Scientific Affairs, American
Petroleum Institute (API)
Michael L. Rodburg, Lowenstein Sandler PC on behalf of Schnitzer Steel Industries, Inc.
(Schnitzer)
EPA-HQ-RCRA-2008-0329-0337
EPA-HQ-RCRA-2008-0329-0338
EPA-HQ-RCRA-2008-0329-0339
EPA-HQ-RCRA-2008-0329-0340
EPA-HQ-RCRA-2008-0329-0341
Jessica M. Werber, Attorney, Environmental Integrity Project (EIP) and Hannah Connor,
Staff Attorney. Waterkeeper Alliance
EPA-HQ-RCRA-2008-0329-0342
Filipa Rio. Manager, Environmental Affairs, Alliance of Automobile Manufacturers
EPA-HQ-RCRA-2008-0329-0343
Charles G. Johnson, Unit Leader, Solid Waste and Material Management Unit, Colorado
Depar Public Health and Environment
EPA-HQ-RCRA-2008-0329-0344
F. Scott Reed, on behalf of Pamela F. Faggert, Vice President and Chief Environmental
Officer, Dominion
EPA-HQ-RCRA-2008-0329-0345
Scott Thompson, Oklahoma Department of Environmental Quality
EPA-HQ-RCRA-2008-0329-0346
Robert D. Bessette, President Council of Industrial Boiler Owners (CIBO)
EPA-HQ-RCRA-2008-0329-0347
Gary Elliott Regional Environmental Manager, Lafarge North America, Inc. (Lafarge)
EPA-HQ-RCRA-2008-0329-0348
Robert F. Wilkinson, Husch Blackwell Sanders LLP on behalf of Monsanto Company
EPA-HQ-RCRA-2008-0329-0349
Debra J. Jezouit, Megan H. Berge, Baker Botts L.L.P. on behalf of The Class of'85
Regulatory Response Group
EPA-HQ-RCRA-2008-0329-0350
James R. Roewer, Executive Director, Utility Solid Waste Activities Group (USWAG)
EPA-HQ-RCRA-2008-0329-0351
Tyrone P. Wilson, Director, Regulatory Affairs, Energy and Environment, Portland Cement
Association (PCA)
EPA-HQ-RCRA-2008-0329-0352
Tyrone P. Wilson, Director, Regulatory Affairs, Energy and Environment, Portland Cement
Association (PCA)
EPA-HQ-RCRA-2008-0329-0353
Tracey J. Norberg, Senior Vice President and Corporate Counsel, Rubber Manufacturers
Association (RMA)
Anders J. Rvdaker, President Ever-Green Energy, LLC
EPA-HQ-RCRA-2008-0329-0354
EPA-HQ-RCRA-2008-0329-0355
John K. Keppler, Chief Executive Officer, Intnnergy, LLC (Intrinergv)
Pat Kast on behalf of Douglas J. Craig, Director of Plant Operations, Central Contra Costa
Sanitary District (CCCSD)
EPA-HQ-RCRA-2008-0329-0356
EPA-HQ-RCRA-2008-0329-0357
Gerald Swensen. President Auburndale Recycling Center, Inc.
EPA-HQ-RCRA-2008-0329-0358
Jess McCluer, Director of Regulatory Affairs, National Grain and Feed Association (NGFA)
EPA-HQ-RCRA-2008-0329-0359
Tawnv A. Bridgeford, Associate General Counsel, National Mining Association (NMA)
EPA-HQ-RCRA-2008-0329-0360
Kenneth S. Komoroski, K&L Gates LLP on behalf of Koppers Inc. (Koppers)
EPA-HQ-RCRA-2008-0329-0361
Jerry Call, Executive Vice President, American Foundry Society (AFS)
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-0362
John W. Norton, Norton Engineering, LLC
EPA-HQ-RCRA-2008-0329-0363
Christina Dunsmore on behalf of Chris Hornback, Senior Director, Regulatory Affairs,
National Association of Clean Water Agencies (NACWA)
EPA-HQ-RCRA-2008-0329-0364
William Turley, Executive Director, Construction Materials Recycling Association (CMRA)
Clayt D. Lauter, Senior Environmental Specialist, FPL Environmental Services
EPA-HQ-RCRA-2008-0329-0365
EPA-HQ-RCRA-2008-0329-0366
Fred Goodson, Waste Program Coordinator, Shell Chemical and Motiva Enterprises
Craig E. Pearson on behalf of Shirley M. Ruffin, Corporate Environmental Services
Department, SCANA Corporation
Shirley M. Ruffin, Corporate Environmental Services Department, SCANA Corporation
Roopa Nemi, Latham & Watkins LLP on behalf of Chinook Energy LLC
John Bradfield, Director of Environmental Affairs, Composite Panel Association (CPA)
EPA-HQ-RCRA-2008-0329-0367
EPA-HQ-RCRA-2008-0329-0368
EPA-HQ-RCRA-2008-0329-0369
EPA-HQ-RCRA-2008-0329-0370
EPA-HQ-RCRA-2008-0329-0371
George F. Gilbert, Environmental Engineer Consultant, Kentucky Division of Waste
Management, Department for Environmental Protection
Greg Kester, Biosolids Program Manager, California Association of Sanitation Agencies
(CASA)
David R. Case, Executive Director, Environmental Technology Council (ETC)
Timothy G. Hunt, Senior Director, Air Quality Programs, American Forest & Paper
Association (AF&PA)
Jocelyne Matias Modine on behalf of Brent Erickson, Executive Vice President, Industrial
and Environmental Section, Biotechnology Industry Organization (BIO)
EPA-HQ-RCRA-2008-0329-0372
EPA-HQ-RCRA-2008-0329-0373
EPA-HQ-RCRA-2008-0329-0374
EPA-HQ-RCRA-2008-0329-0375
EPA-HQ-RCRA-2008-0329-0376
Tamra S. Van Til, Consultant Representing, Michigan Biomass
Lisa I. Cooper, Senior Vice President, PMI Ash Technologies, LLC (PMI)
David Goss, Executive Director, American Coal Ash Association (ACAA)
Jeffrey S. Lang, Counsel, Health, Safety and Environment, Rhodia Inc. (Rhodia)
EPA-HQ-RCRA-2008-0329-0377
EPA-HQ-RCRA-2008-0329-0378
EPA-HQ-RCRA-2008-0329-0379
EPA-HQ-RCRA-2008-0329-0380
Steven E. Sliver, Chief, Storage Tank and Solid Waste Section, Waste and Hazardous
Materials Division, Michigan Department of Environmental Quality (MDEQ)
EPA-HQ-RCRA-2008-0329-0381
Sean M. O'Keefe, Director, Environmental Affairs, Alexander & Baldwin, Inc. (AB) on
behalf of Hawaiian Commercial and Sugar Company (HC&S)
EPA-HQ-RCRA-2008-0329-0382
Chris S. Leason, Gallagher & Kennedy, P.A. on behalf of William C. Herz, Vice President,
Scientific Programs, The Fertilizer Institute (TFI)
EPA-HQ-RCRA-2008-0329-0383
Kay Parker, Environmental Principal, Corporate Sustainability, Health, Safety and
Environmental Advocacy, Eastman Chemical Company (Eastman)
EPA-HQ-RCRA-2008-0329-0384
John L. Wittenborn, Kelley Drye & Warren LLP on behalf of Steel Manufacturers
Association (SMA), Specialty Steel Industry of North America (SSINA), and American Iron
and Steel Institute (AISI)
EPA-HQ-RCRA-2008-0329-0385
Lee B. Zeugin, Hunton & Williams LLP on behalf of Utility Air Regulatory Group (UARG)
EPA-HQ-RCRA-2008-0329-0386
Terrv E. Coss, Waste and Remediation Director, Environmental Services Department, Xcel
Energy
EPA-HQ-RCRA-2008-0329-0387
Kim L. Harvey and Bob Elam, EH&S and Sustainability, Operations Regulatory
Management, The Dow Chemical Company (Dow)
EPA-HQ-RCRA-2008-0329-0388
H. M. Rollins, H. M. Rollins Company, Inc. on behalf of Coastal Forest Resources
Company, et al.
Jim Griffin, Senior Director, American Chemistry Council (ACC)
EPA-HQ-RCRA-2008-0329-0389
EPA-HQ-RCRA-2008-0329-0390
Michael Conolly, Tube City IMS on behalf of Karen Kiggins, President, National Slag
Association (NSA)
EPA-HQ-RCRA-2008-0329-0391
Mark Feltner, Environmental Scientist, Hampton Roads Sanitation District (HRSD)
EPA-HQ-RCRA-2008-0329-0392
Sueann Murphy on behalf of Steven Sliver, Chief, Storage Tank and Solid Waste Section,
Waste and Hazardous Materials Division, Michigan Department of Environmental Quality
(MDEQ)
EPA-HQ-RCRA-2008-0329-0393
Al Shea, Administrator, Division of Air and Waste, Wisconsin Department of Natural
Resources
EPA-HQ-RCRA-2008-0329-0394
Christopher Harris, General Counsel, NORA, An Association of Responsible Recyclers
EPA-HQ-RCRA-2008-0329-0395
Kerry Callahan. Staff Associate, on behalf of Brian Tormey, Chair, Solid Waste
Subcommittee, Association of State and Territorial Solid Waste Management Officials
(ASTSWMO)
EPA-HQ-RCRA-2008-0329-0396
Necy Sumait, Director and Executive Vice President, BlueFire Ethanol Fuels, Inc.
EPA-HQ-RCRA-2008-0329-0397
Bruno Morabito, Managing Director, Technical Services, on behalf of F. Reed Wills,
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)

President, ADAGE
EPA-HQ-RCRA-2008-0329-0398
David L. Wagger, Director of Environmental Management, on behalf of Scott J. Home, Vice
President, Governmental Affairs and General Counsel, Institute of Scrap Recycling
Industries, Inc. (ISRI)
EPA-HQ-RCRA-2008-0329-0399
David A. Buff, P.E., Q.E.P., Principal Engineer, Golder Associates, Inc., on behalf of
Florida Sugar Industry (FSI)
David A. Buff, P.E., Q.E.P., Principal Engineer, Golder Associates Inc. on behalf of New
Hope Power Partnership (NHPP)
EPA-HQ-RCRA-2008-0329-0400
EPA-HQ-RCRA-2008-0329-0401
Ronald B. Carlson, Chief Operating Officer, Liberty Tire Services, LLC
EPA-HQ-RCRA-2008-0329-0402
Scan M. O'Keefe, Director, Environmental Affairs, Alexander & Baldwin, Inc.
Frank Kohlash, Section Manager, Air Assessment and Environmental Data Management,
Minnesota Pollution Control Agency (MPCA)
EPA-HQ-RCRA-2008-0329-0403
EPA-HQ-RCRA-2008-0329-0404
Carmen Fells, Division of Regulatory Support, Office of Surface Mining, United States
Department of the Interior
EPA-HQ-RCRA-2008-0329-0405
David L. Roberson, Chairman, Alabama Scrap Tire Commission
EPA-HQ-RCRA-2008-0329-0410
James S. Pew, Staff Attorney, Earthjustice and Sierra Club
EPA-HQ-RCRA-2008-0329-0535
Gary Elliott, Regional Environmental Manager, Lafarge North America
EPA-HQ-RCRA-2008-0329-0538
L. Whisenhant
EPA-HQ-RCRA-2008-0329-0539
Pat Gallagher, Sierra Club; John D. Walke, Natural Resources Defense Council; James T.B.
Tripp, Environmental Defense Fund; and James S. Pew, Earthjustice
EPA-HQ-RCRA-2008-0329-0540
John Tiernan, President, AFS Technology
EPA-HQ-RCRA-2008-0329-0541
Firestone Complete Auto Care
EPA-HQ-RCRA-2008-0329-0542
David Coleman, Bridgestone Retail Operations, LLC
EPA-HQ-RCRA-2008-0329-0543
Bill Castle, Firestone Tire and Service Center 328509
EPA-HQ-RCRA-2008-0329-0544
Anonymous public comment
EPA-HQ-RCRA-2008-0329-0545
Mass Email Comment Campaign sponsoring organization unknown (18,588)
EPA-HQ-RCRA-2008-0329-0546
Anonvmous public comment
EPA-HQ-RCRA-2008-0329-0547
Anonymous public comment
EPA-HQ-RCRA-2008-0329-0548
Anonvmous public comment
EPA-HQ-RCRA-2008-0329-0549
Comment John Williams, President, Maine Pulp & Paper Association (MPPA)
Anonymous public comment
EPA-HQ-RCRA-2008-0329-0550
EPA-HQ-RCRA-2008-0329-0551
Anonvmous public comment
EPA-HQ-RCRA-2008-0329-0552
Mass comment campaignsponsored bv United Steelworkers (USW) (440 signatures)
EPA-HQ-RCRA-2008-0329-0553
Mass Comment Campaignsponsormg organization unknown (85)
Mass comment campaignsponsored bv United Steelworkers (97)
EPA-HQ-RCRA-2008-0329-0555
EPA-HQ-RCRA-2008-0329-0556
Debby Rexroad on behalf of Larry Magee, Chairman, CEO and President, Bridgestone
Retail Operations, LLC
EPA-HQ-RCRA-2008-0329-0557
Dan Yurko, Assistant District Manager, Bridgestone Retail Operations
EPA-HQ-RCRA-2008-0329-0558
J. D. Butts, Oklahoma District Manager, Firestone
Jessica Pierson, Recruiting and Retention Manager, BSRO, LLC-Western Zone
EPA-HQ-RCRA-2008-0329-0559
EPA-HQ-RCRA-2008-0329-0560
Terry Davenport, Hibdon Tires Plus
EPA-HQ-RCRA-2008-0329-0561
Debra Hamlin, Senior Environmental Engineer, Bridgestone Retail Operations, LLC
EPA-HQ-RCRA-2008-0329-0562
Paul Vanderburg, Manley Tire & Oil
EPA-HQ-RCRA-2008-0329-0563
Paul Vanderburg, Manley Tire & Oil
EPA-HQ-RCRA-2008-0329-0564
Viraj Patel, Tires Plus
EPA-HQ-RCRA-2008-0329-0565
Donna Soave-Clark, Bridgestone Retail Operations
J Michael Jones, Formula 1 Firestone
George Ranieri, District Manager, Team San Antonio, Bridgestone Retail Operations, LLC
EPA-HQ-RCRA-2008-0329-0566
EPA-HQ-RCRA-2008-0329-0567
EPA-HQ-RCRA-2008-0329-0568
John O'Bomsawin, Store Manager, Firestone Complete Auto Care
EPA-HQ-RCRA-2008-0329-0569
Dora Johnston, Manager, Expert Tire
EPA-HQ-RCRA-2008-0329-0570
Tim Barber, Assistant District Manager, Firestone Complete Auto Care
EPA-HQ-RCRA-2008-0329-0571
John Sheerin, Environmental Director, Bridgestone Retail Operations
EPA-HQ-RCRA-2008-0329-0572
C. Longnecker
EPA-HQ-RCRA-2008-0329-0573
Robert Amenta, President, Modern Enterprises, Inc.
EPA-HQ-RCRA-2008-0329-0574
James S. Downing, Vice President, General Counsel & Secretary, Bridgestone Retail
Operations, LLC
EPA-HQ-RCRA-2008-0329-0575
Chuck Williams, TWW
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-0576
Randy and Tammy Martin, Martin Automotive
EPA-HQ-RCRA-2008-0329-0578
Roger Sloan, Owner, Parkway Tire & Service West, Inc.
EPA-HQ-RCRA-2008-0329-0579
Bridget Bartels on behalf of Gregory M. Adams, Assistant Departmental Engineer, Air
Quality Engineering, Technical Services Department, Sanitation Districts of Los Angeles
County
EPA-HQ-RCRA-2008-0329-0580
Mass Email Comment Campaign sponsoring organization unknown (18,588)
EPA-HQ-RCRA-2008-0329-0581
Joann Helton, Bridgestone Retail Operations, LLC
EPA-HQ-RCRA-2008-0329-0582
J. Schmitt
EPA-HQ-RCRA-2008-0329-0583
R. Levy
EPA-HQ-RCRA-2008-0329-0584
Daniel R. Adams on behalf of Kristine M. Krause, Vice President Environmental, We
Energies
EPA-HQ-RCRA-2008-0329-0585
G. Kingman
Roger Sloan, Parkwav Tire & Service, Inc.
EPA-HQ-RCRA-2008-0329-0586
EPA-HQ-RCRA-2008-0329-0587
J. Anhorn
EPA-HQ-RCRA-2008-0329-0588
Kathryn Scott, Paralegal, Environmental Law Department, Bridgestone Retail Operations,
LLC
EPA-HQ-RCRA-2008-0329-0589
S. Nord
Michael Wellv, Bridgestone Retail Operations, LLC
EPA-HQ-RCRA-2008-0329-0590
EPA-HQ-RCRA-2008-0329-0591
John C. Klimowski, Environmental Specialist, Bridgestone Retail Operations, LLC
EPA-HQ-RCRA-2008-0329-0592
Jennifer Cullerton, Sr. Specialist, HR Operations and Support, Bridgestone Retail
Operations, LLC
EPA-HQ-RCRA-2008-0329-0593
Susan Robbins, Instructional Designer, Education Department, Bridgestone Retail
Operations, LLC
EPA-HQ-RCRA-2008-0329-0594
Sarah S. Markham, Environmental Engineer, Research & Environmental Affairs, Southern
Company
EPA-HQ-RCRA-2008-0329-0596
Caroline Quinn, Project Manager, Delta Diablo Sanitation District-Coalition Lead Agency
on behalf of the San Francisco Bay Area Biosolids to Energy Coalition
EPA-HQ-RCRA-2008-0329-0597
Bill Carden, Manager, Best Buy Tire & Auto, Inc.
EPA-HQ-RCRA-2008-0329-0598
Mark Wight, Assistant Counsel, Bureau of Land, Illinois Environmental Protection Agency
(Illinois EPA)
EPA-HQ-RCRA-2008-0329-0601
Catherine Elizee on behalf of Tim Manning, Vice President, Health, Safety &
Environmental, HOVENSA, LLC's (HOVENSA) _
J. Miller
EPA-HQ-RCRA-2008-0329-0602
EPA-HQ-RCRA-2008-0329-0603
Michael Connolly on behalf of Karen Kiggins, President, National Slag Association (NSA)
Eric L. Hiser, Jorden Bischoff & Hiser, PLC on behalf ofNucor Corporation
EPA-HQ-RCRA-2008-0329-0604
EPA-HQ-RCRA-2008-0329-0605
J. Miller
EPA-HQ-RCRA-2008-0329-0606
Thomas P, Greene, III., Vice President, Utility Sales, Atlantic Wood Industries, Inc.
EPA-HQ-RCRA-2008-0329-0607
Gavin Adams on behalf of Phillip D. Davis, Chief, Solid Waste Branch, Alabama
Department of Environmental Management (ADEM)
John Miller, SUS
EPA-HQ-RCRA-2008-0329-0608
EPA-HQ-RCRA-2008-0329-0609
Llovd Vassar, Fisher Chevrolet GMC Buick Inc.
EPA-HQ-RCRA-2008-0329-0610
Tom Franklin, Service Director, McCombs Ford West
EPA-HQ-RCRA-2008-0329-0611
Gregory M. Adams, Assistant Departmental Engineer, Air Quality Engineering, Technical
Services Department, Sanitation Districts of Los Angeles County (Sanitation Districts)
Stephen L. Hershner, Utilities Environmental Manager, Cedar Rapids Water Pollution
Control Facilities (Cedar Rapids)
EPA-HQ-RCRA-2008-0329-0612
EPA-HQ-RCRA-2008-0329-0613
Doug LaCroix, Fixed Operations Director, McCombs Enterprises
EPA-HQ-RCRA-2008-0329-0614
Tom Franklin, Service Director, McCombs Ford West
Wendy White on behalf of Eileen A. Sottile, Vice President Government Affairs, LKQ
Corporation
EPA-HQ-RCRA-2008-0329-0615
EPA-HQ-RCRA-2008-0329-0616
John A. Ackiewicz, Senior EHS Manager, Corporate EHS, Armstrong World Industries, Inc.
P. Lambert
Win W. Mavnard Sr., President Powerlube, Inc.
EPA-HQ-RCRA-2008-0329-0617
EPA-HQ-RCRA-2008-0329-0618
EPA-HQ-RCRA-2008-0329-0619
Megan Briggs on behalf of Curtis W. Swanson, Provisional Director of Plant Operations,
Central Contra Costa Sanitary District (CCCSD)
EPA-HQ-RCRA-2008-0329-0620
J. Teinert
EPA-HQ-RCRA-2008-0329-0621
Richard Merriman, Rick's Advantech Automotive Center LLC
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PART 2: Commenters
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Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-0622
Stephen Taylor, Owner, Einstein's Oilery
EPA-HQ-RCRA-2008-0329-0623
Thomas Kraemer, Kraemer Farms, LLC
EPA-HQ-RCRA-2008-0329-0624
Dennis W. Palmer, Executive Director/Chief Engineer, The Landis Sewerage Authority
(LSA)
Travis Wright, Nebraskaland/Kansasland/Coloradoland Tire Group
EPA-HQ-RCRA-2008-0329-0625
EPA-HQ-RCRA-2008-0329-0626
S. Futrell
D. Winslow
EPA-HQ-RCRA-2008-0329-0627
EPA-HQ-RCRA-2008-0329-0628
Jeff Hoback, Branch/Service Manager, Motor Trucks, Inc.
EPA-HQ-RCRA-2008-0329-0629
Kim L. Harvey and Darryl Sanderson, The Dow Chemical Company (DOW)
Ronald G. Holen, General Manager, Yakama Forest Products
EPA-HQ-RCRA-2008-0329-0630
EPA-HQ-RCRA-2008-0329-0631
Tad Forman, Pacific Topsoils, Inc.
EPA-HQ-RCRA-2008-0329-0632
R. Yarnell _
K. Russell
EPA-HQ-RCRA-2008-0329-0633
EPA-HQ-RCRA-2008-0329-0634
B. Murphv
EPA-HQ-RCRA-2008-0329-0635
D. Wilson
R. Mutchnik
EPA-HQ-RCRA-2008-0329-0636
EPA-HQ-RCRA-2008-0329-0638
C. Davies
M. Shimizu
EPA-HQ-RCRA-2008-0329-0639
EPA-HQ-RCRA-2008-0329-0640
R. McBane
EPA-HQ-RCRA-2008-0329-0641
D. Millett
V. Binchi
EPA-HQ-RCRA-2008-0329-0642
EPA-HQ-RCRA-2008-0329-0643
J. Wainwright
C. Speas
EPA-HQ-RCRA-2008-0329-0644
EPA-HQ-RCRA-2008-0329-0645
C. Boulanger
EPA-HQ-RCRA-2008-0329-0646
J. Miller, et. al.
J. Stoelzel
R. Caputo
J. Bergeron
C. Arnold
EPA-HQ-RCRA-2008-0329-0647
EPA-HQ-RCRA-2008-0329-0648
EPA-HQ-RCRA-2008-0329-0649
EPA-HQ-RCRA-2008-0329-0650
EPA-HQ-RCRA-2008-0329-0651
J. Knobloch
L. Duke
EPA-HQ-RCRA-2008-0329-0652
EPA-HQ-RCRA-2008-0329-0653
L. Bagley
R. Fusinato
EPA-HQ-RCRA-2008-0329-0654
EPA-HQ-RCRA-2008-0329-0655
C. Ehrhardt
EPA-HQ-RCRA-2008-0329-0656
J. Leith
H. Putera
EPA-HQ-RCRA-2008-0329-0657
EPA-HQ-RCRA-2008-0329-0658
J. Stewart
EPA-HQ-RCRA-2008-0329-0659
P. Abbott
EPA-HQ-RCRA-2008-0329-0660
J. Voss
A. Gavler
P. Gelinas
R. Sieman
M. Bartleman
R. Verhaeghe
H. Carr
T. and N. Small
C. Harris
S. Yates
EPA-HQ-RCRA-2008-0329-0661
EPA-HQ-RCRA-2008-0329-0662
EPA-HQ-RCRA-2008-0329-0663
EPA-HQ-RCRA-2008-0329-0664
EPA-HQ-RCRA-2008-0329-0665
EPA-HQ-RCRA-2008-0329-0666
EPA-HQ-RCRA-2008-0329-0667
EPA-HQ-RCRA-2008-0329-0668
EPA-HQ-RCRA-2008-0329-0669
EPA-HQ-RCRA-2008-0329-0670
M. Gargiulo
F. Friesen
EPA-HQ-RCRA-2008-0329-0671
EPA-HQ-RCRA-2008-0329-0672
T. Warren
Kevin Bolin, President and CEO, EnerTech Environmental, Inc. (EnerTech)
EPA-HQ-RCRA-2008-0329-0674
EPA-HQ-RCRA-2008-0329-0675
Carl Johnson, Executive Director, Southern Pressure Treaters1 Association (SPTA)
EPA-HQ-RCRA-2008-0329-0676
Anne Jackson on behalf of Gary Pulford, Manager, Policy, Local Government Assistance
and Solid Waste Section, Municipal Division, Minnesota Pollution Control Agency
EPA-HQ-RCRA-2008-0329-0677
A. Bartczak
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-0678
K. Crose
EPA-HQ-RCRA-2008-0329-0679
J. Etter
EPA-HQ-RCRA-2008-0329-0680
D. Morphis
EPA-HQ-RCRA-2008-0329-0681
M. Athene
S. Monteiro
EPA-HQ-RCRA-2008-0329-0682
EPA-HQ-RCRA-2008-0329-0683
B. Pratt
Charles Logue, Director of Technical Services, Renewable Water Resources (ReWa)
EPA-HQ-RCRA-2008-0329-0684
EPA-HQ-RCRA-2008-0329-0685
A. Cheng
EPA-HQ-RCRA-2008-0329-0686
A. Daniels-Grefelt
A. Schmidt
EPA-HQ-RCRA-2008-0329-0687
EPA-HQ-RCRA-2008-0329-0688
A. Warfield
EPA-HQ-RCRA-2008-0329-0689
AJ Averett
B. Brewster
EPA-HQ-RCRA-2008-0329-0690
EPA-HQ-RCRA-2008-0329-0691
B. Krasner
EPA-HQ-RCRA-2008-0329-0692
B. Smith
EPA-HQ-RCRA-2008-0329-0693
Bill Perdue, Vice President, American Home Furnishings Alliance (AHFA)
EPA-HQ-RCRA-2008-0329-0694
C. MacGregor
C. Mullins
EPA-HQ-RCRA-2008-0329-0695
EPA-HQ-RCRA-2008-0329-0696
C. Nazor
EPA-HQ-RCRA-2008-0329-0697
C. Venable
EPA-HQ-RCRA-2008-0329-0698
D. Artley
EPA-HQ-RCRA-2008-0329-0699
D. Graham
EPA-HQ-RCRA-2008-0329-0700
D. Payne
EPA-HQ-RCRA-2008-0329-0701
D. Rawlings
D. Robinson
D. Simmer
D. Speck-Bartvnski
D. Walker
David L. Meeker, Senior Vice President, Scientific Services, National Renderers Association
(NRA)
EPA-HQ-RCRA-2008-0329-0702
EPA-HQ-RCRA-2008-0329-0703
EPA-HQ-RCRA-2008-0329-0704
EPA-HQ-RCRA-2008-0329-0705
EPA-HQ-RCRA-2008-0329-0706
EPA-HQ-RCRA-2008-0329-0707
E. and E. Hazard
EPA-HQ-RCRA-2008-0329-0708
F. Schilling
EPA-HQ-RCRA-2008-0329-0709
G. andL. Clark
EPA-HQ-RCRA-2008-0329-0710
S. Miller
S. Norton
EPA-HQ-RCRA-2008-0329-0711
EPA-HQ-RCRA-2008-0329-0712
Scott Thompson, Director, Land Protection Division, Oklahoma Department of
Environmental Quality
Steve Pearlman, Director of Environmental Services, Metro Wastewater Reclamation
District
EPA-HQ-RCRA-2008-0329-0713
EPA-HQ-RCRA-2008-0329-0714
Sue Engle, Controller on behalf of Bill Briggs, Oil Re-refming Company, Inc.
EPA-HQ-RCRA-2008-0329-0715
Terry Gillis, General Manager, Recovery 1, Inc.
EPA-HQ-RCRA-2008-0329-0716
Tom Julia, President, Composite Panel Association (CPA)
EPA-HQ-RCRA-2008-0329-0717
Trina L. Vielhauer, Chief, Bureau of Air Regulation, Division of Air Resource Management,
Florida Department of Environmental Protection
M. Guest
EPA-HQ-RCRA-2008-0329-0718
EPA-HQ-RCRA-2008-0329-0719
M. Haugen
EPA-HQ-RCRA-2008-0329-0720
M. Henderson
EPA-HQ-RCRA-2008-0329-0721
M. Miller
EPA-HQ-RCRA-2008-0329-0722
M. Pearson
EPA-HQ-RCRA-2008-0329-0723
M. Volkman
M. Walton
EPA-HQ-RCRA-2008-0329-0724
EPA-HQ-RCRA-2008-0329-0725
Marilyn Wetter on behalf of David P. Comerford, General Manager, Buffalo Sewer
Authority
EPA-HQ-RCRA-2008-0329-0726
Mary Gail on behalf of William G. Moore, General Manager, Environmental Services,
Metropolitan Council
EPA-HQ-RCRA-2008-0329-0727
Michelle Huey on behalf of Michael L. McGlinchy, Public Utilities Bureau Manager, City of
10 of275

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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)

Akron
EPA-HQ-RCRA-2008-0329-0728
Mitchell H. Bernstein, Van Ness Feldman on behalf of BMW Group, General Motors
Company, and Toyota
EPA-HQ-RCRA-2008-0329-0729
Myra H. Glover, Director, Environmental, Health and Safety, Entergy Services, Inc.
(Entergy)
EPA-HQ-RCRA-2008-0329-0730
P. Lowe
R. Christensen
EPA-HQ-RCRA-2008-0329-0731
EPA-HQ-RCRA-2008-0329-0732
R. Jenkinson
R. Kofler
EPA-HQ-RCRA-2008-0329-0733
EPA-HQ-RCRA-2008-0329-0734
R. Leibowitz
EPA-HQ-RCRA-2008-0329-0735
R. Ridge
R. Valdez
EPA-HQ-RCRA-2008-0329-0736
EPA-HQ-RCRA-2008-0329-0737
Raffaella Cristanetti, DuPont Applied Biosciences
EPA-HQ-RCRA-2008-0329-0738
Richard J. Lyons, Executive Director, Albany County Sewer District
EPA-HQ-RCRA-2008-0329-0739
Robert R. Scott, Director, Air Resources Division, New Hampshire Department of
Environmental Services (NHDES)
EPA-HQ-RCRA-2008-0329-0740
Robert R. Scott, Director, Air Resources Division, New Hampshire Department of
Environmental Services (NHDES)
EPA-HQ-RCRA-2008-0329-0741
Ron Foskey, Manager, Used-Oil-Fired Heating Products, Thomas & Betts - HVAC Division
(REZNOR)
EPA-HQ-RCRA-2008-0329-0742
S. Forbes
EPA-HQ-RCRA-2008-0329-0743
G. Anderson
EPA-HQ-RCRA-2008-0329-0744
G. Crouse
G. PatrA'n Mederos
EPA-HQ-RCRA-2008-0329-0745
EPA-HQ-RCRA-2008-0329-0746
G. Williams
EPA-HQ-RCRA-2008-0329-0747
Gideon Gradman on behalf of Bill Davis, President and CEO, Ze-gen, Inc.
H. Gwiazda
EPA-HQ-RCRA-2008-0329-0748
EPA-HQ-RCRA-2008-0329-0749
H. Lazzarini
EPA-HQ-RCRA-2008-0329-0750
I. Casillas
EPA-HQ-RCRA-2008-0329-0751
J. Franklin
EPA-HQ-RCRA-2008-0329-0752
J. Weills
Jeanie Grandstaff on behalf of Mark A. Haley, Director, City of Hopewell - Hopewell
Regional Wastewater Treatment Facility
Jim J. Pletl, Chief, Technical Services Division, Hampton Roads Sanitation District (HRSD)
EPA-HQ-RCRA-2008-0329-0753
EPA-HQ-RCRA-2008-0329-0754
EPA-HQ-RCRA-2008-0329-0755
K. Lozaw
EPA-HQ-RCRA-2008-0329-0756
Karisa Oquendo on behalf of Margo Reid Brown, Director, California Department of
Resources Recycling and Recovery
EPA-HQ-RCRA-2008-0329-0757
L. Slovenski
L. Stranaghan
EPA-HQ-RCRA-2008-0329-0758
EPA-HQ-RCRA-2008-0329-0759
Rhonda L. Bowen, President, Virginia Biosolids Council
EPA-HQ-RCRA-2008-0329-0760
T. andB. Ferguson
B. Lovejoy
EPA-HQ-RCRA-2008-0329-0761
EPA-HQ-RCRA-2008-0329-0762
B. LeBeau
EPA-HQ-RCRA-2008-0329-0763
V. Katz
EPA-HQ-RCRA-2008-0329-0764
L. McCracken
B. Moser
EPA-HQ-RCRA-2008-0329-0765
EPA-HQ-RCRA-2008-0329-0766
Thomas E. Cilimburg, President, Heatech Cleaning Systems and Equipment, Inc. (Heatech)
Stephen T. Smith on behalf of David A. Webb, Executive Director, Creosote Council
C. Lish
Gloria Griffith, Vice Chair, Tennessee Chapter Sierra Club
Michael P. Brady, Technical Services Supervisor, Environmental Services Department,
Colorado Springs Utilities
EPA-HQ-RCRA-2008-0329-0767
EPA-HQ-RCRA-2008-0329-0768
EPA-HQ-RCRA-2008-0329-0769
EPA-HQ-RCRA-2008-0329-0770
EPA-HQ-RCRA-2008-0329-0771
Gerald F. Smith, Jr., President, Vallev Proteins, Inc.
EPA-HQ-RCRA-2008-0329-0772
Jeffrey T. Miller, President and Executive Director, Treated Wood Council (TWC)
J. Lee
Travlor Champion, Vice President, Environmental Affairs, Georgia-Pacific, LLC (GP)
EPA-HQ-RCRA-2008-0329-0773
EPA-HQ-RCRA-2008-0329-0774
EPA-HQ-RCRA-2008-0329-0775
Thomas K. Walsh, Engineer - Director/Treasurer, Upper Blackstone Water Pollution
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)

Abatement District
EPA-HQ-RCRA-2008-0329-0776
Kathleen Wheeler, Resident Manager, Graphic Packaging International, Inc. (GPI)
EPA-HQ-RCRA-2008-0329-0777
Barry A. Brandt, Lanair Products, LLC (Lanair)
EPA-HQ-RCRA-2008-0329-0778
Bradley C. Lambert, Deputy Director, Virginia Department of Mines Minerals and Energy
(DMME)
EPA-HQ-RCRA-2008-0329-0779
C. Kolpitcke
EPA-HQ-RCRA-2008-0329-0780
Craig T. Kenworthy, Executive Director, Puget Sound Clean Air Agency
EPA-HQ-RCRA-2008-0329-0781
Dale M. Timmons, Principal, ARI Technologies, Inc.
EPA-HQ-RCRA-2008-0329-0782
Deb Hawkinson, Hardwood Federation
EPA-HQ-RCRA-2008-0329-0783
Derek D. Swick, Policy Advisor, Regulatory and Scientific Affairs, American Petroleum
Institute (API)
EPA-HQ-RCRA-2008-0329-0784
Louis Hengen, Fibrek, Inc.
Richard Malesich, Waste Oil Heater Sales Manager, A. & I. Distributors
Tomev Tuttle, NextEra Energy, Inc. (NEE)
EPA-HQ-RCRA-2008-0329-0785
EPA-HQ-RCRA-2008-0329-0786
EPA-HQ-RCRA-2008-0329-0787
William Turlev, Executive Director, Construction Materials Recycling Association (CMRA)
Yvonne Bolton, Board of Directors, Northeast Waste Management Officials' Association
(NEWMOA) on behalf of the Solid Waste Programs in the states of Connecticut, Maine,
Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont
EPA-HQ-RCRA-2008-0329-0788
EPA-HQ-RCRA-2008-0329-0790
L. Schermer
EPA-HQ-RCRA-2008-0329-0791
C. Jacobs
EPA-HQ-RCRA-2008-0329-0792
D. Torney
B. Pilcher
EPA-HQ-RCRA-2008-0329-0793
EPA-HQ-RCRA-2008-0329-0794
E. Omalley
J. Capozzelli
EPA-HQ-RCRA-2008-0329-0795
EPA-HQ-RCRA-2008-0329-0796
M. A. Sircely
EPA-HQ-RCRA-2008-0329-0797
W. Ebersberger
J. Davidson
EPA-HQ-RCRA-2008-0329-0798
EPA-HQ-RCRA-2008-0329-0799
Susan Parker Bodine, Barnes & Thornburg LLP on behalf of Used Oil Management
Association (UOMA)
EPA-HQ-RCRA-2008-0329-0800
Jeffery A. Steers, Director, Waste Division, Virginia Department of Environmental Quality
(DEQ)
D. Potter
EPA-HQ-RCRA-2008-0329-0801
EPA-HQ-RCRA-2008-0329-0802
G. Cadieux
S. Rekdal
EPA-HQ-RCRA-2008-0329-0803
EPA-HQ-RCRA-2008-0329-0804
G. Falsetta
EPA-HQ-RCRA-2008-0329-0805
R. Vosburg
EPA-HQ-RCRA-2008-0329-0806
D. Moore
EPA-HQ-RCRA-2008-0329-0807
P. Martin
W. L. Boucher
EPA-HQ-RCRA-2008-0329-0808
EPA-HQ-RCRA-2008-0329-0809
B. Vigars
EPA-HQ-RCRA-2008-0329-0810
D. Champagne
N. Charlton
EPA-HQ-RCRA-2008-0329-0811
EPA-HQ-RCRA-2008-0329-0812
J. Jordan
C. Mullen
EPA-HQ-RCRA-2008-0329-0813
EPA-HQ-RCRA-2008-0329-0814
N. Echols
EPA-HQ-RCRA-2008-0329-0815
M. Castaline
M. A. Dobler
EPA-HQ-RCRA-2008-0329-0816
EPA-HQ-RCRA-2008-0329-0817
S. Small
D. Weise
EPA-HQ-RCRA-2008-0329-0818
EPA-HQ-RCRA-2008-0329-0819
M. Howells
EPA-HQ-RCRA-2008-0329-0820
K. Floyd
R. Philbrick
EPA-HQ-RCRA-2008-0329-0821
EPA-HQ-RCRA-2008-0329-0822
J. Phillips
EPA-HQ-RCRA-2008-0329-0823
M. Weimer
EPA-HQ-RCRA-2008-0329-0824
E. Bogle
EPA-HQ-RCRA-2008-0329-0825
C. Langlois
12 of275

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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-0826
J. Lang
EPA-HQ-RCRA-2008-0329-0827
F. Carr
EPA-HQ-RCRA-2008-0329-0828
P. Grouser
EPA-HQ-RCRA-2008-0329-0829
D. Armor
K. Vasko
EPA-HQ-RCRA-2008-0329-0830
EPA-HQ-RCRA-2008-0329-0831
S. Quirarte
J. Cooper
EPA-HQ-RCRA-2008-0329-0832
EPA-HQ-RCRA-2008-0329-0833
C. Fletcher
EPA-HQ-RCRA-2008-0329-0834
H. N. Hanna
B. Dennie
EPA-HQ-RCRA-2008-0329-0835
EPA-HQ-RCRA-2008-0329-0836
M. Fitzgerald
EPA-HQ-RCRA-2008-0329-0837
J. Tuber
A. Faraldo
EPA-HQ-RCRA-2008-0329-0838
EPA-HQ-RCRA-2008-0329-0839
S. Lowen
EPA-HQ-RCRA-2008-0329-0840
A. Stevenson
EPA-HQ-RCRA-2008-0329-0841
Gregory E. Conrad, Executive Director, Interstate Mining Compact Commission and
Michael P. Garner, President, National Association of Abandoned Mine Land Programs
EPA-HQ-RCRA-2008-0329-0842
Dirk J. Krouskop, Vice President, Safety, Health and Environment, MeadWestvaco
Corporation (MWV)
Andre Dight, Poultry Implementations Manager, Biomass Heating Solutions Ltd (BHSL)
EPA-HQ-RCRA-2008-0329-0843
EPA-HQ-RCRA-2008-0329-0844
David W. Hacker, Attorney-Environmental, Law Department, United States Steel
Corporation (USS)
EPA-HQ-RCRA-2008-0329-0845
V. Nguyen
EPA-HQ-RCRA-2008-0329-0846
T. Dukes
EPA-HQ-RCRA-2008-0329-0847
I. Lillien
J. Guinnessev
T. Duffy
B. McLaughlin
R. Waller
EPA-HQ-RCRA-2008-0329-0848
EPA-HQ-RCRA-2008-0329-0849
EPA-HQ-RCRA-2008-0329-0850
EPA-HQ-RCRA-2008-0329-0851
EPA-HQ-RCRA-2008-0329-0852
J. Pence
J. Carlsen
EPA-HQ-RCRA-2008-0329-0853
EPA-HQ-RCRA-2008-0329-0854
E. Medeiros
T. Walker
EPA-HQ-RCRA-2008-0329-0855
EPA-HQ-RCRA-2008-0329-0856
S. Gallucci
EPA-HQ-RCRA-2008-0329-0857
L. Miller
EPA-HQ-RCRA-2008-0329-0858
L. Brvant
EPA-HQ-RCRA-2008-0329-0859
P. Thomas
C. Savre
EPA-HQ-RCRA-2008-0329-0860
EPA-HQ-RCRA-2008-0329-0861
Anonymous public comment
EPA-HQ-RCRA-2008-0329-0862
Chris Reynolds on behalf of Anthony Colosimo, CEO, Phoenix Renewable Resources
(Phoenix)
EPA-HQ-RCRA-2008-0329-0863
Bruce J. Parker, President and CEO, National Solid Wastes Management Association
(NSWMA)
EPA-HQ-RCRA-2008-0329-0864
Jim Moran, FWD Power
EPA-HQ-RCRA-2008-0329-0865
Craig S. Campbell, Vice President, Environment and Government Affairs, Lafarge North
America a€" Cement Division (Lafarge)
EPA-HQ-RCRA-2008-0329-0866
John J. Petchul, Staff Environmental Engineer, Greif Packaging LLC
EPA-HQ-RCRA-2008-0329-0867
L. Inman
Morris Mantey, Clean Burn Inc
Randy Thurman, Executive Director, Arkansas Environmental Federation (AEF)
Kent O. Freeman, President, Innovative Resources, Inc.
EPA-HQ-RCRA-2008-0329-0868
EPA-HQ-RCRA-2008-0329-0869
EPA-HQ-RCRA-2008-0329-0870
EPA-HQ-RCRA-2008-0329-0871
Paul Noe, Vice President, Public Policy, American Forest & Paper Association (AF&PA)
EPA-HQ-RCRA-2008-0329-0872
Robert W. Glowinski, President, American Wood Council (AWC)
EPA-HQ-RCRA-2008-0329-0873
Charles R. Weber, Director, Engineering and Water Reclamation, Prince William County
Service Authority (PWCSA)
EPA-HQ-RCRA-2008-0329-0874
Jeffrey R. Klieve, Director, Environmental Affairs, Monsanto Company (Monsanto)
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-0875
Michael J. Rush and Louis P. Warchot, Counsel, Association of American Railroads (AAR)
EPA-HQ-RCRA-2008-0329-0876
B. Gudac
EPA-HQ-RCRA-2008-0329-0877
D. Boo the
EPA-HQ-RCRA-2008-0329-0878
B. and J. Epstein
B. Gardner
EPA-HQ-RCRA-2008-0329-0879
EPA-HQ-RCRA-2008-0329-0880
L. Adams
L. May
EPA-HQ-RCRA-2008-0329-0881
EPA-HQ-RCRA-2008-0329-0882
K. Brecka
EPA-HQ-RCRA-2008-0329-0883
A. Castro
J. Cassidy
EPA-HQ-RCRA-2008-0329-0884
EPA-HQ-RCRA-2008-0329-0885
M. Brunt
EPA-HQ-RCRA-2008-0329-0886
D. Statland
P. Gordon
EPA-HQ-RCRA-2008-0329-0887
EPA-HQ-RCRA-2008-0329-0888
K. Brush
EPA-HQ-RCRA-2008-0329-0889
J. Hartman
EPA-HQ-RCRA-2008-0329-0890
P. Quillian
EPA-HQ-RCRA-2008-0329-0891
J. Wagner
L. Rossi
EPA-HQ-RCRA-2008-0329-0892
EPA-HQ-RCRA-2008-0329-0893
K. Jackson
EPA-HQ-RCRA-2008-0329-0894
J. Epstein
E. D'Urso
EPA-HQ-RCRA-2008-0329-0895
EPA-HQ-RCRA-2008-0329-0896
J. K. Hadcroft
EPA-HQ-RCRA-2008-0329-0897
J. Mucci
EPA-HQ-RCRA-2008-0329-0898
J. Raven
EPA-HQ-RCRA-2008-0329-0899
J. Curtis
EPA-HQ-RCRA-2008-0329-0900
C. Appenzeller
K. Kula
S. Heffernon
J. Scheidt
P. Brown
T. White-Henry
A. Eppler
EPA-HQ-RCRA-2008-0329-0901
EPA-HQ-RCRA-2008-0329-0902
EPA-HQ-RCRA-2008-0329-0903
EPA-HQ-RCRA-2008-0329-0904
EPA-HQ-RCRA-2008-0329-0905
EPA-HQ-RCRA-2008-0329-0906
EPA-HQ-RCRA-2008-0329-0907
F. Hill
EPA-HQ-RCRA-2008-0329-0908
B. Arana
Ron Barmore, Managing Partner, Energy Launch Developments, LLC
EPA-HQ-RCRA-2008-0329-0909
EPA-HQ-RCRA-2008-0329-0910
Richard Gertler, General Manager, Heating Alternatives, Inc.
John W. Carroll, Pepper Hamilton LLP on behalf of Verallia
EPA-HQ-RCRA-2008-0329-0911
EPA-HQ-RCRA-2008-0329-0912
Robert L. Kohnen, Vice President, Svmbiotic Energy, LLC
EPA-HQ-RCRA-2008-0329-0913
B. Breckenridge
P. Lanni
EPA-HQ-RCRA-2008-0329-0914
EPA-HQ-RCRA-2008-0329-0915
L. Steele
W. Foote
EPA-HQ-RCRA-2008-0329-0916
EPA-HQ-RCRA-2008-0329-0917
A. J. Melman
EPA-HQ-RCRA-2008-0329-0918
L. Leckie
D. M. Brouse
EPA-HQ-RCRA-2008-0329-0919
EPA-HQ-RCRA-2008-0329-0920
D. Burns
P. Baker
EPA-HQ-RCRA-2008-0329-0921
EPA-HQ-RCRA-2008-0329-0922
A. Mcgarry
EPA-HQ-RCRA-2008-0329-0923
C. Easterling
P. Daniels
EPA-HQ-RCRA-2008-0329-0924
EPA-HQ-RCRA-2008-0329-0925
B. Davis
J. W. McManus
EPA-HQ-RCRA-2008-0329-0926
EPA-HQ-RCRA-2008-0329-0927
B. Coulson
EPA-HQ-RCRA-2008-0329-0928
J. Marsh
EPA-HQ-RCRA-2008-0329-0929
F. Montgomery
EPA-HQ-RCRA-2008-0329-0930
D. Duda
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-0931
P. Brownlee
EPA-HQ-RCRA-2008-0329-0932
C. Hemingway
EPA-HQ-RCRA-2008-0329-0933
V. Faulkner
EPA-HQ-RCRA-2008-0329-0934
M. Leven
J. Hamann
EPA-HQ-RCRA-2008-0329-0935
EPA-HQ-RCRA-2008-0329-0936
M. A. McDonald
C. Swimsawav
EPA-HQ-RCRA-2008-0329-0937
EPA-HQ-RCRA-2008-0329-0938
C. Ibata
EPA-HQ-RCRA-2008-0329-0939
T. Jackson
W. and P. Talbert
EPA-HQ-RCRA-2008-0329-0940
EPA-HQ-RCRA-2008-0329-0941
J. Lynch
EPA-HQ-RCRA-2008-0329-0942
T. L. Hamzy
M. Kohn
EPA-HQ-RCRA-2008-0329-0943
EPA-HQ-RCRA-2008-0329-0944
C. Garcia
EPA-HQ-RCRA-2008-0329-0945
C. Vallone
EPA-HQ-RCRA-2008-0329-0946
J. McCarthy
EPA-HQ-RCRA-2008-0329-0947
M. Hein
S. Gaskins
EPA-HQ-RCRA-2008-0329-0948
EPA-HQ-RCRA-2008-0329-0949
J. Christv
EPA-HQ-RCRA-2008-0329-0950
E. O'Dea
EPA-HQ-RCRA-2008-0329-0951
Robert Bennett President, Eco Heating Systems, Inc.
EPA-HQ-RCRA-2008-0329-0952
Robert C. SteideL President Virginia Association of Municipal Wastewater Agencies, Inc.
(VAMWA)
EPA-HQ-RCRA-2008-0329-0953
J. P. Maultsby, General Manager, Florida Plywoods, Inc.
EPA-HQ-RCRA-2008-0329-0954
Susan J. Miller, Vice President, Environment, Health and Safety, The Brick Industry
Association (BIA)
EPA-HQ-RCRA-2008-0329-0955
Jeffrey A. Crawford, Attorney General, Forest County Potawatomi Community
EPA-HQ-RCRA-2008-0329-0956
Nick Harbert, Cedar Grove Composting
EPA-HQ-RCRA-2008-0329-0957
James R. Roewer, Executive Director, Utility Solid Waste Activities Group (USWAG)
EPA-HQ-RCRA-2008-0329-0958
Alan B. Rubin, Principal, Envirostrategies, LLC
EPA-HQ-RCRA-2008-0329-0959
Carroll L. Missimer, Global Director-Environmental Affairs, P. H. Glatfelter Company
(Glatfelter)
EPA-HQ-RCRA-2008-0329-0960
Jeff White, Director of Environmental Stewardship, North American Operations, Newmont
Mining Corporation (Newmont)
EPA-HQ-RCRA-2008-0329-0961
Lee Zeugin, Counsel, Hunton & Williams LLP on behalf of Utility Air Regulatory Group
(UARG)
Jefferv S. Hannapel, The Policy Group, National Association for Surface Finishing (NASF)
Jerry Call, Executive Vice President, American Foundry Societv (AFS)
EPA-HQ-RCRA-2008-0329-0962
EPA-HQ-RCRA-2008-0329-0963
EPA-HQ-RCRA-2008-0329-0964
R. Fuchs
J. Taylor
P. Willis
R. Parris
F. Devlin
J. and L. Wingard
A. Myrick
EPA-HQ-RCRA-2008-0329-0965
EPA-HQ-RCRA-2008-0329-0966
EPA-HQ-RCRA-2008-0329-0967
EPA-HQ-RCRA-2008-0329-0968
EPA-HQ-RCRA-2008-0329-0969
EPA-HQ-RCRA-2008-0329-0970
EPA-HQ-RCRA-2008-0329-0971
M. Hauck
E. Norris
EPA-HQ-RCRA-2008-0329-0972
EPA-HQ-RCRA-2008-0329-0973
J. Cunningham
K. De Vier
EPA-HQ-RCRA-2008-0329-0974
EPA-HQ-RCRA-2008-0329-0975
J. Sideman
EPA-HQ-RCRA-2008-0329-0976
K. Dodge
R. Placone
EPA-HQ-RCRA-2008-0329-0977
EPA-HQ-RCRA-2008-0329-0978
J. Blair
N. Schick
EPA-HQ-RCRA-2008-0329-0979
EPA-HQ-RCRA-2008-0329-0980
R. Gordon
EPA-HQ-RCRA-2008-0329-0981
B. Trypaluk
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-0982
L. Young
EPA-HQ-RCRA-2008-0329-0983
J. Ehrlich
EPA-HQ-RCRA-2008-0329-0984
A. Ambler
EPA-HQ-RCRA-2008-0329-0985
P. Morello
S. Leone
EPA-HQ-RCRA-2008-0329-0986
EPA-HQ-RCRA-2008-0329-0987
E. Kernaghan
E. Claman
EPA-HQ-RCRA-2008-0329-0988
EPA-HQ-RCRA-2008-0329-0989
J. Kneidl
EPA-HQ-RCRA-2008-0329-0990
Pamela F. Faggert, Vice President and Chief Environmental Officer, Dominion Resources
Services, Inc. (Dominion)
EPA-HQ-RCRA-2008-0329-0991
Ross M. Patten, President and Chief Executive Officer, MaxWest Environmental Systems,
Inc. (MaxWest)
EPA-HQ-RCRA-2008-0329-0992
Clayton Gingerich, Gingerich Clean Burn, Inc.
EPA-HQ-RCRA-2008-0329-0993
J. Mahnken
M. Vanderhill
EPA-HQ-RCRA-2008-0329-0994
EPA-HQ-RCRA-2008-0329-0995
Y. Autrey-Schell
C. Moss
EPA-HQ-RCRA-2008-0329-0996
EPA-HQ-RCRA-2008-0329-0997
W. Jones
EPA-HQ-RCRA-2008-0329-0998
A. Glennon
M. Fogg
EPA-HQ-RCRA-2008-0329-0999
EPA-HQ-RCRA-2008-0329-1000
D. N. Orth
S. Wilson
EPA-HQ-RCRA-2008-0329-1001
EPA-HQ-RCRA-2008-0329-1002
E. Bindseil
EPA-HQ-RCRA-2008-0329-1003
M. Engelman
M. Neuendorf
EPA-HQ-RCRA-2008-0329-1004
EPA-HQ-RCRA-2008-0329-1005
M. Anton
EPA-HQ-RCRA-2008-0329-1006
S. Ransom
EPA-HQ-RCRA-2008-0329-1007
L. Penney
EPA-HQ-RCRA-2008-0329-1008
M. Rose
EPA-HQ-RCRA-2008-0329-1009
E. Craig
EPA-HQ-RCRA-2008-0329-1010
L. E. Johnson
EPA-HQ-RCRA-2008-0329-1011
R. Tschudy
EPA-HQ-RCRA-2008-0329-1012
Sarah Clark, Commissioner, Vermont Department of Forests, Parks and Recreation
EPA-HQ-RCRA-2008-0329-1013
Mike Blosser, Vice President, Environment, Health and Safety, LP Building Products, LP
Corporation
EPA-HQ-RCRA-2008-0329-1014
Julie Pippel, President, Maryland Association of Municipal Wastewater Agencies
(MAMWA)
EPA-HQ-RCRA-2008-0329-1015
Jennifer Avellana, Ohio Environmental Protection Agency
EPA-HQ-RCRA-2008-0329-1016
P. Mumm
EPA-HQ-RCRA-2008-0329-1017
J. Peterson
EPA-HQ-RCRA-2008-0329-1018
N. Hartz
D. Gustafson
J. Kavalunas
C. Jackson
M. Abell
P. Katz
J. Williams
A. Behnke
EPA-HQ-RCRA-2008-0329-1019
EPA-HQ-RCRA-2008-0329-1020
EPA-HQ-RCRA-2008-0329-1021
EPA-HQ-RCRA-2008-0329-1022
EPA-HQ-RCRA-2008-0329-1023
EPA-HQ-RCRA-2008-0329-1024
EPA-HQ-RCRA-2008-0329-1025
EPA-HQ-RCRA-2008-0329-1026
D. Collings
K. McAnnally
EPA-HQ-RCRA-2008-0329-1027
EPA-HQ-RCRA-2008-0329-1028
P. Sims
L. Wilson
EPA-HQ-RCRA-2008-0329-1029
EPA-HQ-RCRA-2008-0329-1030
G. R. Miller
EPA-HQ-RCRA-2008-0329-1031
Kristine M. Krause, Vice President Environmental, We Energies
Aaron Lowe, Vice President, Government Affairs, Automotive Aftermarket Industry
Association (AAIA)
EPA-HQ-RCRA-2008-0329-1032
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1033
G. Vinson Hell wig, Co-Chair, Air Toxics Committee, Michigan and Robert H. Colby, Co-
Chair, Air Toxics Committee, Tennessee, National Association of Clean Air Agencies
(NACAA)
EPA-HQ-RCRA-2008-0329-1034
Michel R. Benoit Executive Director, Cement Kiln Recycling Coalition (CKRC)
Kerry Kelly, Director, Federal Public Affairs, Waste Management (WM)
Dell Majure, Air Program Leader, Kimberly-Clark Corporation
Martin T. Booher, Dewey & LeBoeuf LLP on behalf of Ethan Allen Interiors, Inc.
Mary Sullivan Douglas on behalf of G. Vinson Hellwig and Robert H. Colby, National
Association of Clean AirAgencies (NACAA), Air Toxics Committee
Dave Hoheisel, Director of Door Core Operations, Marshfield Door Systems
EPA-HQ-RCRA-2008-0329-1035
EPA-HQ-RCRA-2008-0329-1036
EPA-HQ-RCRA-2008-0329-1037
EPA-HQ-RCRA-2008-0329-1038
EPA-HQ-RCRA-2008-0329-1039
EPA-HQ-RCRA-2008-0329-1040
Gary Melow, Director, Michigan Biomass
Jason Morin, Vice President of Environment and Government Affairs, Holcim (US) Inc.
EPA-HQ-RCRA-2008-0329-1041
EPA-HQ-RCRA-2008-0329-1042
Andrew Mangan, Executive Director, United States Business Council for Sustainable
Development
Randv D. Quintrell, Counsel, Georgia Paper & Forest Products Association, Inc. (GPFPA)
EPA-HQ-RCRA-2008-0329-1043
EPA-HQ-RCRA-2008-0329-1044
Rich Raiders, Environment and Sustainable Development Department, Arkema Inc.
(Arkema)
EPA-HQ-RCRA-2008-0329-1045
Gary N. Wilcox, President, Connecticut Cleaning & Heating Equipment
EPA-HQ-RCRA-2008-0329-1046
David P. Tennv, President and CEO, National Alliance of Forest Owners (NAFO)
EPA-HQ-RCRA-2008-0329-1047
Graham Drayton on behalf of Mary Graham, Senior Vice President, Public Policy/Regional
Advancement, Charleston Metro Chamber of Commerce (Chamber)
F. Elliott
EPA-HQ-RCRA-2008-0329-1048
EPA-HQ-RCRA-2008-0329-1049
A. Palmer
S. L. Laplante
EPA-HQ-RCRA-2008-0329-1050
EPA-HQ-RCRA-2008-0329-1051
W. Watts, Jr.
EPA-HQ-RCRA-2008-0329-1052
J. and P. Hockett
A. Johnston
EPA-HQ-RCRA-2008-0329-1053
EPA-HQ-RCRA-2008-0329-1054
A. Gilligan
EPA-HQ-RCRA-2008-0329-1055
R. and M. Swain
S. Chan
K. Egan
Z. Benjamin
L. Weiner
M. Ford and R. Marks
S. Miller
A. Stegehuis
EPA-HQ-RCRA-2008-0329-1056
EPA-HQ-RCRA-2008-0329-1057
EPA-HQ-RCRA-2008-0329-1058
EPA-HQ-RCRA-2008-0329-1059
EPA-HQ-RCRA-2008-0329-1060
EPA-HQ-RCRA-2008-0329-1061
EPA-HQ-RCRA-2008-0329-1062
EPA-HQ-RCRA-2008-0329-1063
A. Ake
C. McGraw
EPA-HQ-RCRA-2008-0329-1064
EPA-HQ-RCRA-2008-0329-1065
K.Jones
P. Harlow
EPA-HQ-RCRA-2008-0329-1066
EPA-HQ-RCRA-2008-0329-1067
R. Ripp
D. Ford
S. Burns
M. Snowden
J. Brown
A. Kaufman
L. Lithgow
R. Schuessler
L. Kierig
EPA-HQ-RCRA-2008-0329-1068
EPA-HQ-RCRA-2008-0329-1069
EPA-HQ-RCRA-2008-0329-1070
EPA-HQ-RCRA-2008-0329-1071
EPA-HQ-RCRA-2008-0329-1072
EPA-HQ-RCRA-2008-0329-1073
EPA-HQ-RCRA-2008-0329-1074
EPA-HQ-RCRA-2008-0329-1075
EPA-HQ-RCRA-2008-0329-1076
J. Nichols
EPA-HQ-RCRA-2008-0329-1077
C. Wells
M. Graf
EPA-HQ-RCRA-2008-0329-1078
EPA-HQ-RCRA-2008-0329-1079
J. Koss
E. Mirabella
EPA-HQ-RCRA-2008-0329-1080
EPA-HQ-RCRA-2008-0329-1081
John P. Shimshock, Senior Air Environmental Specialist, RRI Energy, Inc.
EPA-HQ-RCRA-2008-0329-1082
S. Elkevizth
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1083
N. Neima
EPA-HQ-RCRA-2008-0329-1084
R. Dickinson
EPA-HQ-RCRA-2008-0329-1085
D. K. Cinquemani
EPA-HQ-RCRA-2008-0329-1086
T. Magnani
D. Stanko
EPA-HQ-RCRA-2008-0329-1087
EPA-HQ-RCRA-2008-0329-1088
B. Flowers
B. Gingras
EPA-HQ-RCRA-2008-0329-1089
EPA-HQ-RCRA-2008-0329-1090
A. Fraser
EPA-HQ-RCRA-2008-0329-1091
S. Carrico
E. Obenaus
EPA-HQ-RCRA-2008-0329-1092
EPA-HQ-RCRA-2008-0329-1093
S. Rego-Ross
EPA-HQ-RCRA-2008-0329-1094
S. Brownrigg
M. Carano
EPA-HQ-RCRA-2008-0329-1095
EPA-HQ-RCRA-2008-0329-1096
J. West
EPA-HQ-RCRA-2008-0329-1097
D. Filipelli
EPA-HQ-RCRA-2008-0329-1098
N. and S. Kirschbaum
EPA-HQ-RCRA-2008-0329-1099
L. Hershev
P. G. Dennis
EPA-HQ-RCRA-2008-0329-1100
EPA-HQ-RCRA-2008-0329-1101
M. Britton
EPA-HQ-RCRA-2008-0329-1102
A. Goodwin
J. C. Stockton
EPA-HQ-RCRA-2008-0329-1103
EPA-HQ-RCRA-2008-0329-1104
D. Kleiman
EPA-HQ-RCRA-2008-0329-1105
S. Hawkins
EPA-HQ-RCRA-2008-0329-1106
W. Murrav
R. Mihalv
S. and D. Ritchie
J. Witte
J. Snow
J. Holkup
M. B. Hardy
J. Archuleta
J. B. Reid
EPA-HQ-RCRA-2008-0329-1107
EPA-HQ-RCRA-2008-0329-1108
EPA-HQ-RCRA-2008-0329-1109
EPA-HQ-RCRA-2008-0329-1110
EPA-HQ-RCRA-2008-0329-1111
EPA-HQ-RCRA-2008-0329-1112
EPA-HQ-RCRA-2008-0329-1113
EPA-HQ-RCRA-2008-0329-1114
EPA-HQ-RCRA-2008-0329-1115
S. C. Spurgeon
EPA-HQ-RCRA-2008-0329-1116
D. and A. Riley
A. Abdalian
EPA-HQ-RCRA-2008-0329-1117
EPA-HQ-RCRA-2008-0329-1118
M. Anderson
K. Querner
EPA-HQ-RCRA-2008-0329-1119
EPA-HQ-RCRA-2008-0329-1120
C. Bowsher
EPA-HQ-RCRA-2008-0329-1121
A. Collins
P. M. Williams
EPA-HQ-RCRA-2008-0329-1122
EPA-HQ-RCRA-2008-0329-1123
L. Crandall
H. Reading
EPA-HQ-RCRA-2008-0329-1124
EPA-HQ-RCRA-2008-0329-1125
D. Geraghty
EPA-HQ-RCRA-2008-0329-1126
C.	Lewis-Dougherty
D.	M. Nowacki
EPA-HQ-RCRA-2008-0329-1127
EPA-HQ-RCRA-2008-0329-1128
T. Wilson
A. Klein
EPA-HQ-RCRA-2008-0329-1129
EPA-HQ-RCRA-2008-0329-1130
K. G. Gubrud
EPA-HQ-RCRA-2008-0329-1131
A. Smith
T. Fox
EPA-HQ-RCRA-2008-0329-1132
EPA-HQ-RCRA-2008-0329-1133
N. Stecker
J. De Guzman
EPA-HQ-RCRA-2008-0329-1134
EPA-HQ-RCRA-2008-0329-1135
S. Holford
EPA-HQ-RCRA-2008-0329-1136
L. Stanfield
RMB Consulting & Research, Inc.
EPA-HQ-RCRA-2008-0329-1137
EPA-HQ-RCRA-2008-0329-1138
Tyrone P. Wilson on behalf of Andrew T. O'Hare, Vice President Regulatory Affairs,
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)

Portland Cement Association (PCA)
EPA-HQ-RCRA-2008-0329-1139
Tyrone P. Wilson on behalf of Andrew T. O'Hare, Vice President Regulatory Affairs,
Portland Cement Association (PCA)
EPA-HQ-RCRA-2008-0329-1140
Tyrone P. Wilson on behalf of Andrew T. O'Hare, Vice President Regulatory Affairs,
Portland Cement Association (PCA)
EPA-HQ-RCRA-2008-0329-1141
Tyrone P. Wilson on behalf of Andrew T. O'Hare, Vice President Regulatory Affairs,
Portland Cement Association (PCA)
EPA-HQ-RCRA-2008-0329-1142
Tyrone P. Wilson on behalf of Andrew T. OHare, Vice President Regulatory Affairs,
Portland Cement Association (PCA)
EPA-HQ-RCRA-2008-0329-1143
Tyrone P. Wilson on behalf of Andrew T. OHare, Vice President Regulatory Affairs,
Portland Cement Association (PCA)
P. Hall
EPA-HQ-RCRA-2008-0329-1144
EPA-HQ-RCRA-2008-0329-1145
M. Howard
M. Leach
EPA-HQ-RCRA-2008-0329-1146
EPA-HQ-RCRA-2008-0329-1147
T. Lincoln
EPA-HQ-RCRA-2008-0329-1148
M. Jusiel
N. Hamson
EPA-HQ-RCRA-2008-0329-1149
EPA-HQ-RCRA-2008-0329-1150
J. Kozak
S. Gaines
EPA-HQ-RCRA-2008-0329-1151
EPA-HQ-RCRA-2008-0329-1152
JB Wilson
EPA-HQ-RCRA-2008-0329-1153
K. Stern
Jeremy Denton, Executive Director, Filter Manufacturers Council
EPA-HQ-RCRA-2008-0329-1154
EPA-HQ-RCRA-2008-0329-1155
Douglas I. Greenhaus, Director, Environment Health and Safety, National Automobile
Dealers Association (NADA)
EPA-HQ-RCRA-2008-0329-1156
Debra J. Jezouit and Megan H. Berge, Baker Botts L.L.P. on behalf of Class of'85
Regulatory Response Group
Garv A. Molchan, Vice President Environmental Affairs, Essroc Cement Corp. (Essroc)
EPA-HQ-RCRA-2008-0329-1157
EPA-HQ-RCRA-2008-0329-1158
Jeff Shumaker on behalf of David M. Riser, Vice President, Environmental, Health and
Safetv and Sustainabilitv, International Paper Company
EPA-HQ-RCRA-2008-0329-1159
Stephen E. Woock, EHS&S Federal Regulatory Affairs Manager, Weyerhaeuser Company
EPA-HQ-RCRA-2008-0329-1160
John L. Wittenborn, Kelley Drye & Warren LLP on behalf of Steel Manufacturers
Association (SMA), et al.
Steven Jarvis, Executive Director, Missouri Forest Products Association (MFPA)
EPA-HQ-RCRA-2008-0329-1161
EPA-HQ-RCRA-2008-0329-1162
Erik Bakken, Manager, Corporate Environmental Services and Land Management, Tucson
Electric Power Company
EPA-HQ-RCRA-2008-0329-1163
Brian Hanev on behalf of James Devlin, Chief Executive Officer, Thermo Fluids Inc. (TFI)
Jim Jakubiak, Environmental Administrator, Schnizer Steel Industries, Inc.
Jim Griffin, Senior Director, American Chemistry Council (ACC)
Sarah E. Amick, Environmental Counsel, Rubber Manufacturers Association (RMA)
Vernice Miller- Travis, Maryland Commission on Environmental Justice and Sustainable
Communities
EPA-HQ-RCRA-2008-0329-1164
EPA-HQ-RCRA-2008-0329-1165
EPA-HQ-RCRA-2008-0329-1166
EPA-HQ-RCRA-2008-0329-1167
EPA-HQ-RCRA-2008-0329-1168
David A. Buff, Principal Engineer, Golder Associates on behalf of New Hope Power
Company (NHPC)
EPA-HQ-RCRA-2008-0329-1169
Eric P. Bock, Law Offices of Eric P. Bock, PLLC on behalf of West Coast Refuse &
Recycling Coalition (WCRRC)
Robert D. Bessette, President, Council of Industrial Boiler Owners (CIBO)
EPA-HQ-RCRA-2008-0329-1170
EPA-HQ-RCRA-2008-0329-1171
David A. Buff, Golder Associates on behalf of Florida Sugar Industry (FSI)
EPA-HQ-RCRA-2008-0329-1172
Fred Gordon, Senior Environmental Specialist, Herman Miller, Inc.
EPA-HQ-RCRA-2008-0329-1173
Paul R. Pike, Environmental Science Executive - Environmental Services, Ameren
Corporation (Ameren)
EPA-HQ-RCRA-2008-0329-1174
David Mickey, Blue Ridge Environmental Defense League
EPA-HQ-RCRA-2008-0329-1175
Krishna Parameswaran, Director, Environmental Services and Compliance Assurance,
Environmental Affairs Department, ASARCO LLC
EPA-HQ-RCRA-2008-0329-1176
Scott Gardner, Managing Director of US Renewables Group and President of Niagara
Generation, LLC
EPA-HQ-RCRA-2008-0329-1177
Scott Gardner, Managing Director of US Renewables Group and President of Niagara
Generation, LLC
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1178
J. Anderson
EPA-HQ-RCRA-2008-0329-1179
Glen P. Kedzie, Vice President and Environmental Counsel, American Trucking
Associations, Inc. (ATA)
EPA-HQ-RCRA-2008-0329-1180
Basil G. Constantelos, Managing Director, Environmental Services, Edison Mission Energy
(EME)
EPA-HQ-RCRA-2008-0329-1181
Amanda McGennis, Senior Vice President, Arizona Chapter Associated General Contractors
(AZAGC)
EPA-HQ-RCRA-2008-0329-1182
Amy Chastain, Executive Director, Bay Area Clean Water Agencies (BACWA)
EPA-HQ-RCRA-2008-0329-1183
Rolen E. Ferris, President/CEO, Team Rahal, Inc. dba Bobby Rahal Honda
EPA-HQ-RCRA-2008-0329-1184
Mylan Williams, Hy-Flo Equipment Co., Inc.
Wayne Gieselman, Administrator, Environmental Services Division, Iowa Department of
Natural Resources (IDNR)
EPA-HQ-RCRA-2008-0329-1185
EPA-HQ-RCRA-2008-0329-1186
David L. Wagger, Ph.D., Director of Environmental Management, Institute of Scrap
Recycling Industries, Inc (ISRI)
Paul Kramer, President Koda Energy, LLC, Minnesota
EPA-HQ-RCRA-2008-0329-1187
EPA-HQ-RCRA-2008-0329-1188
Anthony R. Hatton, P.G., Director, Division of Waste Management, Kentucky Division of
Waste Management (KY DWM)
EPA-HQ-RCRA-2008-0329-1189
Rolen E. Ferris, President/CEO, Team Rahal of Mechanicsburg, Inc. dba Bobby Rahal
Lexus
EPA-HQ-RCRA-2008-0329-1190
Eileen A. Sottile, Vice President, Government Affairs, Government Affairs, LKQ
Corporation
EPA-HQ-RCRA-2008-0329-1191
John M. Cullen, Director, Health, Safety & Environmental Affairs, Masco Corporation
(Masco)
EPA-HQ-RCRA-2008-0329-1192
Ned Beecher, Executive Director, North East Biosolids and Residuals Association (NEBRA)
EPA-HQ-RCRA-2008-0329-1193
Joe Jackson, President, Power Cleaning Equipment, Inc.
EPA-HQ-RCRA-2008-0329-1194
Paul Rankin, President, Reusable Industrial Packaging Association, Inc. (RIPA)
Paul L. Roy, President Rovco Distributors, Inc.
Paul Fiore, Executive Vice President, Service Station Dealers of America and Allied Trades
(SSDA-AT)
EPA-HQ-RCRA-2008-0329-1195
EPA-HQ-RCRA-2008-0329-1196
EPA-HQ-RCRA-2008-0329-1197
Roy Littlefield, Executive Vice President, Tire Industry Association (TLA)
EPA-HQ-RCRA-2008-0329-1198
Rolen E. Ferris, President/CEO, Team Rahal of Mechanic sburg, Inc. dba Bobby Rahal
Toyota
Logan R. Olds, General Manager, Victor Valley Wastewater Reclamation Authority
EPA-HQ-RCRA-2008-0329-1199
EPA-HQ-RCRA-2008-0329-1200
Suzanne Bangert, Administrator, Air & Waste Division, State of Wisconsin Department of
Natural Resources
M. H. Freeman
EPA-HQ-RCRA-2008-0329-1201
EPA-HQ-RCRA-2008-0329-1202
Louis Zeller, Science Director, Blue Ridge Environmental Defense League
EPA-HQ-RCRA-2008-0329-1203
Todd A. Tolbert, Environmental Analyst II, Associated Electric Cooperative, Inc. (AECI)
Curt Lewis, President, A & A Auto and Truck Parts, Inc.
EPA-HQ-RCRA-2008-0329-1204
EPA-HQ-RCRA-2008-0329-1205
Shelagh Connelly, President, Resource Management, Inc.
L. Simpson
EPA-HQ-RCRA-2008-0329-1206
EPA-HQ-RCRA-2008-0329-1207
Kamran Khan, Owner, Lancer Equipment Company
EPA-HQ-RCRA-2008-0329-1208
Griff Laslev, President and owner, A&I Parts Center, Inc.
Madelent Karlositsch, Stonv Brook Regional Sewerage Authority
EPA-HQ-RCRA-2008-0329-1209
EPA-HQ-RCRA-2008-0329-1210
Gary Carpenter, Kansas Auto Repair Inc.
EPA-HQ-RCRA-2008-0329-1211
Howard Marks, Director Environment, Health and Safety
Beverly Kerr, A Storvbook Farm Christian School
EPA-HQ-RCRA-2008-0329-1212
EPA-HQ-RCRA-2008-0329-1213
B. Wvgand
EPA-HQ-RCRA-2008-0329-1214
B. Sweatt
EPA-HQ-RCRA-2008-0329-1215
J. Brvson
EPA-HQ-RCRA-2008-0329-1216
C. L. Moss _
F. Parks
EPA-HQ-RCRA-2008-0329-1217
EPA-HQ-RCRA-2008-0329-1218
C. M. Poole
EPA-HQ-RCRA-2008-0329-1219
W. Blackley
F. Stanback
EPA-HQ-RCRA-2008-0329-1220
EPA-HQ-RCRA-2008-0329-1221
B. Howell
T. Carney
EPA-HQ-RCRA-2008-0329-1222
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1223
Anonymous public comment
EPA-HQ-RCRA-2008-0329-1224
Brad Rose, Morris Rose Auto Parts
EPA-HQ-RCRA-2008-0329-1225
F. Kilgore
EPA-HQ-RCRA-2008-0329-1226
R. N. Fischer
D. Tanner
EPA-HQ-RCRA-2008-0329-1227
EPA-HQ-RCRA-2008-0329-1228
Adam M. Sackenheim, Regulatory Compliance Manager, Butler County (Ohio) Water and
Sewer Department (BCWS)
William Flynt, President, Flyntloc, Inc.
EPA-HQ-RCRA-2008-0329-1229
EPA-HQ-RCRA-2008-0329-1230
Robert F. Stevens, President, Energvlogic
Seth Voyles, Manager, Government Affairs on behalf of Don Kaiser, Executive Director,
Pellet Fuels Institute (PFI)
EPA-HQ-RCRA-2008-0329-1232
EPA-HQ-RCRA-2008-0329-1233
J. Ellis, Service Manager, Kenworth Northwest, Inc.
EPA-HQ-RCRA-2008-0329-1234
Win W. Maynard Sr., President, Powerlube, Inc.
EPA-HQ-RCRA-2008-0329-1235
Phillip D. Davis, Chief, Solid Waste Branch - Land Division, Alabama Department of
Environmental Management (ADEM)
EPA-HQ-RCRA-2008-0329-1236
submitted by Terry G. Hoadlev, General Manager, Tire World Inc.
submitted by Sean Coffey, Plant Manager, Flakeboard Company Ltd.
M.A. Associates, Inc.
Dean Carson, Branch Manager, Kenworth Northwest-Aberdeen, Kenworth Northwest, Inc.
EPA-HQ-RCRA-2008-0329-1237
EPA-HQ-RCRA-2008-0329-1238
EPA-HQ-RCRA-2008-0329-1239
EPA-HQ-RCRA-2008-0329-1240
Peter J. Albrecht, Peters Auto Wrecking
Patricia Wirth, President Automotive Oil Change Association (AOCA)
EPA-HQ-RCRA-2008-0329-1241
EPA-HQ-RCRA-2008-0329-1242
Peter Albrecht, Peters Auto Wrecking
Henrv Fenimore, Vice President B & F Towing Co.
EPA-HQ-RCRA-2008-0329-1243
EPA-HQ-RCRA-2008-0329-1244
Larry R. Shaw, President/Owner, Shaw Auto Parts, Inc.
Mark Tauschek, Owner, Kewaskum Auto Recyclers
Eric E. Boyd, Sevfarth & Shaw Attorneys LLP on behalf of Jeffrey Lang, Rhodia, Inc.
Scott Kuhn, Vice President Environmental Compliance, Clean Harbors Environmental
Services
Fadi K. Mourad, Manager of Environmental Affairs, DTE Energy Services
EPA-HQ-RCRA-2008-0329-1245
EPA-HQ-RCRA-2008-0329-1246
EPA-HQ-RCRA-2008-0329-1247
EPA-HQ-RCRA-2008-0329-1248
EPA-HQ-RCRA-2008-0329-1249
Keith McCoy, Vice President, Energy and Resources Policy, National Association of
Manufacturers
Don Gebhardt on behalf of Larry L. Detjen, Senior Vice President, US Installer Channels,
Valvoline/Ashland, Inc.
EPA-HQ-RCRA-2008-0329-1250
EPA-HQ-RCRA-2008-0329-1251
Bill Wemhoff, Senior Principal, Environmental Policy, National Rural Electric Cooperative
Association (NRECA)
EPA-HQ-RCRA-2008-0329-1252
Mike Begin, Sawtooth Lubrication LLC
EPA-HQ-RCRA-2008-0329-1253
Curtis W. Swanson, Provisional Director, Plant Operations, Central Contra Costa Sanitary
District (CCCSD)
Robert E. Cleaves, President, Biomass Power Association (BPA)
EPA-HQ-RCRA-2008-0329-1255
EPA-HQ-RCRA-2008-0329-1256
Frank B. Schofield, President BDS Waste Disposal, Inc.
EPA-HQ-RCRA-2008-0329-1257
David R. Case, Executive Director, Environmental Technology Council (ETC)
Terrv Walmsley, Fibrowatt LLC
EPA-HQ-RCRA-2008-0329-1258
EPA-HQ-RCRA-2008-0329-1259
Scan M. Oa€™Keefe, Director, Environmental Affairs, Alexander & Baldwin, Inc.
(A&B/Hawaiian Commercial and Sugar Company (HC&S)
James S. Pew, Staff Attorney, Earthjustice on behalf of Sierra Club and Earthjustice
EPA-HQ-RCRA-2008-0329-1260
EPA-HQ-RCRA-2008-0329-1261
Chris Hornback, Senior Director, Regulatory Affairs on behalf of Ken Kirk, Executive
Director, National Association of Clean Water Agencies (NACWA)
D. Shaver
EPA-HQ-RCRA-2008-0329-1262
EPA-HQ-RCRA-2008-0329-1263
Charles Johnson, Chair, Municipal D Waste Task Force, Solid Waste Committee,
Association of State and Territorial Solid Waste Management Officials (ASTWMO)
David Beatv, Oil stop. Chevron
EPA-HQ-RCRA-2008-0329-1264
EPA-HQ-RCRA-2008-0329-1265
Craig J. Anderson, Manager, Environmental Audit, Minnesota Power (MP), (ALLETE)
David R. Sherman, Director, Citv of Indianapolis
EPA-HQ-RCRA-2008-0329-1266
EPA-HQ-RCRA-2008-0329-1267
Russell Strader. Environmental Manager, Boise Cascade, L.L.C.
James C. Jackson, Director of Environment Boise, Inc.
Biomass Thermal Energv Council (BTEC)
EPA-HQ-RCRA-2008-0329-1268
EPA-HQ-RCRA-2008-0329-1269
EPA-HQ-RCRA-2008-0329-1270
Brad White, Manager, Avis Lube 104
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1271
Jerry W. Stewart, Director, Waste Resources Division, Department of Public Works, City of
Chattanooga
EPA-HQ-RCRA-2008-0329-1272
Rob Barton and Ralph Roberson, RMB Consulting & Research, Inc.
EPA-HQ-RCRA-2008-0329-1273
Scott D. Parker on behalf of Christopher Harris, General Counsel, NORA, An Association of
Responsible Recyclers
EPA-HQ-RCRA-2008-0329-1274
Tawny A. Bridgeford, Associate General Counsel, National Mining Association (NMA)
EPA-HQ-RCRA-2008-0329-1275
Steve Schliesser on behalf of Sheila C. Holman, Director, Division of Air Quality, North
Carolina Division of Air Quality (NC DAQ)
EPA-HQ-RCRA-2008-0329-1276
William L. Kovacs, Senior Vice President, Environment, Technology & Regulatory Affairs,
U.S. Department of Commerce
EPA-HQ-RCRA-2008-0329-1277
David C. Ailor, P.E., Vice President, Regulatory Affairs, National Oilseed Processors
Association (NOPA)
EPA-HQ-RCRA-2008-0329-1278
Thomas J. Whetham, P.E., President, New York Water Environment Association, Inc.
(NYWEA)
EPA-HQ-RCRA-2008-0329-1279
Jim Strutzenberg, President, Hotsv Cleaning Svstems
EPA-HQ-RCRA-2008-0329-1280
Jason A. Dagle, Safety and Environmental Manager, Wood-Mode, Inc.
Eric Schulz, Controller, AAA Auto Salvage, Minnesota
EPA-HQ-RCRA-2008-0329-1281
EPA-HQ-RCRA-2008-0329-1282
Debbie Johnston, Director, U.S. Public Affairs, AbitibiBowater, Inc.
EPA-HQ-RCRA-2008-0329-1283
Ellen Gulbinsky, Executive Director, Association of Environmental Authorities (AEA)
Carol S. Sim, Director, Environmental Affairs, Alaska Airlines
EPA-HQ-RCRA-2008-0329-1284
EPA-HQ-RCRA-2008-0329-1285
Karen Pallansch, Engineer-Director, Alexandria Sanitation Authority (ASA)
EPA-HQ-RCRA-2008-0329-1286
Matt Tweedv. President. AMB Tools and Equipment
EPA-HQ-RCRA-2008-0329-1287
Mark Premo. P.E.. General Manager, Anchorage Water and Wastewater Utility (AWWU)
EPA-HQ-RCRA-2008-0329-1288
Robert Androsigho. Division Superintendent, Water Pollution Control Division, Township
ol Wayne, NJ
Stephen Murphv, General Manager, Anthonv Forest Products Company (AFP)
EPA-HQ-RCRA-2008-0329-1289
EPA-HQ-RCRA-2008-0329-1290
Tatyana Arsh, P.E., President, Association of Ohio Metropolitan Wastewater Agencies
(AOMWA)
EPA-HQ-RCRA-2008-0329-1291
Derek D. Swick, Policy Advisor, American Petroleum Institute (API)
EPA-HQ-RCRA-2008-0329-1292
Steve Trussell, Executive Director, Arizona Rock Products Association (ARPA)
EPA-HQ-RCRA-2008-0329-1293
Rodney A. Trahan, President, Arrow Equipment, Inc.
EPA-HQ-RCRA-2008-0329-1294
Robert P. Seltzer, Instant Lube
EPA-HQ-RCRA-2008-0329-1295
Jay Brosten, Vice President, Auto Parts City, Inc.
EPA-HQ-RCRA-2008-0329-1296
B. Goede
EPA-HQ-RCRA-2008-0329-1297
Richard Beardslee, Superintendent, City of Battle Creek Wastewater Treatment Plant
EPA-HQ-RCRA-2008-0329-1298
Jim Quinten, President, Automotive Parts and Service Association (APSA)
EPA-HQ-RCRA-2008-0329-1299
Theresa L. Bennington, Owner, B&B Auto Salvage, Inc.
EPA-HQ-RCRA-2008-0329-1300
John P. Lacv, Integrated Solid Waste Program Manager, NAVFAC Northwest
Keith Brady, Chief, Surface Mining Section, Bureau of Mining and Reclamation,
Pennsylvania Department of Environmental Protection
EPA-HQ-RCRA-2008-0329-1301
EPA-HQ-RCRA-2008-0329-1302
Mike Swift Trails End Auto & Truck Salvage, Inc.
EPA-HQ-RCRA-2008-0329-1303
Edward Bortz, Mill Manager, SP Newsprint Co. LLC
Dawn M. Helms, Vice President of Operations, CRM Company
EPA-HQ-RCRA-2008-0329-1304
EPA-HQ-RCRA-2008-0329-1305
Ted Michaels, President, Energy Recovery Council (ERC)
EPA-HQ-RCRA-2008-0329-1306
Steve Hagle on behalf of Mark R. Vickery, Executive Director, Texas Commission on
Environmental Quality (TCEQ)
EPA-HQ-RCRA-2008-0329-1307
James Brooks, Director, Bureau of Air Quality and Paula M. Clark, Director, Division of
Solid Waste Management, Bureau of Remediation and Waste Management, Main
Department of Environmental Protection (DEP)
EPA-HQ-RCRA-2008-0329-1308
S. Lorenz
EPA-HQ-RCRA-2008-0329-1309
William Freese, Director, Huron Environmental Activist League
E. M. T. ONan, Director, Protect All Children's Environment
EPA-HQ-RCRA-2008-0329-1310
EPA-HQ-RCRA-2008-0329-1311
S. M. Berkman
EPA-HQ-RCRA-2008-0329-1312
James C. Gauntt, Executive Director, Railway Tie Association (RTA)
EPA-HQ-RCRA-2008-0329-1313
Michael Ruffini, Victory Lane Quick Oil Change
EPA-HQ-RCRA-2008-0329-1314
L. Thornton
EPA-HQ-RCRA-2008-0329-1315
PMI Ash Technologies, LLC
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1316
K. Selock
EPA-HQ-RCRA-2008-0329-1317
Sally Keating Nyren, Manager of Environmental, Health & Safety, The Metropolitan
District (MDC)
EPA-HQ-RCRA-2008-0329-1318
Steven Glenn Barringer and Emily C. Schilling, Holland & Hart LLP on behalf of Precious
Metals Producers (PMP)
EPA-HQ-RCRA-2008-0329-1319
Michael E. Wilson, Chief Executive Officer, Automotive Recyclers Association (ARA)
EPA-HQ-RCRA-2008-0329-1320
Harry N. Monck, Executive Director, Delaware Auto and Truck Recyclers Association
(DATRA) _
Steven Hughes, Equipment Distributors
EPA-HQ-RCRA-2008-0329-1321
EPA-HQ-RCRA-2008-0329-1322
Rolen E. Ferris, President/Chief Executive Officer (CEO), Team Rahal of Silver Spring,
Inc., dba Bobby Rahal Acura
Anonymous public comment
EPA-HQ-RCRA-2008-0329-1323
EPA-HQ-RCRA-2008-0329-1324
Dwight Howard Jr., Director, Supplier Relations for APU Solutions
EPA-HQ-RCRA-2008-0329-1325
Rick Morrow, Vice President M & M Auto Parts, Incorporated
EPA-HQ-RCRA-2008-0329-1326
Robert E. Cleaves, President, Biomass Power Association (BPA)
S. A. Simpson
P. D. Holland
EPA-HQ-RCRA-2008-0329-1327
EPA-HQ-RCRA-2008-0329-1328
EPA-HQ-RCRA-2008-0329-1329
L. Cook
Rolen E. Ferris, President/Chief Executive Officer (CEO), Team Rahal of South Hills, Inc.
dba Bobby Rahal BMW of South Hills
EPA-HQ-RCRA-2008-0329-1330
EPA-HQ-RCRA-2008-0329-1331
Greg Kester, Biosolids Program Manager, California Association of Sanitation Agencies
(CASA)
EPA-HQ-RCRA-2008-0329-1332
J. Bruce
EPA-HQ-RCRA-2008-0329-1333
Lori Jondron, CPA, RoadRunner Body and Paint
Nancv Cave, Coastal Conservation League
EPA-HQ-RCRA-2008-0329-1334
EPA-HQ-RCRA-2008-0329-1335
Jackie Kepke, P.E., Program Manager, California Wastewater Climate Change Group
(CWCCG)
EPA-HQ-RCRA-2008-0329-1336
Frank J. Pinnisi Jr., President, Quick Change Inc.
EPA-HQ-RCRA-2008-0329-1337
C. Roberts
Shannon Binns, Executive Director, Sustain Charlotte
L. Johnson
EPA-HQ-RCRA-2008-0329-1338
EPA-HQ-RCRA-2008-0329-1339
EPA-HQ-RCRA-2008-0329-1340
J.R., Jus 10 Time Mobile Lube
EPA-HQ-RCRA-2008-0329-1341
Larrv Bush, Larry Bush's Riverside Tire
EPA-HQ-RCRA-2008-0329-1342
William Gupton, Chair, Central Piedmont Group of the NC Chapter of the Sierra Club
EPA-HQ-RCRA-2008-0329-1343
Ross Thomas, Owner, Cold Spring Automotive Services, LLC
Joe Malizia, Bel Air Fast Lube, LLC
EPA-HQ-RCRA-2008-0329-1344
EPA-HQ-RCRA-2008-0329-1345
Nancy Thomas-Finn, Greenstate Services
EPA-HQ-RCRA-2008-0329-1346
Margo Reid Brown, Director, California Department of Resources Recycling and Recovery
(CalRecycle)
Spencer Whitney, General Manager, Capital City Auto Recyclers
Thomas D. Stapleton, Service Director, Carter Motors, Inc. dba Carter Volkswagen, Carter
Subaru, Carter Subaru Ballard
EPA-HQ-RCRA-2008-0329-1347
EPA-HQ-RCRA-2008-0329-1348
EPA-HQ-RCRA-2008-0329-1349
Greg Kester, Biosolids Program Manager, California Association of Sanitation Agencies
(CASA)
EPA-HQ-RCRA-2008-0329-1350
Barry J. Johnson, President and Owner, Cass County Heating, Inc.
EPA-HQ-RCRA-2008-0329-1351
David Z. Skolasinski, District Manager, Environmental Regulatory Planning/ Analysis,
Cliffs Natural Resources Inc. (Cliffs)
Kevin F. Cochran, Modal Marketing, Inc.
R. Wade Mosby, Senior Vice President, Collins Companies
EPA-HQ-RCRA-2008-0329-1352
EPA-HQ-RCRA-2008-0329-1353
EPA-HQ-RCRA-2008-0329-1354
Charles G. Johnson, Unit Leader, Solid Waste and Material Management Unit, Hazardous
Materials and Waste Management Program, Colorado Department of Public Health and
Environment
EPA-HQ-RCRA-2008-0329-1355
David Wagman, Vice President, Bridgewater Recycling Inc.
EPA-HQ-RCRA-2008-0329-1356
Ann Timberlake, Executive Director, Conservation Voter of South Carolina (CVSC)
Dillard Cosner, Cosner Brothers Used Auto Parts Inc.
Thomas A Julia, President Composite Panel Association
Gary W. Darling, General Manager, Delta Diablo Sanitation District
EPA-HQ-RCRA-2008-0329-1357
EPA-HQ-RCRA-2008-0329-1358
EPA-HQ-RCRA-2008-0329-1359
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1360
Guy R. Martin, Director, Environment Sustainability Group, Domtar Corporation
EPA-HQ-RCRA-2008-0329-1361
Doris Lambert, Bill's Quick Lube
EPA-HQ-RCRA-2008-0329-1362
Dennis A. Werblow, Director Corporate Environmental Affairs, Decorative Panels
International, Inc. (DPI)
EPA-HQ-RCRA-2008-0329-1363
Stephen R. Gossett, Senior Environmental Associate, Eastman Chemical Company
(Eastman)
Andrew S. Freeman, President, Ecological Solutions
EPA-HQ-RCRA-2008-0329-1364
EPA-HQ-RCRA-2008-0329-1365
Paul Glauser, Vice President Sustainabilitv and Environment Staker Parson Companies
EPA-HQ-RCRA-2008-0329-1366
Tom Hamsberger, General Manager, Exeter Energv Limited Partnership
EPA-HQ-RCRA-2008-0329-1367
Robert and Cheryl Millham, Owners, Express Care of Grove City
EPA-HQ-RCRA-2008-0329-1368
Jeff Jones, President, Express Lubes of Southeast Georgia, Inc.
H. Smith
EPA-HQ-RCRA-2008-0329-1369
EPA-HQ-RCRA-2008-0329-1370
Michael E. Wilson, Chief Executive Officer, Automotive Recyclers Association (ARA)
EPA-HQ-RCRA-2008-0329-1371
Tom Sholders, Manager of Operations, Gloucester County Utilities Authority (GCUA)
Kwik Kar Owner's Association
EPA-HQ-RCRA-2008-0329-1372
EPA-HQ-RCRA-2008-0329-1373
Thomas W. Sigmund, Executive Director, Green Bay Metropolitan Sewerage District
(GBMSD)
EPA-HQ-RCRA-2008-0329-1374
Martha E. Groome, NPDES Compliance Officer/Laboratory and Industrial Waste Section
Supervisor, City of Greensboro Water Resources Department
John Williams, President, Holston Environmental Services, Inc. (Holston)
EPA-HQ-RCRA-2008-0329-1375
EPA-HQ-RCRA-2008-0329-1376
Scott Klingemann, Vice President, Hotsv Equipment Co.
Robert J. Perkins, President Intermountain Equipment Sales Company
Charles R. Carv, Principal, Biomass Combustion Systems, Inc.
John Clariday, President, Chaparral Auto Parts, Inc.
EPA-HQ-RCRA-2008-0329-1377
EPA-HQ-RCRA-2008-0329-1378
EPA-HQ-RCRA-2008-0329-1379
EPA-HQ-RCRA-2008-0329-1380
John Piotrowski, Corporate Environmental Operations Manager, Packing Corporation of
America (PCA)
William L. Bider, Director, Bureau of Waste Management, Kansas Department of Health
and Environment
EPA-HQ-RCRA-2008-0329-1381
EPA-HQ-RCRA-2008-0329-1382
C. Richard Titus, Executive Vice President, Kitchen Cabinet Manufacturers Association
(KCMA) _
Frank P. Stanch, Operations Manager, Kleen Machines, Div.
Douglas Kochel, President Kochel Equipment Company Inc.
EPA-HQ-RCRA-2008-0329-1383
EPA-HQ-RCRA-2008-0329-1384
EPA-HQ-RCRA-2008-0329-1385
Lance McKinzie, General Partner, EXE Operations LLC
Keith Brasuell, LCAR of Ruston, Inc., Chevron Fast Lube
Eileen A. Sottile, Vice President, Government Affairs, LKQ Corporation
Barbara Ann Cepko, Manager, Lower Perkiomen Valley Regional Sewer Authority
(LPVRSA)
EPA-HQ-RCRA-2008-0329-1386
EPA-HQ-RCRA-2008-0329-1387
EPA-HQ-RCRA-2008-0329-1388
EPA-HQ-RCRA-2008-0329-1389
Michael R. Wardell, Executive Director, Board of Trustees of the Mid-Atlantic Biosolids
Association (MABA)
EPA-HQ-RCRA-2008-0329-1390
Comment John Williams, President, Maine Pulp & Paper Association (MPPA)
EPA-HQ-RCRA-2008-0329-1391
Mark Gandv, Executive Sales Manager, MRO Sales Inc.
EPA-HQ-RCRA-2008-0329-1392
M. H., Southwest Atlanta E.O.C., Inc.
Marv S. Booth, Massachusetts Environmental Energv Alliance
EPA-HQ-RCRA-2008-0329-1393
EPA-HQ-RCRA-2008-0329-1394
Kevin Ford, Commercial Development Manager, Merichem Company (Merichem)
Steven R. Sliver, Chief, Solid Waste and Land Application Section, Environmental Resource
Management Division, Michigan Department ofNatural Resources and Environment
(DNRE)
EPA-HQ-RCRA-2008-0329-1395
EPA-HQ-RCRA-2008-0329-1396
Anonymous public comment
EPA-HQ-RCRA-2008-0329-1397
Mike Morris, President, Morris Distributing, Inc.
EPA-HQ-RCRA-2008-0329-1398
Jeffery S. Hannapel, The Policy Group on behalf of National Association for Surface
Finishing (NASF)
EPA-HQ-RCRA-2008-0329-1399
Gregory E. Conrad, Executive Director, Interstate Mining Compact Commission and
Michael P. Garner, President, National Association of Abandoned Mine Land Programs
Julius Ciaccia, Executive Director, Northeast Ohio Regional Sewer District (NEORSD)
EPA-HQ-RCRA-2008-0329-1400
EPA-HQ-RCRA-2008-0329-1401
David Bonistall, Vice President Environmental, Health and Safety, NewPage Corporation
(NewPage)
EPA-HQ-RCRA-2008-0329-1402
Fibrek, Inc., (FIBREK)
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1403
Nick M. Vuko, General Manager, Quick Nick's Snappy Lube
EPA-HQ-RCRA-2008-0329-1404
Shannon Nordstrom, Vice President/General Manager, Nordstrom's Automotive, Inc.
EPA-HQ-RCRA-2008-0329-1405
William F. Edgerton, President, North Central Hydro Wash, Inc.
EPA-HQ-RCRA-2008-0329-1406
Howard Hurwitz, Executive Director, Northwest Bergen County Utilities Authority
(NBCUA)
EPA-HQ-RCRA-2008-0329-1407
Bruce J. Parker, President and CEO, National Solid Wastes Management Association
(NSWMA)
EPA-HQ-RCRA-2008-0329-1408
Nicholas A. Smith, Oil Exchange
EPA-HQ-RCRA-2008-0329-1409
Edward M. Torres, Director of Technical Services, Orange County Sanitation District
(OCSD)
EPA-HQ-RCRA-2008-0329-1410
James Allen, Manager, Water Quality Control Plant and Phil Bobel, Manager,
Environmental Compliance, Citv of Palo Alto
EPA-HQ-RCRA-2008-0329-1411
David Haldeman, Waste Management Division Administrator and Shelley Schneider, Air
Qualitv Division Administrator, Nebraska Department of Environmental Quality (NDEQ)
EPA-HQ-RCRA-2008-0329-1412
Scott Hastings, Vice President, Peninsula Pressure Systems
EPA-HQ-RCRA-2008-0329-1413
Michael Pinkerton, Pinkerton Mobile Oil LLC.
EPA-HQ-RCRA-2008-0329-1414
Richard Lulav, Lulav Timber Co. Inc.
EPA-HQ-RCRA-2008-0329-1415
James Brooks, Director, Bureau of Air Quality and Paula M. Clark, Director, Division of
Solid Waste Management, Bureau of Remediation and Waste Management, Maine
Department of Environmental Protection (DEP)
EPA-HQ-RCRA-2008-0329-1416
Wendy Roy on behalf of Arthur N. Marin, Executive Director, Northeast States for
Coordinated Air Use Management (NESCAUM)
EPA-HQ-RCRA-2008-0329-1417
A. Preston Howard, Jr., President, Manufacturers and Chemical Industry Council ofNorth
Carolina (MCIC)
EPA-HQ-RCRA-2008-0329-1418
Jeffrey L. Leiter, Independent Lubricant Manufacturers Association
EPA-HQ-RCRA-2008-0329-1419
D. Kornegay
EPA-HQ-RCRA-2008-0329-1420
Gregg M. Peters, Oil Can Henry's 13 - STAYTON dba OCH Stayton, LLC
EPA-HQ-RCRA-2008-0329-1421
Scott Morrison, City Garage
C. R. Holland
EPA-HQ-RCRA-2008-0329-1422
EPA-HQ-RCRA-2008-0329-1423
D. Kornegay
T. Lux
EPA-HQ-RCRA-2008-0329-1424
EPA-HQ-RCRA-2008-0329-1425
D. Charles
EPA-HQ-RCRA-2008-0329-1426
Sue Schauls, Sue Schauls Consulting
EPA-HQ-RCRA-2008-0329-1427
C. Kenyon
EPA-HQ-RCRA-2008-0329-1428
R. Fugle
Vernice Miller-Travis, Consultant, Earthjustice
EPA-HQ-RCRA-2008-0329-1429
EPA-HQ-RCRA-2008-0329-1430
D. Faire loth
EPA-HQ-RCRA-2008-0329-1431
Tyrone P. Wilson, Director, Regulatory Affairs, Energy & Environment, Portland Cement
Association (PCA)
EPA-HQ-RCRA-2008-0329-1432
Caroline Choi, Executive Director, Environmental Services and Strategy, Progress Energy
EPA-HQ-RCRA-2008-0329-1433
Susan B. Maples, Director of Operations, RBM Company
EPA-HQ-RCRA-2008-0329-1434
Bill Turner, Turner Hydraulics, Inc.
EPA-HQ-RCRA-2008-0329-1435
Ron Smith, Environmental Compliance Manager, Universal Lubricants, LLC
Lin Longshore, Vice President of Environmental Compliance, Oil And Recycling
Operations, Safety-Kleen Systems, Inc. (Safety-Kleen)
EPA-HQ-RCRA-2008-0329-1436
EPA-HQ-RCRA-2008-0329-1437
Susan M. Walthall, Acting Chief Counsel for Advocacy and Keith W. Holman, Assistant
Chief Counsel for Environmental Policy, Office of Advocacy of the U.S. Small Business
Administration (Advocacy)
Renee Lesjak Bashel, Chair, National Steering Committee
EPA-HQ-RCRA-2008-0329-1438
EPA-HQ-RCRA-2008-0329-1439
John Pastore, Executive Director, Southern California Alliance of Publicly Owned
Treatment Works (SCAP)
EPA-HQ-RCRA-2008-0329-1440
Colin A. Kellv, Government Relations Manager, Schnitzer Northeast
EPA-HQ-RCRA-2008-0329-1441
Aaron Scott Cromer, Owner, Waste Oil Furnace Repair & Service, Inc.
EPA-HQ-RCRA-2008-0329-1442
Cathy Carnessali, Vice President of Business Services, Oil Distributing Company
Gregory J. Merrill, Director, Montgomery County Environmental Services
EPA-HQ-RCRA-2008-0329-1443
EPA-HQ-RCRA-2008-0329-1444
Glen D. Petrauski, Executive Director, Somerset Raritan Valley Sewerage Authority
Cris Chirumbolo, Southwest Petroleum Waste Management
EPA-HQ-RCRA-2008-0329-1445
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1446
John Kantorek, Executive Director, Stony Brook Regional Sewerage Authority (SBRSA)
EPA-HQ-RCRA-2008-0329-1447
N. P. Burrows, Senior Environmental Manager, Syngenta Seeds, Inc. (Syngenta)
EPA-HQ-RCRA-2008-0329-1448
Anonymous public comment
EPA-HQ-RCRA-2008-0329-1449
James S. Willis, III., Corporate Environmental Manager, Titan America LLC
EPA-HQ-RCRA-2008-0329-1450
Union Pacific Railroad Company (UPRR)
EPA-HQ-RCRA-2008-0329-1451
David W. Hacker, Attorney-Environmental, Law Department, United States Steel
Corporation (USS)
EPA-HQ-RCRA-2008-0329-1452
Melissa A. VanTassel, Firestone Complete Auto Care/Expert Tire, Kansas City Districts
EPA-HQ-RCRA-2008-0329-1453
Tim Williams, Senior Managing Director, Public Policy, Water Environment Federation
(WEF)
EPA-HQ-RCRA-2008-0329-1454
Michael T. McEvoy, Executive Director, Wastewater Services, Western Virginia Water
Authority
EPA-HQ-RCRA-2008-0329-1455
Richard A. Rosvold, Air Quality Manager, Xcel Energy Services, Inc., Northern States
Power Company (NSPC)
Jerrv Call, Executive Vice President, American Foundry Societv (AFS)
EPA-HQ-RCRA-2008-0329-1456
EPA-HQ-RCRA-2008-0329-1457
Ron Lugowski, President, DSi Recycling Systems, Inc.
Brad Cooley, Director, Environmental Engineering, GDF SUEZ Energy Generation NA, Inc.
(GSEGNA) _
Walter B. Crickmer, Manager, Gobco, LLC
EPA-HQ-RCRA-2008-0329-1458
EPA-HQ-RCRA-2008-0329-1459
EPA-HQ-RCRA-2008-0329-1460
Edwin E. Dassatti, Director, Division of Solid & Hazardous Material, New York State
Department of Environmental Conservation
EPA-HQ-RCRA-2008-0329-1461
Gerald R. DeLuca, Executive Director, Automotive Recyclers Association ofNew York
(ARANY)
EPA-HQ-RCRA-2008-0329-1462
Buffy C. Santel on behalf of John Lodderhose, Assistant Director of Engineering,
Environmental Compliance, Metropolitan St. Louis Sewer District
EPA-HQ-RCRA-2008-0329-1463
Rvan O'Gara, Government Affairs, SKB Recycling LLC
EPA-HQ-RCRA-2008-0329-1464
AG Diesel Repair
Will Yates, Safety and Environmental Supervisor, Lake Union Dry dock Company
Beth A. Richards, Branch Manager, Future Environmental, Inc.
EPA-HQ-RCRA-2008-0329-1465
EPA-HQ-RCRA-2008-0329-1466
EPA-HQ-RCRA-2008-0329-1467
Jeff Carrier, Sustainabilitv and IAQ Program Manager, The Carpet and Rug Institute
EPA-HQ-RCRA-2008-0329-1468
Scott D. Parker on behalf of Christopher Harris, General Counsel, NORA, An Association of
Responsible Recyclers (Attachment to EPA-HQ-RCRA-2008-0329-1273)
EPA-HQ-RCRA-2008-0329-1469
Todd A. Tolbert, Environmental Analyst II, Associated Electric Cooperative, Inc. (AECI)
Terrv R. Beachler, Beachler's Servicenter
EPA-HQ-RCRA-2008-0329-1470
EPA-HQ-RCRA-2008-0329-1471
L. Thomas
EPA-HQ-RCRA-2008-0329-1472
S. Simmons
EPA-HQ-RCRA-2008-0329-1473
M. Mouna
EPA-HQ-RCRA-2008-0329-1474
M. Lackey
D. Turner
EPA-HQ-RCRA-2008-0329-1475
EPA-HQ-RCRA-2008-0329-1476
J. Steiner
T. Thompson
EPA-HQ-RCRA-2008-0329-1477
EPA-HQ-RCRA-2008-0329-1478
C. Rendzio
EPA-HQ-RCRA-2008-0329-1479
S. Llorca
D. Pedersen
EPA-HQ-RCRA-2008-0329-1480
EPA-HQ-RCRA-2008-0329-1481
N. York
A. Trenholme
EPA-HQ-RCRA-2008-0329-1482
EPA-HQ-RCRA-2008-0329-1483
M. Kissinger
EPA-HQ-RCRA-2008-0329-1484
T. and E. McCloskey
EPA-HQ-RCRA-2008-0329-1485
M. Bergman
EPA-HQ-RCRA-2008-0329-1486
N. Rapp
EPA-HQ-RCRA-2008-0329-1487
J. Larson
G. Watanabe
EPA-HQ-RCRA-2008-0329-1488
EPA-HQ-RCRA-2008-0329-1489
C. Siewert
M. Pfund
EPA-HQ-RCRA-2008-0329-1490
EPA-HQ-RCRA-2008-0329-1491
W. Larry McDorman, President, Renewable Steam Alternatives, LLC
EPA-HQ-RCRA-2008-0329-1492
P. Richards
S. K. Snow
EPA-HQ-RCRA-2008-0329-1493
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1494
H. Durst
EPA-HQ-RCRA-2008-0329-1495
W. Silver
EPA-HQ-RCRA-2008-0329-1496
P. Mann
EPA-HQ-RCRA-2008-0329-1497
L. Bartell
S. Yaffe
EPA-HQ-RCRA-2008-0329-1498
EPA-HQ-RCRA-2008-0329-1499
J. Perez
J. Craig
EPA-HQ-RCRA-2008-0329-1500
EPA-HQ-RCRA-2008-0329-1501
C. Franklin
EPA-HQ-RCRA-2008-0329-1502
L. Bodiford
G. R. Stewart
EPA-HQ-RCRA-2008-0329-1503
EPA-HQ-RCRA-2008-0329-1504
L. Capizzi
EPA-HQ-RCRA-2008-0329-1505
M. Watkins
J. Fitzgerald
EPA-HQ-RCRA-2008-0329-1506
EPA-HQ-RCRA-2008-0329-1507
V. T. Morehead
EPA-HQ-RCRA-2008-0329-1508
K. Webers
EPA-HQ-RCRA-2008-0329-1509
J. Rampton
EPA-HQ-RCRA-2008-0329-1510
K. Morris
M. Gleason
EPA-HQ-RCRA-2008-0329-1511
EPA-HQ-RCRA-2008-0329-1512
J. Arnold
EPA-HQ-RCRA-2008-0329-1513
B. O'Brien
T. Aldridge
EPA-HQ-RCRA-2008-0329-1514
EPA-HQ-RCRA-2008-0329-1515
J. Engel
EPA-HQ-RCRA-2008-0329-1516
B. Weimann
EPA-HQ-RCRA-2008-0329-1517
P. Gampper
J. Sockloff
S. Hartsfield
K. Moore
G. Blomberg
D. Forshtay
M. Goodwin
G. Gorden
P. Kaiser
EPA-HQ-RCRA-2008-0329-1518
EPA-HQ-RCRA-2008-0329-1519
EPA-HQ-RCRA-2008-0329-1520
EPA-HQ-RCRA-2008-0329-1521
EPA-HQ-RCRA-2008-0329-1522
EPA-HQ-RCRA-2008-0329-1523
EPA-HQ-RCRA-2008-0329-1524
EPA-HQ-RCRA-2008-0329-1525
EPA-HQ-RCRA-2008-0329-1526
D. Eagle
EPA-HQ-RCRA-2008-0329-1527
M. Flanagan
P. Blaha
EPA-HQ-RCRA-2008-0329-1528
EPA-HQ-RCRA-2008-0329-1529
T. Mason
D. Vines-Sharp
EPA-HQ-RCRA-2008-0329-1530
EPA-HQ-RCRA-2008-0329-1531
M. Hodie
EPA-HQ-RCRA-2008-0329-1532
B. Bean
D. Brandt
EPA-HQ-RCRA-2008-0329-1533
EPA-HQ-RCRA-2008-0329-1534
B. Hutchingson
J. Sorrells
EPA-HQ-RCRA-2008-0329-1535
EPA-HQ-RCRA-2008-0329-1536
A. Moore
EPA-HQ-RCRA-2008-0329-1537
K. Knudsen
V. Phillips
EPA-HQ-RCRA-2008-0329-1538
EPA-HQ-RCRA-2008-0329-1539
M. Salvestrin
C. Andre
EPA-HQ-RCRA-2008-0329-1540
EPA-HQ-RCRA-2008-0329-1541
R. Ross
EPA-HQ-RCRA-2008-0329-1542
G. Countryman-Mills
J. Viriolic
EPA-HQ-RCRA-2008-0329-1543
EPA-HQ-RCRA-2008-0329-1544
J. Taylor
B. Spring
EPA-HQ-RCRA-2008-0329-1545
EPA-HQ-RCRA-2008-0329-1546
T. Hazelleaf
EPA-HQ-RCRA-2008-0329-1547
J. Thacker
C. Lavelle-pahl
EPA-HQ-RCRA-2008-0329-1548
EPA-HQ-RCRA-2008-0329-1549
E. Wong-Drenning
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1550
W. Neill
EPA-HQ-RCRA-2008-0329-1551
J. Kennedy
EPA-HQ-RCRA-2008-0329-1552
D. Varley
EPA-HQ-RCRA-2008-0329-1553
C. Holland
L. Burlingame
EPA-HQ-RCRA-2008-0329-1554
EPA-HQ-RCRA-2008-0329-1555
C. Lynt
V. Terry
EPA-HQ-RCRA-2008-0329-1556
EPA-HQ-RCRA-2008-0329-1557
C. Mead
EPA-HQ-RCRA-2008-0329-1558
M. Buncik
M. Strawn
EPA-HQ-RCRA-2008-0329-1559
EPA-HQ-RCRA-2008-0329-1560
M. Andren
EPA-HQ-RCRA-2008-0329-1561
S. Flick _
G. Bover
EPA-HQ-RCRA-2008-0329-1562
EPA-HQ-RCRA-2008-0329-1563
E. Trauner
EPA-HQ-RCRA-2008-0329-1564
John Lindsay, Power Lube-Blackfoot Idaho
EPA-HQ-RCRA-2008-0329-1565
Karen Bassett on behalf of Teresa Marks, Director, Arkansas Department of Environmental
Quality (ADEQ)
EPA-HQ-RCRA-2008-0329-1566
Carleen Tate-Little on behalf of Holly R. Hart, Assistant to the International President,
Legislative Director, United Steelworkers (USW)
Steven A. Brink, California Forestry Association (CFA)
EPA-HQ-RCRA-2008-0329-1567
EPA-HQ-RCRA-2008-0329-1568
Joseph J. Knapik, Vice President, International Paper Products Corporation (IPPC)
EPA-HQ-RCRA-2008-0329-1569
Kevin R. Kutcel, President, KRK Consulting, LLC
Margaret Sembos, Kestrel Horizons, LLC on behalf of Curtis Schopp, National Salvage &
Service Corporation (NSSC)
Rav Vintika, Beaver Oil Companv, Inc.
EPA-HQ-RCRA-2008-0329-1570
EPA-HQ-RCRA-2008-0329-1571
EPA-HQ-RCRA-2008-0329-1572
Michel R. Benoit Executive Director, Cement Kiln Recycling Coalition (CKRC)
EPA-HQ-RCRA-2008-0329-1573
Donald E. Lewis, President, Portage Power Wash, Inc
Rob Wienert General Manager, Road & Driveway Co.
EPA-HQ-RCRA-2008-0329-1574
EPA-HQ-RCRA-2008-0329-1575
Dave Comen, Solid Waste Subcommittee Chair, South Carolina Chamber of Commerce
Environmental Technical Committee (ETC)
EPA-HQ-RCRA-2008-0329-1576
Leanne Tippett Mosby, Acting Director, State of Missouri Department of Natural Resources
(Department)
EPA-HQ-RCRA-2008-0329-1577
Paul J. Allen, Senior Vice President, Corporate Affairs Division, Constellation Energv
EPA-HQ-RCRA-2008-0329-1578
Richard D. Hyatt, Vice President of Mill Operations, Kapstone Charleston Kraft LLC
(Kapstone)
EPA-HQ-RCRA-2008-0329-1579
Jose L. Kofman, Vice President Technical Services, Clarion Boards Inc. & Clarion
Laminates LLC
EPA-HQ-RCRA-2008-0329-1580
Peter J. Frev, President/CEO, Take 5 Oil Change
Jim Jakubiak, Environmental Administrator, Schmtzer Stell Industries, Inc
Chris Korleski, Director, Ohio Environmental Protection Agency (Ohio EPA)
Jeffrey Kendall, CEO, Liberty Tire Recycling, LLC
Robert V. Trapam, Environmental Engineer, Arizona Department of Transportation
Curtis Hall, General Manager, Asphalt Operations, Independence Construction Materials
EPA-HQ-RCRA-2008-0329-1581
EPA-HQ-RCRA-2008-0329-1582
EPA-HQ-RCRA-2008-0329-1583
EPA-HQ-RCRA-2008-0329-1584
EPA-HQ-RCRA-2008-0329-1585
EPA-HQ-RCRA-2008-0329-1586
Mark Kable, Chief Executive Officer, Setzer Forest Products Inc.
EPA-HQ-RCRA-2008-0329-1587
George S. Vorpahl, Vice President of Environmental, Health & Safety, Temple-Inland
EPA-HQ-RCRA-2008-0329-1588
Colby W. Benton, Environmental, Health, Safety and Technical Manager, CraftMaster
Manufacturing, Inc. (CMI)
Mary Howell, Executive Director, Virginia Automotive Recyclers Association (VARA)
EPA-HQ-RCRA-2008-0329-1589
EPA-HQ-RCRA-2008-0329-1590
Don Weber, Director of Operations, OCH International, Inc.
Jav Camarena, President, California Auto Dismantlers & Recvclers Alliance, Inc. (CADRA)
EPA-HQ-RCRA-2008-0329-1591
EPA-HQ-RCRA-2008-0329-1592
Garv Smith, Executive Director, Automotive Recvclers of Washington
EPA-HQ-RCRA-2008-0329-1593
Larry B. Twitchell, Executive Director, Auto & Truck Recyclers Association of New
Hampshire
EPA-HQ-RCRA-2008-0329-1594
Nick Chamberlain, President, Power Clean Systems, Inc.
EPA-HQ-RCRA-2008-0329-1595
Louis Kollias, Director, Monitoring and Research, Metropolitan Water Reclamation District
of Greater Chicago
EPA-HQ-RCRA-2008-0329-1596
Katherine Frey, Director of Environmental Affairs, SierraPine
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1597
John D. Recce, Executive Director, Little Blue Valley Sewer District
EPA-HQ-RCRA-2008-0329-1598
Don Olson, Solid Waste Superintendent, Department of Public Works, Solid Waste
Division, Cowlitz County, Washington
EPA-HQ-RCRA-2008-0329-1599
Allyn Ford, President, Roseburg Forest Products
Jake Rea, Vice President, Michigan Truck Parts
EPA-HQ-RCRA-2008-0329-1600
EPA-HQ-RCRA-2008-0329-1601
Steven Ransom, Nuera Corporation
EPA-HQ-RCRA-2008-0329-1602
Constellation Energy
EPA-HQ-RCRA-2008-0329-1603
Paul J. Allen, Senior Vice President, Corporate Affairs Division, Chief Environmental
Officer, Constellation Energy
EPA-HQ-RCRA-2008-0329-16O4
Gene Barr, Vice President, Government and Public Affairs, Pennsylvania Chamber of
Business and Industry
Mark Trujillo, General Manager, PSI Svstems, Inc.
EPA-HQ-RCRA-2008-0329-1605
EPA-HQ-RCRA-2008-0329-1606
Joseph J. Cattaneo, President, Glass Packing Institute (GPI)
Daniel A. Cowart President and CEO, AARON Oil Companv, Inc.
EPA-HQ-RCRA-2008-0329-1607
EPA-HQ-RCRA-2008-0329-1608
John B. Donaldson, President, BlackRock Coal, LLC
Wayne Chagnot, President, Connecticut Auto Recyclers Association
EPA-HQ-RCRA-2008-0329-1609
EPA-HQ-RCRA-2008-0329-1610
Jon Fieldman, Vice President, Product Supply-Specialty Products, Kingsford Manufacturing
Company
EPA-HQ-RCRA-2008-0329-1611
Steven Fuler on behalf ofLeanne Tippett Mosby, Acting Director, Missouri Department of
Natural Resources
EPA-HQ-RCRA-2008-0329-1612
Larrv R. Thomas, Director, Ypsilanti Community Utilities Authority (YCUA)
EPA-HQ-RCRA-2008-0329-1613
Daniel C. Thompson, Division Manager, Wastewater Management Operations, City of
Tacoma, Washington
Robert L. Kohnen, Vice President, Symbiotic Energy, LLC
EPA-HQ-RCRA-2008-0329-1614
EPA-HQ-RCRA-2008-0329-1615
Larry B. Brown, Vice President, Jerry Brown Ltd.
EPA-HQ-RCRA-2008-0329-1616
Lynne Medlin, Secretary, Custom Auto Service
Dustin Wheatley, Owner, Landot Used LLC
EPA-HQ-RCRA-2008-0329-1617
EPA-HQ-RCRA-2008-0329-1618
Walter Meinhardt, Jr., Owner, Brandy wine Automotive Centers
EPA-HQ-RCRA-2008-0329-1619
Jeffrey S. Kantor, President, Carworld Used Auto Parts
EPA-HQ-RCRA-2008-0329-1620
Paul E. Davis, President, A-Plus Parts & Salvage, Inc.
EPA-HQ-RCRA-2008-0329-1621
Gary Jachter, G H Farms
EPA-HQ-RCRA-2008-0329-1622
Robert V. Trapani, Environmental Engineer, Arizona Department of Transportation
EPA-HQ-RCRA-2008-0329-1623
Gary L. King, Director of Safety, Heartland Express, Inc.
EPA-HQ-RCRA-2008-0329-1624
Phillip D. Coblentz, President, Sidehill Trucking, Inc.
EPA-HQ-RCRA-2008-0329-1625
Junior Sinn, Junior Sinn Auto Parts, LLC.
EPA-HQ-RCRA-2008-0329-1626
Shelby Bradburn, Risk Manager, Van Tuyl Group, Inc.
EPA-HQ-RCRA-2008-0329-1627
Sidlev M. West, Sid West
EPA-HQ-RCRA-2008-0329-1628
JC Oil Company
EPA-HQ-RCRA-2008-0329-1629
Ed Pitts, Service Manager, Kenworth Northwest, Inc.
EPA-HQ-RCRA-2008-0329-1630
Tim Hanson, Service Manager, Kenworth Alaska, Inc.
EPA-HQ-RCRA-2008-0329-1631
Potomac Falls
EPA-HQ-RCRA-2008-0329-1632
Danielle R. Wilcox, President, Midway Auto Parts, Inc.
EPA-HQ-RCRA-2008-0329-1633
Bill Ancona, Owner, Bill's Kinik Kar Inc.
EPA-HQ-RCRA-2008-0329-1634
Mitzi Waterbury, Owner, Sandhill Auto Salvage
EPA-HQ-RCRA-2008-0329-1635
Henry W. Fenimore, Vice President, B & F Towing Co.
EPA-HQ-RCRA-2008-0329-1636
Julian C. Shoemyer, JC Auto & Truck Parts
EPA-HQ-RCRA-2008-0329-1637
Brad Rouse, Vice President, Warford Auto Wreckers
EPA-HQ-RCRA-2008-0329-1638
Peggy Nicholls, Nick's Quick Oil & Lube
EPA-HQ-RCRA-2008-0329-1639
Dave Leding, Plant Manager, Flakeboard
EPA-HQ-RCRA-2008-0329-1640
Ralph C. Manning, Plant Manager, Flakeboard
EPA-HQ-RCRA-2008-0329-1641
John Piotrowski, Corporate Environmental Operations Manager, Packing Corporation of
America (PCA)
Billv Roberts, President, Roberts Salvage, Inc.
Lewis F. Gossett, President & CEO, South Carolina Manufacturers Alliance (SCMA)
EPA-HQ-RCRA-2008-0329-1642
EPA-HQ-RCRA-2008-0329-1643
EPA-HQ-RCRA-2008-0329-1644
Jamin Woodv, Branch Manager, Motor Trucks, Inc.
EPA-HQ-RCRA-2008-0329-1645
Sal Palacino, President, Middle County Auto Wreckers, Inc.
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PART 2: Commenters
Response to Comments Document -NHSM Rule
Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)
EPA-HQ-RCRA-2008-0329-1646
Paul F. DAdamo, President, Bill's Auto Parts
EPA-HQ-RCRA-2008-0329-1647
James M. Rushforth, President, Company Multi Fuel Heating Inc.
EPA-HQ-RCRA-2008-0329-1648
Mark G. Bisett, Manager, Environmental Compliance, Williams Gas Pipeline
EPA-HQ-RCRA-2008-0329-1649
Ric McCoy, Four Seasons Service Company
Daniel A. Radonski, Environmental and Project Manager, PAPE Group
EPA-HQ-RCRA-2008-0329-1650
EPA-HQ-RCRA-2008-0329-1651
Richard T. Weber, Director, Government and Environmental Affairs, Flakeboard
Brian Burns, President, Progressive Iron & Metal, Inc.
Ann Tittle, CFO, Tittle's Auto Wrecking & Recycling, LLC
EPA-HQ-RCRA-2008-0329-1652
EPA-HQ-RCRA-2008-0329-1653
EPA-HQ-RCRA-2008-0329-1654
Mostafa Azatullah, President Nationwide Used Auto Parts, Inc.
Tom Koolenga, President, Premier Auto & Truck Parts, Inc.
EPA-HQ-RCRA-2008-0329-1655
EPA-HQ-RCRA-2008-0329-1656
Cevat Karasen, General Manager, Guven Sales, Inc.
EPA-HQ-RCRA-2008-0329-1657
Elena Day, Steering Committee Chair, People's Alliance for Clean Energy (PACE)
Thomas S. Crothers, Director, Department of Public Utilities, Citv of Toledo
EPA-HQ-RCRA-2008-0329-1658
EPA-HQ-RCRA-2008-0329-1659
Mass comment campaign sponsored by United Steelworkers (USW) (440 signatures)
EPA-HQ-RCRA-2008-0329-1660
Mass Comment Campaign sponsoring organization unknown (85)
EPA-HQ-RCRA-2008-0329-1661
Robert Kellogg, President, Warren Tire Service Center
EPA-HQ-RCRA-2008-0329-1662
Wayne Smith, Area Manager, Health, Safety & Environmental Manager, Westlake Chemical
Corporation
EPA-HQ-RCRA-2008-0329-1663
James N. Hogg, President and CEO, Uniboard USA LLC
EPA-HQ-RCRA-2008-0329-1664
William L. Bider, Director, Bureau of Waste Management, Kansas Department of Health
and Environment
EPA-HQ-RCRA-2008-0329-1665
Holly R. Hart, Assistant to the International President, Legislative Director, United
Steelworkers (USW)
EPA-HQ-RCRA-2008-0329-1666
Ray Thompson, Owner and President, Oregon Commercial Heating, Inc.
EPA-HQ-RCRA-2008-0329-1667
V. Schulman
EPA-HQ-RCRA-2008-0329-1668
Frank Fultz, President, Fultz Enterprises, Inc.
EPA-HQ-RCRA-2008-0329-1669
Steve Pearlman, Director of Environmental Services, Metro Wastwater Reclamation District
EPA-HQ-RCRA-2008-0329-1670
Dick Stangel, Stangel Industries LLC
EPA-HQ-RCRA-2008-0329-1671
Gary Osadehuk, Interstate Energy, Inc.
EPA-HQ-RCRA-2008-0329-1672
Eveleen Muehlethaler, Vice President, Environmental Affairs, Port Townsend Paper
Corporation (PTPC)
EPA-HQ-RCRA-2008-0329-1673
Chris Qrsolini, Environmental Administrator, Pick N Pull Auto Dismantlers-A Schnitzer
Company
Mass comment campaignsponsored by United Steelworkers (97)
EPA-HQ-RCRA-2008-0329-1674
EPA-HQ-RCRA-2008-0329-1675
Tire World, Inc.
EPA-HQ-RCRA-2008-0329-1676
Thomas S. Crothers, Director, Public Utilities for the City of Toledo
EPA-HQ-RCRA-2008-0329-1677
William L. Bider, Director, Bureau of Waste Management, Kansas Department of Health
and Environment
Dennis K. (surname illegible). President Northwest Oilers Inc.
EPA-HQ-RCRA-2008-0329-1678
EPA-HQ-RCRA-2008-0329-1679
Edward Bortz, Mill Manager, SP Newsprint Co., LLC
Steven Pearlman, Director of Environmental Services, Metro Wastewater Reclamation
District
EPA-HQ-RCRA-2008-0329-1680
EPA-HQ-RCRA-2008-0329-1681
W. Larry McDorman, President, Renewable Steam Alternatives, LLC
EPA-HQ-RCRA-2008-0329-1682
Holly R. Hart, Assistant to the International President, Legislative Director on behalf of
United Steel, Paper & Forestry, Rubber Manufacturing, Energy, Allied Industrial and
Service Workers International Union (USW)
EPA-HQ-RCRA-2008-0329-1683
Gary Miller, President, MTD Services, Inc.
EPA-HQ-RCRA-2008-0329-1684
Andrew T. O'Hare, Vice President, Regulatory Affairs, Portland Cement Association (PCA)
EPA-HQ-RCRA-2008-0329-1685
Larry Manziek, Executive Director, International Precious Metals Institute (IPMI)
EPA-HQ-RCRA-2008-0329-1686
Susan Parker Bodine, Used Oil Management Association (UOMA)
EPA-HQ-RCRA-2008-0329-1696
Marsal Martin, Plant Engineer, Exeter Energy Limited Partnership
T. Gray
EPA-HQ-RCRA-2008-0329-1712
EPA-HQ-RCRA-2008-0329-1713
Richard J. Lyons, Executive Director, The Albany County Sewer District
Memorandum from Marc Thomas, re: Meeting with Treated Wood Council*
EPA-HQ-RCRA-2008-0329-1715
EPA-HQ-RCRA-2008-0329-1716
Letter to David Mcintosh, Associate Administrator for Congressional and Intergovernmental
Relations, USEPA, from Senator Russell D. Feingold, United States Senate*
EPA-HQ-RCRA-2008-0329-1717
Letter to Lisa P. Jackson, Administrator, USEPA, from James E. Clyburn, Majority Whip,
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Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule
Document ID
Commenter Name (includes person that submitted on behalf of an organization)

U.S. House of Representatives*
EPA-HQ-RCRA-2008-0329-1718
Letter to Lisa P. Jackson, Administrator, USEPA, from Adam M. Sherman, O'keane
Automotive Services*
EPA-HQ-RCRA-2008-0329-1719
Letter to Lisa P. Jackson, Administrator, USEPA, from Orlin Loucks, Protective
Automotive*
EPA-HQ-RCRA-2008-0329-1720
Letter to Lisa P. Jackson, Administrator, USEPA, from Larry Powell, Durham Tire & Auto
Center*
EPA-HQ-RCRA-2008-0329-1721
Letter to Lisa P. Jackson, Administrator, USEPA, from Barbara McMonagle, Oreland Auto
Service*
EPA-HQ-RCRA-2008-0329-1722
Letter to Lisa Jackson, Administrator, USEPA, from Steve Cohen, U.S. House of
Representatives*
EPA-HQ-RCRA-2008-0329-1723
Letter to Lisa P. Jackson, Administrator, USEPA, from Bill Owens, et al, U.S. House of
Representatives*
EPA-HQ-RCRA-2008-0329-1724
EPA-HQ-RCRA-2008-0329-1725
Memorandum from Kimberly Cochran, re: Meeting with the Staff of Representative James
E. Clvburn's Office*
Memorandum from Kimberly Cochran, re: Meeting with the Congressional Research
Service*
Note: All comments were considered in the development of this final rule, regardless of whether they are characterized in the
docket as "public submissions" or as "supporting & related materials," including comments submitted after the closure of the
comment periods. For example, EPA received a number of letters from members of Congress and various stakeholders outside the
comment period, which the Agency entered into the docket as "supporting and related materials" and considered as comments in
developing today's final rule. The comments in this index are "public submissions" submitted directly to the docket, except those
indicated with an asterisk (*).
Duplicate and copyrighted comments may not be included.
* These comments are listed as "supporting & related materials" in the docket.
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PART 3a: Comments on the Proposed Rule and EPA Responses
(Section V in the preamble to the final rule)
In order to maintain consistency in regard to responses addressed in the final rule, those
proposed rule comments and responses as stated in the final rule are copied verbatim below. For
the references to sections in the final rule which are not in the response to comments section
(Section V), refer to the appropriate sections in the final rule in the docket.
The rule (referenced in the comments and responses below) and the original comments
used for EPA review are in the docket for this final rule under Docket ID No. EPA-HQ-RCRA-
2008-0329. These public submissions and other documents relating to this rule are available on
the www.regulations.gov web site.
Comments on the Proposed Rule
(Section V of the final rule. Note: the numbering used in the rule is also retained in this
section.1)
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.2 This section discusses the comments that EPA received, as well as our
1	PART 4 of this document includes tables which provide a crosswalk between the comment responses discussed
here and individual comment ID numbers. Next to each comment is a code in brackets (for example, [3a-Al-l])
which links to the individual comments listed in the crosswalk tables.
2	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
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response to those comments.
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 Pa-Al-ll:
Case law prevents EPA from finding that secondary materials burned for energy recovery
are not solid wastes. The D.C. 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
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.
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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
AMCI 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 T3a-Al-21:
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
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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 T3a-Al-31:
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
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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 T3a-Al-41:
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 T3a-Al-51:
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.
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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"
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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 T3a-Al-61:
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 D.C. 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
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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 T3a-Al-71:
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 T3a-Al-81:
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
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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.
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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
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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 F3d 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
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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 T3a-Al-91:
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
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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 r3a-Al-101:
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
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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 T3a-Al-111:
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.
Commentr 3 a-A1-121:
In implementing RCRA, EPA must balance the statute's two primary goals of (1)
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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 D.C. 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 T3a-Al-131:
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.
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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 sectionl29 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
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Comment T3a-A2-11:
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 D.C. 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 D.C. 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 D.C. 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
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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.
h. Comments from Industry Groups
Comment T3a-A2-21:
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.
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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.3
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.
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 it decision on the policy, but must evaluate whether a secondary material is a solid
waste under RCRA. Specifically, the D.C. 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
3 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.
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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
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1. Traditional Fuels.4
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 VILA, 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)5, and
4	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.
5	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.
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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).
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 because they lack adequate heating value (wet biomass), or
because they may contain contaminants that are significantly higher in concentration than those
in traditional fuel products to the degree that sham recycling is indicated. The secondary
materials that were described in the ANPRM that could fall into this category include polyvinyl
chloride (PVC), halogenated plastics, chromated copper arsenate (CCA) lumber, creosote
lumber, copper-based treated lumber, lead-based treated lumber, and secondary mill residues,
such as board, trim and breakage from the manufacture of reconstituted wood/panel products.
The proposed rule continued to recognize that traditional fuels, as noted above, are not
solid wastes, but added to that group clean cellulosic biomass and on-specification used oil (75
FR 31856). Specifically, in the proposal, "clean" biomass material was defined as a non-
hazardous secondary material that has not been altered (either chemically or through some type
of production process), such that it contains contaminants at concentrations normally associated
with virgin biomass materials (the description of "clean" is being modified slightly for today's
rule, see discussion below). Clean 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), corn stover and other biomass crops
used specifically for energy production (e.g., energy cane, other fast growing grasses), bagasse
and other crop residues (e.g., peanut shells), wood collected from forest fire clearance activities,
trees and clean wood found in disaster debris, and clean biomass from land clearing operations
(75 FR 31856). Essentially, "clean" biomass was that biomass material that was simply picked
up from its environment and burned for fuel. EPA requested comment on whether other types of
cellulosic biomass should be designated as clean biomass, and thus a traditional fuel (75 FR
31856).
EPA also proposed to add on-specification used oil to the list of "traditional" fuels based
on the argument that it meets the Agency's view of fuels that have been managed as valuable
fuel products rather than being managed as waste materials. 75 FR 31864. The Agency stated
that under 40 CFR part 279, once used oil is determined to be on-spec, it is no longer regulated
under the used oil management standards. This means that once the marketer complies with the
requirements for analysis and record retention, notification, and record tracking shipment to on-
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specification burners, the oil is no longer subject to other management standards. Moreover, the
on-specification used oil contains contaminants at levels below the maximum concentration
limits established in the standards, such that they are either at the same concentration or a lower
concentration than virgin refined fuel oil.
EPA acknowledged in the proposal that changes in technology and in the energy market
over time may result in additional materials being economically viable to be used as alternative
"traditional" fuels. It also may not always be clear whether a fuel material is a traditional fuel.
We agreed with commenters to the ANPRM that this rulemaking should be flexible to account
for increasing use and changes in commodities, technologies, markets, and fuel prices. We,
therefore, requested comment on whether other fuels in use today should be classified as
traditional fuels, as well as whether to provide a petition process that would allow a facility or
person to request that EPA determine whether the fuel that they burn qualifies as a traditional
fuel.
As also discussed in Section VII, the definition of traditional fuels has been modified in
today's rule. The new definition encompasses two categories of fuels: (1) "historically
managed" fuels, as identified in the proposed rule, and (2) "alternative" fuels, as discussed in the
ANPRM. Through this revised definition, EPA is recognizing that changes in technology and in
the energy market over time have resulted in additional materials being economically viable to
be used as alternative "traditional" fuels. The definitions of traditional fuels and clean cellulosic
biomass are codified in today's rule (§241.2). "Traditional fuels" is defined in today's final rule
as materials that are produced as fuels and are unused products that have not been discarded and
therefore, are not solid waste including: (1) fuels that have been historically managed as
valuable fuel products rather than being managed as waste materials, including fossil fuels (e.g.,
coal, oil and natural gas), their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil,
refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane,
and coke oven gas) and cellulosic biomass (virgin wood); and (2) alternative fuels developed
from virgin materials that can now be used as 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. Clean cellulosic biomass is also codified in
today's rule (§241.2) and includes those residuals that are akin to traditional cellulosic biomass,
such as forest-derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark)
sawdust, trim, and tree harvesting residuals from logging and sawmill materials), corn stover and
other biomass crops used specifically for energy production (e.g., energy cane, other fast
growing grasses), bagasse and other crop residues (e.g., peanut shells), wood collected from
forest fire clearance activities, trees and clean wood found in disaster debris, clean biomass from
land clearing operations, and clean construction and demolition wood. "Clean" cellulosic
biomass is cellulosic biomass that does not contain contaminants at concentrations not normally
associated with virgin biomass materials. As indicated above, this description of clean is
modified slightly in today's rule. The previous description included non-hazardous secondary
material that has not been altered (either chemically or through some type of production
process), such that it contains contaminants at concentrations normally associated with virgin
biomass materials.
Traditional fuels as described above are not secondary materials or solid wastes.
Comment r3a-Bl-11:
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Several industry commenters suggested that EPA include off-spec used oil, scrap tires,
resinated wood products, treated wood, pulp and paper mill residues, and recycling process
residuals in its definition of traditional fuels. They claim that these materials have histories of
use as valuable fuel products. Another commenter suggested that secondary materials from new
processes to meet Renewable Fuel Standards (RFS) should be defined as traditional fuels.
According to the commenter, not defining those materials as traditional fuels could lead to
reduced beneficial use, could negatively impact the economics of these newly developing
processes, and could increase the use of conventional fossil fuels. This could significantly harm
the prospects of reaching RFS goals.
EPA's Response:
For a discussion of comments and EPA responses related to each of the individual
materials listed above and their use as traditional fuels, see their respective subsections within
Section V.B. Regarding the RFS program, the Agency disagrees with the commenter that
materials from processes to meet the RFS standard should be defined as traditional fuels. Under
the RFS program, EPA is responsible for developing and implementing regulations to ensure that
transportation fuel sold in the U.S. contains a minimum volume of renewable fuel. Today's rule
addresses only the use of non-hazardous secondary materials as a fuel or ingredient in stationary
source combustion units (regulated under CAA section 112 and 129), and does not impact other
end uses of these materials, including their use as a transportation fuel.
Comment T3a-Bl-21:
There are many other materials that might be considered as secondary materials, but
because of their energy content, have been identified as viable fuels, particularly as the cost of
fossil fuels have increased over time. Citing phrases from the proposed rule, one commenter
stated that "Changes in.. .the energy market," as well as systems designed and installed by
cement plants in order to manage these materials ("changes in technology"), would suggest that
materials, such as plastics, paper and paper residues, and tires should qualify under this
definition of "traditional fuels."
EPA's Response:
As indicated in the discussion above, EPA agrees that there is a category of materials that
are legitimate alternative fuels that have not been discarded and may not have been traditionally
used as fuels (i.e., a product that is created for its use as a fuel), but that are nonetheless
legitimate fuels today because of changes in technology and in the energy market. Such
alternative fuels would include clean cellulosic biomass, currently mined coal refuse, and on-
specification used oil. See the respective subsections within Section V.B for a further discussion
of each of these materials. As discussed in the proposed rule, the Agency believes materials,
such as plastics, paper and paper residues and tires that have not been removed from vehicles and
managed under an established tire collection program typically have been discarded, and thus
would not be considered traditional fuels or legitimate alternative fuels.
Comment T3a-Bl-31:
Another commenter stated that EPA does not say why it regards certain fuels as
"traditional" and, indeed, stresses that the term "traditional" "should be flexible to account for
increasing use and changes in commodities, technologies, markets, and fuel prices." Thus, EPA
makes clear that the term "traditional fuels" will accommodate fuels that are anything, but
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"traditional." EPA provides no basis at all for assuming that none of the fuels it labels
"traditional" are not actually waste.
EPA's Response:
EPA disagrees with the commenter. As described in the ANPRM and proposed rule,
traditional fuels, such as fossil fuels have been burned historically as fuels and have been
managed as valuable products. They are considered unused products and are not secondary
materials and are not solid wastes unless discarded. We added "alternative fuels" to the
definition of traditional fuel in today's rule to recognize that changes in technology and in the
energy market have resulted in additional materials being economically viable to be used as
alternative "traditional" fuels. The definition is codified in §241.2 in response to comments
received on the proposal and to provide clarity in the application and the meaning of traditional
fuel.
Comment T3a-Bl-41:
Other commenters suggested that, in order to further clarify the definition of traditional
fuel, if a fuel was on record as being used before a specific year, e.g., 1980, that it be categorized
as a traditional fuel. Still other commenters suggested that additional rule text is needed to
clarify that non-hazardous secondary materials used traditionally as fuels are not solid wastes.
Finally, to address any ambiguity about which materials are traditional fuels, another commenter
stated that EPA should include a petition process in the rule that would allow sources to seek a
determination on whether a material may be considered a traditional fuel.
EPA's Response:
As described in the ANPRM and proposed rule, traditional fuels, such as fossil fuels have
been burned historically as fuels and have been managed as valuable products. They are
considered unused products and are not secondary materials unless discarded. We do not agree
that a specific year should be identified to define historically managed traditional fuels. First, it
is not clear what year should be selected and why and what the basis for picking a particular year
would be. In addition, as we noted in the proposal, the wide variability of historic use and
management of this category of fuels does not lend itself to identification of a specific year. As
discussed above, EPA does wish to clarify 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.
The Agency received only a few comments that supported a petition process for
traditional fuels. In light of the time and resource intensive nature of such a process for the
petitioner, the Agency believes that the revised codified definition in today's rule together with
the preamble discussion should provide the basic guidance needed for the regulated facility to
determine whether the material qualifies as a traditional fuel. Therefore, today's rule does not
include a petition process for an Agency determination that a material is, or is not, a traditional
fuel. However, any person can petition EPA under the Administrative Procedure Act (APA),
section 7004 of RCRA, and general principles of administrative law for modifications to its
regulations. Thus, if a person believes that additional materials should be included as a
traditional fuel or alternative fuel, they may petition EPA to request such a change through
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rulemaking. In addition to the specific changes requested, the petition would also need to
include a justification and rationale for the change.
Comments T3a-Bl-51:
"Hogged fuel" should be added to the list of "clean" biomass materials. Hogged fuel is
bark and other wood removed from the tree that cannot be chipped and used in making pulp,
paper, and wood products.
EPA's Response:
We believe that the materials described by the commenter as "hogged fuel" are currently
covered by the terms "clean and unadulterated bark" and "tree harvesting residuals from logging
and sawmill materials" within the definition of traditional fuel. However, we are aware that
there are varying definitions of "hogged fuel" and point the readers to the sections describing
traditional fuel and secondary materials to determine if their hogged fuel would be considered a
type of traditional fuel or a non-hazardous secondary material.
2. Manure.
The proposed rule explained that the Agency lacked sufficient data to evaluate whether
manure burned for energy recovery is a waste. As a result, we did not take a position one way or
the other, but rather requested comment, information and data on the legitimacy criteria, which
are designed to determine whether a non-hazardous secondary material when combusted is a
waste. Specifically, these criteria deal with the levels of the various contaminants in manure, the
energy content of the manure, and on how manure is handled from its point of generation to the
point it is used as a fuel.
The proposal also stated, however, that if manure is processed into biofuels (for example,
by anaerobic digesters), such biofuels would be considered a legitimate non-waste fuel that has
been processed from a non-hazardous secondary material provided "the biofuel" meets the
legitimacy criteria—that is, provided it is managed as a valuable commodity, has a meaningful
heating value and contains contaminants at levels that are comparable to or lower than those in
traditional fuels. The proposal again acknowledged, however, that we had limited data on
biofuels that are produced from animal manures, and requested that commenters provide
additional data on the extent to which manures are currently processed into biofuels, as well as
data to support whether biofuels produced from manure meet our legitimacy criteria. See 75 FR
at 31863.
Comment r3a-B2-11:
The Agency received comments both supporting and opposing the designation of manure
as a waste. Specifically, two commenters asserted that poultry litter that is burned as a fuel poses
health hazards (e.g., from arsenic that is added to poultry feed), but provided no data to support
this position. Another comment submitted in response to the ANPRM stated that, due to the
nature of manure, there is the possibility of widespread environmental harm due to the release of
pathogens from animal manure, and that concentrated animal feeding operation (CAFO) wastes
are known to contain heavy metals, halogens, dioxins, and other hazardous compounds. They
assert chicken litter has elevated arsenic levels and that swine waste has high amounts of
ammonia, nitrogen, and phosphorous. Still another commenter suggested that poultry litter that
is burned in power plants emit more pollutants per million Btus when compared to coal fired
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power plants. Another commenter referenced a 2008 report that described the risks associated
with CAFOs.6 This report stated that CAFOs are sited in rural communities that bear the brunt
of the harm caused by CAFOs, including the frequent presence of foul odors and water
contaminated by nitrogen and pathogens, and that the use of antibiotics in CAFOs, especially for
non-therapeutic purposes, such as growth promotion, contributes to the development of anti-
biotic resistant pathogens that are more difficult to treat. Finally, one Midwest state commented
that when manure supply significantly exceeds demand for manure as a fertilizer, the excess is
treated as a waste and should be regulated as a waste under this rule.
On the other hand, a commenter argued that EPA should not classify poultry litter as a
solid waste and provided some contaminant data on poultry litter generated in the United
Kingdom.7 Another commenter described how their company collects poultry litter from
growers for use as a fuel in dedicated (off-site) biomass power plants. The commenter asserts
that the poultry litter satisfies all the legitimacy criteria. Specifically, this commenter describes
operations (and argues) that the poultry litter is managed as a valuable product by the poultry
litter generators and transporters, as well as by the power plants. The commenter describes
poultry litter generators as collecting the litter on a continual basis and storing it in enclosed
poultry barns. The poultry litter is then transported in completely covered trucks to the power
plant where it is unloaded in a fully enclosed fuel hall and is tested for fuel quality to ensure
contractual obligations are being met by the growers. After sampling, the trucks dump the litter
into a concrete reception pit within the fuel hall. Then, before being combusted, the commenter
indicates that the biomass fuel is processed (e.g., processed in a "de-lumper" followed by a disc
screen) to breakdown the clumps of material and remove incidental non-combustible tramp
materials. The commenter also asserts that poultry litter satisfies the contaminant legitimacy
criterion, but only provided data on sulfur and chlorine levels, noting the reported chlorine levels
averaged 0.7 percent (on a dry basis). They also provided data on the heating values of poultry
litter that ranged from 3-4,000 Btu/lb, explaining that this material is a self-sustaining fuel
(requiring no supplemental fuel), although they also note in their comments that the poultry litter
is mixed with other biomass before being used as a fuel. The developer of this plant has
indicated that they have proposals to build similar type plants in North Carolina, Virginia, and
Georgia, but has not received approval from local authorities. Another firm has a proposal for a
plant in Connecticut, designed to run on litter from an egg farm, but funding for this plant dried
up as a result of the U.S. financial crisis. Additionally, two power plants (one in Texas and one
in California), each currently mothballed, but scheduled to reopen in 2011, would use cattle
manure as feedstock.
Finally, two states commented that manure is excluded from the definition of solid waste
under their laws and regulations. One of these states excludes manure from being defined as a
solid waste when it is returned to the soil as fertilizer or as a soil conditioner, while the other
exempts it from its statutory definition of solid waste.
Regarding our request for comment on the extent to which manures are currently
processed into biofuels, as well as data to support whether biofuels meet the legitimacy criteria,
6	Gurian-Sherman, Doug, CAFOs Uncovered: The Untold Costs of Confined Animal Feeding Operations, Union of
Concerned Scientists (April 2008).
7	This commenter reported poultry litter as having sulfur, chlorine, and nitrogen levels of 0.35%, 0.16%, and 3.3%,
respectively, and a net heating value of 4,900 Btu/lb.
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one state referenced a June 2009 Report to Congress8 that reviewed the current commercial use
of manure to energy systems, and found that few exist, and that it is unlikely in the near term
future for more to be developed due to technological and economic barriers. Another state
commented that they were aware of one gasification system that has been built on a pilot scale
that uses chicken and poultry litter as a feedstock. Another commenter stated that about 120
dairy farms and 30 hog farms use manure as a feedstock for anaerobic digesters which are
designed to capture the methane gas in manure. Most farms then burn the gas as a feedstock for
on-farm electrical generation, which can be used to off-set the farm's purchases and to sell
electricity to the power grid. This commenter also noted that one very large farm in the Phoenix
area further cleans the methane and sells it to a natural gas company whose pipeline runs next to
the farm.
A Tribe requested that EPA finalize legitimacy criteria that does not discourage the
development of biogas technology since it is a clean carbon-neutral fuel needed to help address
climate change. This Tribe explained that its renewable energy plans focus, in part, on
production of biogas from animal, cheese, and other organic material, and requested that EPA
either exempt biogas from the contaminant legitimacy criterion or require that, overall,
contaminants in gaseous fuels not be "significantly higher" in concentration than contaminants
found in traditional fuel products that the combustion unit is designed to burn. The Tribe is
concerned that a direct numerical comparison of contaminant levels of biogas to natural gas that
requires all contaminants in biogas to be equivalent or below the concentrations found in natural
gas would discourage the development of biogas technology.
EPA's Response:
First, based on the information provided to us, we could not make a blanket
determination that all manure is a traditional fuel or that it is a solid waste. However, upon
reviewing the few comments and data received, we conclude that animal manure that is used as a
fuel "as generated" does not satisfy the legitimacy criteria, and thus, if combusted "as
generated," is a solid waste. However, as we discuss in other parts of today's preamble, there are
circumstances where manure would not be considered a solid waste when burned as a fuel for
energy recovery. We discuss these circumstances below. In addition, we recognize that manure
can have other beneficial uses and emphasize that we are not making a solid waste determination
on those other uses through this rulemaking.
Specifically, we find that the levels of certain pollutants, such as nitrogen and chlorine, in
certain types of manure, as generated, may not be comparable to those levels found in traditional
fuels that otherwise would be burned. This is based on limited data found in a North Carolina
State University9 study that indicate some types of manure have higher levels of nitrogen and
chlorine when compared to traditional fuels that otherwise would be burned in the energy
recovery device.10 Regarding the commenter's reference to pathogens, pathogens are not
8	USD A, June 2009. Manure Use for Fertilizer and for Energy Report to Congress. Economic Research Service.
June 2009, pp. 32-39. http://www.ers.usda.gov/publications/ap/ap037/ap037.pdf.
9	Animal and Poultry Manure Production & Characterization. North Carolina State University Cooperative
Extension Service. Raleigh, NC.
http://www.bae.ncsu.edu/programs/extension/manure/awm/program/barker/a&pmp&c/
10	Some manures were listed as having the following mean levels for chlorine and nitrogen: CI-1% by weight and
N - 3.5% by weight reported as total Kjeldahl nitrogen as N. By comparison, coal contains chlorine levels ranging
from as low as 0.01% to as high as 0.74 percent and nitrogen levels ranging from 0.6% to 1.9%.
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included as a contaminant in today's rule, since that definition focuses on those constituents
identified in the CAA that EPA will be evaluating to determine whether to establish emission
standards (see also the discussion in V.D.3).
We also find that manure, as generated, that is used as a fuel does not satisfy our
meaningful heating value criteria, since the limited data we received shows that manure, as
generated, has heating values lower than 5,000 Btus/lb, as-fired. In fact, one commenter noted
that for manure to be considered to have fuel value, that it typically should have a moisture
content of less than 25 percent, and manure, as generated, typically has a higher moisture
content. We also note that to satisfy the legitimacy criteria, today's final rule requires that
facilities that burn non-hazardous secondary materials with a heating value of less than 5,000
Btus/lb would need to demonstrate that such non-hazardous secondary materials have
meaningful heating values by describing whether the energy recovery unit can cost-effectively
recover meaningful energy from the manure (see Section V.D.2).11 While one commenter
provided data to show that a power plant that is dedicated to burning poultry litter would meet
the meaningful heating value criteria, even though the Btu content of the poultry litter is less than
5,000 Btu/lb, as-fired, we believe that these limited data can't be used to suggest that all or most
manure that has a heating value of less than 5,000 Btu/lb, as-fired, could meet this
demonstration.
We acknowledge, however, that farms or other facilities may manage manure as a
valuable fuel commodity and that this manure could also satisfy EPA's contaminant and heating
value legitimacy criteria. Our limited data suggests that manure that is combusted has typically
been collected, stored, and processed. Thus, today's final rule also says that manure would not
be considered a solid waste when burned in a combustion unit as a fuel for energy recovery
under the following circumstances:
•	Within the Control of the Generator: Manure that is burned in a combustion unit as a
fuel for energy recovery would not be a solid waste if the manure is burned in a
combustion unit that is within the control of the generator and the manure meets the
legitimacy criteria.
•	Processing of Manure: Manure that is "sufficiently processed"12 would not be
considered a solid waste (after processing) when burned in a combustion unit as a fuel for
energy recovery provided the processed manure meets the legitimacy criteria. This is a
self-implementing provision, such that a petition would not need to be submitted to EPA
and is not limited to "within the control of the generator." Thus, for example, a farm or
third party could process the manure to remove or destroy contaminants that are not at
levels comparable to those contained in traditional fuels or improve the materials heating
value, and after processing, to the extent the processed manure meets the legitimacy
11	As we note elsewhere in today's preamble, this demonstration would be self-implementing and would not require
a petition to EPA, but the person would be required to keep appropriate records as to the basis for this
demonstration..
12	Processing (as it relates to fuels) means any operations that transform the discarded non-hazardous secondary
material into a legitimate fuel 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, and operations that chemically improve the as-fired energy content of
the material. Minimal operations that result only in modifying the size of the material do not constitute processing
for the purposes of this definition.
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criteria, the processed manure would not be a solid waste when burned as a fuel for
energy recovery.13 Also, as we discussed in the proposed rule, we expect that manure can
be processed into a non-waste gaseous fuel (e.g., via anaerobic digestion or gasification
processes), as suggested by commenters. This gaseous fuel would also have to satisfy the
legitimacy criteria, and while we did not receive data on contaminant levels of gaseous
fuels that are, or could be, produced, we generally expect that a system could be designed
to produce a clean gaseous fuel that would satisfy all of our legitimacy criteria.
• Non-Waste Determination Petition Process: Manure, as generated, that has been
transferred to a third party for combustion as a fuel for energy recovery, but has been
granted a non-waste determination from EPA would not be considered a solid waste.
This provision establishes a case-by-case process that provides persons an administrative
process for receiving a formal determination from EPA that, in this case, manure, as
generated, that has not been discarded in the first instance and is indistinguishable in all
relevant aspects from a fuel product, is not a solid waste. Any petition submitted to EPA
requesting a non-waste determination would need to demonstrate that the manure has not
been discarded in the first instance, satisfies the legitimacy criteria for fuels, and satisfies
the following criteria: (1) whether market participants treat the manure as a fuel rather
than a solid waste; (2) whether the chemical and physical identity of the manure is
comparable to commercial fuels; (3) whether the manure will be used in a reasonable
time frame given the state of the market; (4) whether the constituents in the manure are
released to the air, water or land from the point of generation to the point just prior to
combustion of the manure are released at levels that are comparable to what would
otherwise be released from traditional fuels; and (5) other relevant factors.
We partially agree with the commenter that was concerned about the legitimacy criterion
that would require contaminants in biofuels to either be equivalent to, or lower than, levels found
in natural gas. While we believe it is beneficial to promote the use of clean burning fuels, such
as biofuels, non-waste fuels produced from secondary materials should have comparable or
lower levels of contaminants relative to traditional fuels used today, since gaseous fuels that are
produced from secondary materials have the potential to have elevated levels of contaminants
(such as sulfur). As a result, we believe it is appropriate to require, as proposed, that
contaminants be comparable, or lower than, those levels found in traditional fuels. However, as
discussed in Section V.D.3, we are not defining comparable to mean "equivalent to or lower
than" or "no higher than" the level of the contaminant in the traditional fuel. Rather, EPA is
generally defining "comparable to or lower than" to mean contaminants can be present in non-
hazardous secondary materials within a small acceptable range, or at lower levels, relative to the
contaminants found in the traditional fuels. Thus, biofuels that are produced from non-hazardous
secondary materials can have contaminants that are somewhat higher than the traditional fuel
that otherwise would be burned and still qualify as being comparable, and would not be
considered a solid waste.
13 As noted previously, one commenter described their operation and noted that "the mixed biomass fuel is lightly
processed (e.g., processed in a "de-lumper" followed by a disc screen) to break down clumps of material and remove
incidental non-combustible tramp materials." This comment does not contain enough information to determine
whether or not this would meet the regulatory definition of processing in today's rule. That is, processing is
designed to produce or extract a product from a waste—not just to chop the waste up. However, to the extent that
this level of processing is considered sufficient, the processed manure would not be a solid waste when burned in a
combustion unit as a fuel for energy recovery.
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Comment T3a-B2-21:
Manure used as a fuel that would otherwise be applied to the land covered under a
nutrient management plan14 is in no way discarded.
EPA's Response:
We recognize that manure may also be beneficially used in other end uses, such as a
fertilizer. As we have noted elsewhere in the preamble to today's rule, EPA is not making any
determination whether 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 beneficial uses, and EPA will continue to look to the states to make such
determinations.
Comment T3a-B2-31:
Combustion of manure is simply one of the ways of realizing the carbon value of manure
(for energy production/recovery rather than as a soil amendment) and should not be considered
in any way as a means of "discard," since the inherent value of manure as a fertilizer is
essentially preserved in the resultant ash. Further, since the ash from manure combustion is still
suitable as a fertilizer, the commenter also believes that manure does not contain contaminants
that are significantly higher in concentration than traditional fuels.
EPA's Response:
Both wastes and non-wastes can be utilized as fuels and in this rule EPA is determining
what is and is not a solid waste when combusted. As we have stated, there are circumstances
when manure would not be considered a solid waste when combusted. In the commenter's case,
it does not appear that manure being burned solely to improve soil would meet the legitimacy
criteria.
Further, whether the resultant ash is suitable as a fertilizer is not directly relevant to
EPA's solid waste determination for non-hazardous secondary materials used as a fuel since
contaminants that are present in the manure "as generated" can also be destroyed (discarded) in
the combustion process or be directly emitted to the environment, either prior to combustion
(during storage and transportation) or if they are not sufficiently combusted and/or controlled by
the combustion unit's air pollution control system. Contaminants in manure that may be used as
a fuel must be present at comparable or lower levels relative to traditional fuels for the manure to
satisfy the contaminant legitimacy criterion. As previously discussed, EPA concludes that
manure, as generated, may not satisfy this criterion for nitrogen and chlorine.
Comment T3a-B2-41:
Given the biological basis of agricultural products and by-products and the unique nature
of the transfer of agricultural commodities among entities, the commenter requests that EPA
14 A nutrient management plan is defined in the U.S. Department of Agriculture Natural Resources Conservation
Service (NRCS) Standard (590) as, "Managing the amount, source, placement, form and timing of the application of
nutrients and soil amendments." The NRCS nutrient management standard (590) is the guidance provided to NRCS
field staff and other planners when providing technical assistance to producers participating in voluntary programs.
The purpose of the 590 standard is to meet the nutrient needs of the crop to be grown, while minimizing the loss of
nutrients to surface and ground water.
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presumptively grant a non-waste determination for manure that is used as a combustion fuel
outside the control of the generator that would otherwise meet the legitimacy criteria. The
commenter states that crops grown from a cropping operation may be sold/provided to an animal
production operation as a feed input, with the manure from the animal production operation
being sold/provided to a community based or regional energy production system as one of many
fuel sources from that area, with the resultant ash from the energy production system sent back to
the cropping operation as a fertilizer source. The commenter then explains that the cropping and
animal production operator may be the same entity, and asserts that the transfer among entities in
this instance is to facilitate energy recovery, not disposal.
EPA's Response:
Unlike scrap tires and resinated wood residuals, information and data were not provided
that would allow the Agency to presumptively grant a non-waste determination for all manure
that is used as a fuel outside the control of the generator. As a result, we conclude that the final
rule cannot presumptively grant a non-waste determination for manure that is used as a fuel
outside the control of the generator. We note, however, that sources may petition the Agency for
a non-waste determination for materials managed outside the control of the generator (see
Section VII.G), or, as previously discussed, process (as codified in §241.2) the manure into a
non-waste fuel that meets the legitimacy criteria.
Comment T3a-B2-51:
Modern manure management systems that are designed and operated in accordance with
applicable Federal, Tribal, State, and/or local regulations and requirements for air and water
quality should be considered to meet the "adequate containment" requirements.
EPA's Response:
EPA does not agree with the commenter that the statement "manure management systems
that are designed and operated in accordance with applicable Federal, Tribal, State, and/or local
regulations and requirements for air and water quality should be considered to meet the
'adequate containment' requirements" in itself, is sufficient for EPA to conclude that these
systems satisfy the containment requirements because these systems may not have been designed
for the use of manure as a fuel. These Federal, Tribal, State, and/or local regulations and
requirements would have to be examined on a case-specific basis to determine whether manure
that is used as a fuel is managed as a valuable commodity pursuant to EPA's legitimacy criteria.
EPA does not believe that it can conclude that the "adequate management" criterion is met based
on the descriptions of management practices that have been provided to EPA, such as stockpiling
manure in open lots to facilitate drying.
Comment T3a-B2-61:
Manure satisfies EPA's meaningful heating value legitimacy criterion since it typically
has energy contents ranging from 6,000 to 8,000 Btu/lb on a dry basis.
EPA's Response:
The data provided by the commenter summarize heating values on a "dry basis," rather
than on an "as-fired" basis that accounts for the moisture content of the material, and thus, these
data are not relevant to the "meaningful heating value" legitimacy criterion. Except as otherwise
noted, to satisfy the meaningful heating value criterion, the non-hazardous secondary material
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must have at least 5,000 Btu/lb, as fired (accounting for moisture), since the as-fired energy
content is the relevant parameter that must be assessed to determine if it is being discarded
rather than used as a fuel for energy recovery. See Section VII.H. 1. As previously discussed,
the data available to EPA on an "as fired" basis would suggest that much of the manure, as
generated, would have heating value levels of less than 5,000 Btu/lb. If the non-hazardous
secondary material has a [meaningful] heating value of less than 5,000 Btu/lb, "as fired," the
secondary material may still be considered to have a "meaningful heating value," but the source
must demonstrate that a meaningful heating value is derived from the manure, and appropriate
records kept.
3. Other Biomass.
The proposed rule preamble discussed many different forms of biomass, including
cellulosic and non-cellulosic biomass.15 How the final rule views clean biomass was addressed
earlier in Section V.B. 1, which addresses traditional fuel. Manure was discussed in the previous
section (Section V.B.2), while pulp and paper sludges and resinated wood residuals will be
discussed in more detail in Sections V.B.4 and V.B.6, respectively, of this preamble. This
section discusses other biomass materials that may be burned as a fuel, and whether or not they
would be considered a solid waste when combusted as a fuel. Specifically, the proposed rule
identified lead-based painted wood, and wood treated with pentachlorophenol, copper-based and
borate-based compound treatments as solid wastes due to elevated contaminant levels relative to
traditional fuels. Moreover, the proposed rule explained that, to the extent that any treated wood
is identified as a hazardous waste, it would not be eligible to be burned in a non-hazardous waste
combustion unit. We also specifically requested comment on the levels of contaminants in
creosote-treated lumber due to the uncertainty associated with the level of contaminants (e.g.,
levels of poly cyclic aromatic hydrocarbons present in creosote).16 We received comments on
construction and demolition (C&D)-derived wood, treated wood, and OCC rejects.
Comment r3a-B3-11:
Since creosote is a derivative of coal, itself a traditional fuel, the comments argued that
creosote-treated wood should also be considered a traditional fuel. They suggested that this
material is treated as a valuable commodity and has been used as a fuel for over a decade. One
commenter provided data that showed that the mobility of contaminants indicates that p-cresol
leaches at 75 percent of the hazardous waste toxicity characteristic leaching procedure (TCLP)
levels in new ties, but that this is reduced to less than 10 percent in ties that are over 10 years old.
Another commenter provided the average results from 605 TCLP tests and 605 totals analyses
for metals on creosote-treated wood. These results were below TCLP limits for all of the
contaminants it contains (i.e., cresol, m,p-cresol, o-cresol leached an average of 1.23 mg/L, 0.90
mg/L, 0.35 mg/L, respectively), although two compounds, 2,4-dinitrotoluene and
hexachlorobenzene, leached at levels close to the toxicity characteristic (TC) regulatory level
(both leached at 0.09 mg/L with a standard deviation of 0.03).17 Another commenter submitted a
compositional analysis that compared the levels of constituents in creosote (not creosote-treated
wood) to crude coke oven tar, a traditional fuel. For example, creosote contains between 8.00 -
17.30% of naphthalene and 0.50 - 0.80% quinoline, respectively, while crude coke oven tar
15	75 FR 31861 -31863
16	75 FR 31863
17	See document EPA-HQ-RCRA-2008-0329-0875.1
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contains between 3.00 - 11.00% naphthalene and 0.18% quinoline). Besides naphthalene and
quinoline, data was also submitted for other compounds on the CAA section 112 HAP list,
including biphenyl and dibenzofuran. The data submitted showed that all contaminants were
present in the creosote at levels greater than in crude coke oven tar.18 Other studies compared
metal contaminants (As, Cr, Pb, and Cu) in creosote- and pentachlorophenol-treated wood (<1.97
ppm As, <4.21 ppm Cr, <64.13 ppm Pb, and 7.65 ppm Cu) to that of wood chips, bark, yard
waste, and forest residuals and found that the levels were comparable (<3.61 ppm As, 0.12 -
4.77 ppm Cr, <17.5 ppm Pb, and <6.44 ppm Cu).19
Finally, a study was submitted that demonstrated that the co-firing of creosote- and
pentachlorophenol-treated wood (10/90 treated wood/coal mix) results in a reduction of 79 - 107
ppm of oxides of sulfur (SOx), 78 - 100 ppm of oxides of nitrogen (NOx), and 0.4 - 0.5 ppm of
total hydrocarbon (expressed as propane) emissions compared to those from samples of Upper
Freeport coal. The same study, however, found that there was an increase of 17 - 84 ppm in HC1
emissions when co-firing with treated wood, although the study noted these levels of HC1
emissions could be within the range from coal found in other areas of the U.S. 20 HC1 is listed on
the CAA 112 HAP list. Other data were submitted that showed that PAH emissions from a
combustion unit are less when burning treated wood (50/50 mixture of creosote- and
pentachlorophenol-treated wood) than when combusting untreated wood. Data were also
provided that indicated that pentachlorophenol and total chlorophenols were destroyed by
combustion at greater than 99.9% removal efficiency.21
EPA's Response:
We do not agree with commenters that creosote-treated wood should be considered a
traditional fuel (either an historically managed traditional fuel or an alternative fuel as codified in
§241.2) solely based on the fact that it is manufactured using coal tar and wood, which are
considered traditional fuels. Creosote was not derived for the purposes of creating a fuel, or the
wood treated with creosote to produce a fuel, but the creosote was produced and used as a wood
preservative. It is not made from virgin materials, but is a secondary material. Creosote is
derived from coal tar through a distillation process and, therefore, creosote has different
chemical concentrations than coal tar. While we recognize that creosote-treated wood has been
utilized as a fuel for over ten years, few markets are available for creosote-treated wood due to
concerns about the contaminants. This strongly suggests that burning this material is a waste
treatment activity.
The TCLP data generally indicates that the material, on average, is not a hazardous
waste. This does not mean, however, that the material is not a non-hazardous solid waste.
Leaching data is not relevant to determine whether or not the treated wood is being discarded.
18	See document EPA-HQ-RCRA-2008-0329-0767.1
19	Holtzman, M.I. and R.S. Atkins, 1995. "Emissions from Combustion of Treated Wood Fuel and Tires in Industrial
Boilers," Presented to the Air and Waste Management Association's Annual Meeting, June 18-23, 1995.
20	Freeman, M.C., W.J. O'Dowd, T.D. Brown, R.A. Hargis, Jr., R.A. James, S.I. Plasynski, G.F. Walbert, A.F.
Lowe, and J.J. Battista, Jr. "Pilot-Scale Air Toxics R&D Assessment of Creosote-Treated and PCP-Treated Wood
Co-firing for Pulverized Coal Utility Boiler Applications." U.S. Department of Energy's National Energy
Technology Laboratory.
http://www.netl.doe.gov/technologies/coalpower/cctc/cctdp/bibliographY/misc/pdfs/haps/2002-710.pdf
21	Smith, S.T., 1996. "Stack Testing Report, Koppers Industries, Inc., Grenada Plant, Tie Plant, MS," Submitted to
the Mississippi Department of Environmental Quality, May 6.
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We do note that the average values and standard deviations provided for 2,4-dinitrotoluene and
hexachlorobenzene suggest that a few samples actually failed the TCLP test and would be
classified as a hazardous waste. Creosote-treated wood that is classified as a hazardous waste
must be managed as a hazardous waste, which is outside the scope of this rulemaking. Even
though most creosote-treated wood is non-hazardous, the presence of hexachlorobenze, a CAA
112 HAP, as well as the other HAPs, in creosote-treated lumber suggests that creosote-treated
wood include contaminants at levels that are not comparable to those found in wood or coal, the
fuel that creosote-treated wood would replace.22 In fact, the data provided demonstrates that
combustion of these materials results in significant destruction, which is an indication of
incineration, a waste activity. Moreover, we would note that this concept involving destruction
is also consistent with the legitimacy criterion for contamination, which is based on the input into
the combustion unit—that is, the contaminant concentration in the secondary material itself and
not what may be emitted into the environment. Accordingly, creosote treated wood, when
burned, seems more like a waste than a commodity and does not meet the legitimacy criterion for
contaminants and, therefore, should be considered a waste when burned as a fuel.
In regards to wood treated with pentachlorophenol, no additional contaminant data was
provided that would reverse our position from the proposal, which determined that
pentachlorophenol was a solid waste due to concerns of elevated levels of contaminants.23 While
some commenters pointed to data that indicates that pentachlorophenol-treated wood (as well as
creosote-treated wood) would have similar or lower air emissions to non-treated woods, the issue
to determine whether a material is burned as a waste or a commodity is based on input and
consequent destruction of contaminants. This is consistent with the legitimacy criteria, under
which to be considered a non-waste fuel, the non-hazardous secondary material itself must have
contaminant levels that are comparable to (or less than) those in traditional fuels. Thus, the
final rule will retain the proposed approach, which considered wood treated with
pentachlorophenol a solid waste. Of course, this assumes that the pentachlorophenol treated-
wood is not classified as a hazardous waste. Hazardous wastes are not covered under the scope
of this rulemaking.
Comments T3a-B3-21:
Comments were submitted that argued that wood treated with borate-based compounds or
copper napthenate did not contain any contaminants, but only contaminant data was supplied for
wood treated with borate-based compounds. That study indicated that the most prevalent borate
treatment, disodium octaborate tetrahydrate, contained 1.5 ppm of As, <1 ppm of Cd, <2.5 ppm
of Cr, <5 ppm of Co, <0.02 ppm of Hg, <2.5 ppm of Ni, and 0.67 ppm of Se.24 Since these
levels represent the contaminant concentration of the borate treatment, the comments argued that
the resulting wood that is treated with this compound would contain even lower concentrations
of contaminants.
EPA's Response:
With respect to borate-treated wood, after reviewing data from the one commenter, which
22	See Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking —Identification of
Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQ-
RCRA-2008-0329-0461.21
23	75 FR 31863
24	See document EPA-HQ-RCRA-2008-0329-1569
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shows that the levels of contaminants in this material are comparable to those found in
unadulterated wood for the seven contaminants for which data was presented, we believe that
such treated-wood meets the legitimacy criterion on the level of contaminants and comparability
to traditional fuels. Therefore, borate-treated wood could be classified as a non-waste fuel,
provided they met the other two legitimacy criteria and provided that the contaminant levels for
any other HAP that may be present in this material are also comparable to or less than those in
traditional fuels. We would also note that such borate-treated wood would need to be burned as
a fuel for energy recovery within the control of the generator. Finally, we are aware that some
borate-treated wood is subsequently treated with other chemicals, such as creosote, to provide an
insoluble barrier to prevent the borate compounds from leaching out of the wood. We did not
receive data on the contaminant levels of the resulting material, but data presented on creosote
treated lumber indicates that this non-hazardous secondary material would likely no longer meet
the legitimacy criteria and would be considered a solid waste when burned as a fuel.
We do not have information generally about the transfer of borate-treated wood to other
companies to make a broad determination about its use as a fuel outside the control of the
generator. (See Section V. A. 1 for a general discussion of the issue concerning use of non-
hazardous secondary materials within and outside the control of the generator and the EPA's
response.) Thus, under today's rule, borate-treated wood would need to be burned as a fuel for
energy recovery within the control of the generator. With that said, we encourage the use of the
non-waste determination petition process to address those instances where transfer of the non-
hazardous secondary material to a different company meets the relevant criteria—that the
secondary material has not been discarded in the first instance and is indistinguishable in all
relevant aspects from a fuel product.
With regard to wood treated with copper napthenate, no additional contaminant data was
provided that would reverse our position in the proposed rule, which considered wood treated
with copper napthenate a solid waste because of concerns of elevated levels of contaminants.25
We acknowledge today, as we did in the proposed rule, that we do not have sufficient
information on the contaminant levels in wood treated with copper napthenate.26 Thus, if a
person can demonstrate that copper napthenate treated-wood is burned in a combustion unit as a
fuel for energy recovery within the control of the generator and meets the legitimacy criteria or,
if discarded, can demonstrate that they have sufficiently processed the material, that person can
handle its copper napthenate treated-wood as a non-waste fuel.
Comments T3a-B3-31:
Commenters argued that, although C&D-derived wood is discarded by construction and
demolition sites, it is sufficiently processed into a non-waste fuel. It is received at a mixed C&D
processing facility as part of loads from construction and demolition sites. Potential
contaminants are removed as much as possible before it enters the plant. Clean C&D wood is
then separated out from the rest of the incoming stream one of two ways; either through
mechanical means or through humans sorting along a specially built picking line. Painted and
treated wood is identified either visually or utilizing x-ray fluorescence (XRF) analyzers. After
separation, the wood is ground to a specific size and density per the specification of the plant
using the biomass product. The creation of natural wood products follows a similar processing
25	75 FR 31863
26	75 FR 31863
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path, except that C&D wood is more carefully prepared because of the chemical analysis the
C&D product undergoes.
Commenters also stated that C&D-derived wood meets the legitimacy criterion for
having a meaningful heating value. They stated that C&D-derived wood has a heating value of
between 7,000 - 8,200 Btu/lb, and thus, should be considered a non-waste fuel. Data from one
plant that combusts C&D-derived wood found that it had a heating value that ranges from 6,700
- 9,000 Btu/lb, with an average value of 8,200 Btu/lb.
One company provided chemical constituent data on C&D-derived wood that is utilized
at their plant in order to demonstrate that the material meets the legitimacy criterion for
contaminants. The results of this analysis found that the chemical constituents were comparable
to or lower to those found in coal (of unknown source or type). See Table 1 below for the results
of this study.
Table 1. Comparison of contaminant concentrations in samples of coal and C&D-derived
wood.27
Material
Coal (unknown
source or type)
C&D-derived
wood
Sample Size
16
14 -16


(lb/billion Btu)
46.0
56.0

CI
(ppm)
391 - 644
459.2


# of non-detects
0
0


(lb/billion Btu)
0.00622
0.0046

Hg
(ppm)
0.05287-0.08708
0.03772
Median

# of non-detects
0
0
contaminant
concentrations

(lb/billion Btu)
0.374
0.488
Pb
(ppm)
3.18 - 5.24
4.00


# of non-detects
0
0


(lb/billion Btu)
0.00465
0.0218

Cd
(ppm)
0.03923 -0.06510
0.17876


# of non-detects
7
2
27 Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy criterion for contaminants compares
concentrations per mass of the material (not per the heating value of the material), all concentrations reported in
pounds per billion Btu (lb/billion Btu) were converted into parts per million (ppm) with the assumption that C&D-
derived wood has a heating value of 8,200 Btu/lb (as fired) and that sub-bituminous and bituminous coal (the most
common types of coal to be utilized in combustion units) have a heating value of 8,500 - 14,000 Btu/lb (per
Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking -Identification of
Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQ-
RCRA-2008-0329-0461.21).
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Some commenters discussed studies that concluded that the use of appropriately
processed C&D wood is similar in its emission profile to that of virgin wood, although some
older studies indicated an increase in metals emissions (likely due to the inclusion of treated
wood).28 Another commenter submitted a life-cycle assessment that described how the recovery
of C&D wood as a fuel decreased greenhouse gas emissions. This study found that combusting
all C&D wood generated in New Hampshire per year (280,000 tons) will off-set energy from the
northeast power grid and, therefore, result in 70,000 - 130,000 tons less of carbon emissions, 600
tons/year less of particulate matter, 430 tons/yr less of NOx, 2,300 tons/yr less of SOx, 890
tons/yr less of CO, and 10 pounds/yr less of lead. Even when compared simply to the
combustion of virgin wood, it was found that the combustion of C&D-derived wood had lower
impacts: 16,700 metric tons of carbon equivalents were offset, 50 tons/yr less of particulate
matter, 200 tons/yr less of NOx, 485 tons/yr less of SOx, and 69 tons/yr less of CO. 29
EPA's Response:
The proposed rule included clean construction wood in the definition of traditional fuels.
The final rule retains this conclusion, although clarifies the definition of traditional fuels to
include alternative fuels. Clean cellulosic biomass is an alternative fuel as they are clean
cellulosic materials that are indistinguishable in composition from wood that is commonly
burned in combustion units (See the explanation in Section V. A). We note that the final
definition of traditional fuels clarifies that this category includes clean demolition wood as well.
On the other hand, C&D-derived wood that is not clean would not be considered a
traditional fuel, but a solid waste under today's rule. However, C&D-derived wood can be
classified as a non-waste fuel if it has been sufficiently processed and meets the legitimacy
criteria. C&D-derived wood is typically sorted to remove contaminants (e.g., lead-painted wood,
treated wood, non-wood materials), and size reduced prior to burning, producing material that
likely meets the processing and legitimacy criteria for contaminants. (We would also note that
the technology in use today to remove contaminants from C&D-derived wood has increased
considerably.) The data provided by one company demonstrates that C&D-derived wood can be
sufficiently processed to meet the legitimacy criterion for four contaminants, even when these
contaminants are compared to untreated wood concentrations presented in the background
document, Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking
-Identification of Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels
and Key Derivatives.30 A complete determination, however, would also include the comparison
of As and Cr concentrations. We would also note that based on the data presented, C&D derived
wood also meets the meaningful heating value criterion.
28	U.S. EPA, "Wood Products in the Waste Stream: Characterization and Combustion Emissions, Vol. 1,"
November 1996.
National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, ' 'Alternative Fuels Used in the
Forest Products Industry: Their Composition and Impact on Emissions." September 2005.
Larsen, F.S., W.H. McClennen, X. Deng, G.D. Silcox-Person, andK. Allison, 1992. "Hydrocarbon and
Formaldehyde Emissions from the Combustion of Pulverized Wood Waste." Combustion Science and Technology,
85 (1-6) p. 259-269.
29	Jambeck, J., A. Carpenter, K. Gardner, and K. Wietz, 2007. "University of New Hampshire Life-Cycle
Assessment of C&D Derived Biomass/Wood Waste Management," University of New Hampshire, Durham, NH,
December 5.
30	EPA-HQ-RCRA-2008-0329-0461.21
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With respect to those comments that argued that C&D derived wood have an emissions
profile similar to that of virgin wood and that it would decrease greenhouse gas emissions, as we
have noted previously, the criterion or test for determining whether a material is burned as a
waste or a commodity fuel is the level of the contaminant in the secondary material itself - that is
destruction of contaminants indicates a waste treatment activity rather than a commodity fuel.
This is also consistent with the legitimacy criteria that would require that the non-hazardous
secondary material, itself, must have contaminant levels that are comparable to (or lower than)
those in traditional fuels. In any event, because we had no information from the studies on the
extent that these C&D materials were sufficiently processed to remove the contaminants of
concern, we do not know what the emissions results from the submitted studies represent.
Comment T3a-B3-41:
Some comments argued that there should be a de minimis exemption for C&D-derived
wood that is processed to remove painted and treated materials, because while most of the
contaminants are removed from the C&D derived wood, there still may be a small or de minimis
amount remaining on it. Additionally, they also argued that while most non-wood contaminants
are removed, there might still remain some small or de minimis amounts of other materials (e.g.,
paper, insulation, etc.).
EPA's Response:
C&D-derived wood can contain de minimis amounts of contaminants and other materials
provided it meets the legitimacy criterion for contaminant levels.
Comment T3a-B3-51:
Comments argued that OCC rejects, also known in the industry as "recycling process
residuals," are never discarded, and therefore, should be considered a traditional fuel because
they do not leave the plant, but are usually burned on-site as a fuel. In some cases, however,
they do leave the plant to be burned in municipal or commercial energy facilities or employed as
a fuel pellet ingredient.
In addition, while some commenters argued that they did not believe OCC rejects are
ever discarded, they provided information on how OCC rejects are sufficiently processed to
remove contaminants if they are determined to be discarded. For example, strings, wires, rags,
and heavy objects are removed using manual and centrifugal force, while plastic and non-
recyclable paper fibers are removed through screens.
Commenters also stated that OCC rejects meet the legitimacy criterion for contaminants
as they have lower contaminants than traditional fuels. One comment provided data from 10
samples of OCC rejects from one company and 16 samples of coal (of unknown type or origin)
to substantiate that claim (see Table 2).
Table 2. Comparison of contaminant concentrations in samples of coal and OCC rejects.31
31 Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy criterion for contaminants compares
concentrations per mass of the material (not per the heating value of the material), all concentrations reported in
pounds per billion Btu (lb/billion Btu) were converted into parts per million (ppm) with the assumption that OCC
rejects have a heating value of 3,700 Btu/lb (as fired) and that sub-bituminous and bituminous coal (the most
common types of coal to be utilized in combustion units) have a heating value of 8,500 - 14,000 Btu/lb (per
Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking -Identification of
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Material
Coal (unknown
type or origin)
OCC
Rejects
Sample Size
16
10


(lb/billion Btu)
46.0
23.5

CI
(ppm, estimated)
391 - 644
87.0


# of non-detects
0
0


(lb/billion Btu)
0.00622
0.00324

Hg
(ppm, estimated)
0.05287 - 0.08708
0.01199
Median

# of non-detects
0
0
contaminant
concentrations

(lb/billion Btu)
0.374
0.281
Pb
(ppm, estimated)
3.18 - 5.24
1.04


# of non-detects
0
1


(lb/billion Btu)
0.00465
0.00558

Cd
(ppm, estimated)
0.03923 - 0.06510
0.02065


# of non-detects
7
2
Commenters also claimed that OCC rejects meet the legitimacy criterion for being
managed as a valuable commodity, as they are managed in the same manner as analogous fuels -
bark. Prior to burning, this material is co-mingled with bark on the bark pile.
Furthermore, commenters stated that OCC rejects pass the legitimacy criterion for having
a meaningful heating value. For example, a commenter submitted data that indicated that, on a
dry basis, OCC rejects have a heating value of 9,100 Btu/lb, while, as fired, they have a heating
value of 3,700 Btu/lb.32 Another commenter submitted ten tests at plants from one company that
found that the heating value of OCC rejects ranged from 8,700 -13,600 Btu/lb on a dry basis.33
Another commenter submitted a study by the National Council for Air and Stream
Improvement to demonstrate that air emissions from burning OCC rejects are comparable to
burning wood. In this study, emissions results were provided from three plants that burned 4.4 -
30% OCC rejects with 70% - 95.6% wood and compared it to emissions from the same three
plants when they only burned wood. Emissions were tested for total particulate matter (TPM),
S02, NOx, CO, and HC1. The results found that burning OCC rejects did not result in increased
emissions of TPM, SO2, NOx, or CO, but occasionally resulted in a small increase in HC1
emissions.34
Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQ-
RCRA-2008-0329-0461.21).
32	Source: EPA-HQ-RCRA-2008-0329-0871.1
33	Source: EPA-HQ-RCRA-2008-0329-0774.1
34	National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, "Alternative Fuels Used in
the Forest Products Industry: Their Composition and Impact on Emissions." September 2005.
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EPA's Response:
We do not agree with the commenters that OCC rejects should be considered a traditional
fuel or alternative fuel since this non-hazardous secondary material, consisting of recycled paper
and paper products, has not historically been managed as a fuel—that is, the recycling of OCC
and the subsequent use of OCC rejects is a relatively recent activity, nor is it made from virgin
materials. However, we believe that these materials are not discarded when used within the
control of the generator, such as at pulp and paper mills, since these non-hazardous secondary
materials are part of the industrial process.
The data submitted during the comment period would seem to suggest that it would or
could meet the legitimacy criteria. For example, the data received indicated that OCC rejects
have contaminant concentrations that are comparable to, if not less than, coal, wood, and bark,
which are all traditional fuels used at pulp and paper mills. While the meaningful heating value
of the OCC rejects is lower than 5,000 Btu/lb, as fired, it can still meet this criterion if it can be
demonstrated that the unit can cost-effectively recover energy from a non-hazardous secondary
material. The information submitted also demonstrates that OCC rejects are managed as a
valuable commodity as they are managed in the same manner as the analogous fuel - bark.
With respect to the OCC rejects that are shipped off-site for use by another company, the
limited information provided indicates that this material is burned in municipal or commercial
energy facilities (which appears to be municipal or commercial incinerators) and thus, would
clearly indicate discard, or processed to produce a fuel pellet ingredient, which may be a non-
waste, if and after it is sufficiently processed. That is, such limited information would appear to
suggest that when OCC rejects are shipped off-site, which may not happen very often, it is
treated more like a waste than a non-waste fuel. Therefore, the Agency finds that OCC rejects
shipped off-site for burning would be considered a solid waste. However, as already noted, if the
OCC rejects are sufficiently processed to produce a legitimate fuel product, or if a person
submits and is granted a non-waste determination for such OCC rejects, than such non-hazardous
secondary material when combusted as a fuel for energy recovery would be considered a non-
waste fuel.
4. Pulp and Paper Sludge.
In the proposal, EPA determined that pulp and paper sludge35 is not a waste when used as
a fuel within the control of the generator. This was based on limited contaminant data and
information that these sludges are generally used on-site by generators to fuel their boilers and
are treated like valuable commodities. Comments on the ANPRM had stated that these residuals
are primarily composed of biomass and that emissions from burning these non-hazardous
secondary materials are essentially the same as emissions from burning other biomass fuels, such
as bark or wood. Emissions data contained in one report indicated that when sludges were
burned at levels below about 10 to 15 percent of total heat input, that such burning would not
result in elevated levels of criteria or criteria-related pollutants, forty-eight organic compounds,
and metals.
However, given the limited data, EPA requested additional comment on contaminant
levels and the appropriateness of considering these sludges to be non-wastes. EPA also noted, as
35 Pulp and paper sludge includes both primary and secondary wastewater treatment sludges. Primary sludges
consist of wood fiber and inorganic materials, while secondary sludges are primarily microbial biomass.
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an alternative, that it could consider these sludges to be wastes because of chlorine levels in the
sludge.36
Comment r3a-B4-11:
Pulp and paper sludges should be considered a traditional fuel because it has been utilized
as a fuel since the early 1960's. In 2004, 22% of the pulp and paper sludge was used as a fuel.
EPA's Response:
We do not agree that pulp and paper sludges should be considered a traditional fuel.
While some portion of the pulp and paper industry uses these sludges as a fuel, it is not the
industry norm or used as a fuel by a majority of the industry. For example, in 2002, 52% of pulp
and paper sludges was landfilled or stored in lagoons.37 Thus, these materials have not been
historically managed as fuels. Pulp and paper sludges also would not be considered an
alternative fuel, since they are not derived from virgin materials. Pulp and paper mills burn these
secondary materials for energy recovery, but also for waste minimization purposes.38 Therefore,
the Agency does not consider pulp and paper sludges a traditional or alternative fuel.
Comment T3a-B4-21:
The proposed approach that pulp and paper sludges burned within the control of the
generator as a fuel would not be considered a solid waste needs clarification. Specifically,
clarification is needed to determine if pulp and paper sludges that do not leave the site and have
not been discarded (1) can be used as a fuel and (2) must pass the legitimacy criteria.
EPA's Response:
The final rule retains the proposed approach, which considered pulp and paper sludges
that remain within the control of the generator—whether burned at the generating facility, or
burned in combustion units that the generator controls—are considered a non-waste fuel.
However, such pulp and paper sludges must pass the legitimacy criteria to demonstrate that these
non-hazardous secondary materials are "legitimate fuels" in order to be considered a non-waste
fuel.
Comment T3a-B4-31:
Commenters argued that pulp and paper sludges are not discarded if used off-site as they
are used as a legitimate fuel at other locations. One commenter, who identified itself as a power
plant, utilizes pulp and paper sludges generated less than a mile away and stated that the material
is loaded into trucks for the short haul to the steam boilers, dumped into the wood handling
system, conveyed to covered storage where it is contained and burned in the boiler all within the
span of several hours. They suggest that this is a legitimate use of pulp and paper sludges off-
36	75 FR 31862-63
37	Thacker, W., 2007. "Recycling Paper Mill By-products on Forest Lands: By-product Composition, Potential
Applications, and Industry Case Studies." Presentation to EPA Office of Solid Waste Staff, Washington, DC,
January 23, http://www.epa.gov/osw/conserve/rrr/imr/irc-meet/03-paper.pdf.
38	Someshwar, A.V. and A.K. Jain, 2006. "Alternative Fuels Used in the Forest Products Industry: Their
Composition and Impact on Emissions," Technical Bulletin No. 906, National Council for Air and Stream
Improvement, Gainesville, Florida.
Vance, E. 2000. "Recycling Paper Mill By-products on Forest Lands: By-product Composition, Potential
Applications, and Industry Case Studies" The Forest Alternative: Principles and Practice of Residuals Use.
University of Washington College of Forest Resources Publication, Seattle, WA, p. 193-207.
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site and is, therefore, not a waste.
EPA's Response:
We agree that the use of secondary materials off-site (which we assume the commenter
means not within the control of the generator) is not always indicative of waste activity and
would generally agree that the case of the power plant provides an example of when secondary
materials may be legitimately used as non-waste fuels by a different company. However,
information was not provided in the comments which would allow EPA to generally determine
that the transfer of pulp and paper sludges to other companies should always be considered a
non-waste fuel, particularly since a large percentage of these sludges are actually disposed. (See
Section V.A. 1 for a general discussion of this issue and the EPA's response.) Thus, we will
retain the proposed approach that pulp and paper sludges that are transferred to a different
company for use as a fuel will be considered a solid waste. With that said, we encourage the use
of the non-waste determination petition process to address those instances where transfer of the
non-hazardous secondary material to a different company meets the relevant criteria—that the
secondary material has not been discarded in the first instance and is indistinguishable in all
relevant aspects from a fuel product.
Comment T3a-B4-41:
Commenters stated that pulp and paper sludges are adequately processed, such that when
discarded (i.e., sent off-site to another pulp and paper mill or to a power plant), it is a non-waste
fuel. Processing is primarily performed by dewatering. In fact, 84% of all pulp and paper
sludges are dewatered using belt filter presses or screw presses.39 One state commenter stated
that some mills further process pulp and paper sludges into dried pellet products for use as a fuel.
EPA's Response:
We do not agree that dewatering alone meets our definition of processing.40 While
dewatering does improve the fuel characteristics of the material, this action is not sufficient to
make the material sufficiently processed into a non-waste fuel as it is generally part of normal
waste management activities (e.g., prior to landfilling, or prior to burning the sludge for disposal
in an incinerator). In the case of pelletizing the material for use as a fuel, we do not have
sufficient information to make a general determination on whether this would be considered
sufficient processing. However, if the pelletizing process is used to process the sludge into a
form that improves its fuel value, we would agree that this is indicative of fuel activity (similar to
pelletizing sewage sludge, which was used as an example of sufficient processing in Section
VII.D.4 of the proposed rule)41 and we would consider those activities to meet the definition of
processing. Of course, to be considered a non-waste fuel, the processed pulp and paper sludges
would need to meet the legitimacy criteria.
Comment T3a-B4-51:
To show that pulp and paper sludges meet the legitimacy criteria for contaminants, three
commenters submitted a total of 24 characterizations of pulp and paper sludge cake from 16 pulp
and paper mills. These characterizations show that contaminants were found at non-detect
39	See document EPA-HQ-RCRA-2008-0329-0871
40	See the discussion on dewatering of sewage sludge in Section VII.F of the proposed rule, 75 FR 31878
41	75 FR 31878
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levels. For example, As, Cr, Hg, and Pb were at levels of <0.4 ppm, <21.4 ppm, <0.44 ppm, and
<21.6 ppm, respectively.42 Elevated levels (6.36 - 45.8 ppm) of methyl ethyl ketone (MEK)
were found in five out of eight samples from one pulp and paper mill, although we do not know
to what extent this data is reflective of pulp and paper sludges generally since eight other
samples (three from the same mill and five from five other mills) had non-detect levels of MEK
at a detection level of <0.013 ppm.
Chlorine levels among an unknown number of pulp and paper sludge samples were noted
by one commenter to have an arithmetic mean of 465 ppm, a median of 318 ppm, a maximum
level among mill means of 2,399 ppm, and a maximum among individual analyses of 4,800 ppm
(all on a dry weight basis). This is compared to a USGS database on U.S. coals to have chlorine
levels with an arithmetic mean of 614 ppm and a maximum among individual analyses of 8,800
ppm (both on an as-is basis, which has <10% moisture). However, one sample provided in the
comments had a chlorine concentration of 16,550 ppm (as received), while another had a
chlorine concentration of 23 ppm (as fired). Other samples had chlorine concentrations of
between 1,050 - 4,800 ppm (dry basis). Commenters also argued that combustion of high
chlorine content in some pulp and paper sludge is not a waste treatment activity. Sources that
produce secondary materials that have heat value can increase their energy efficiency by re-using
these materials as a fuel. Materials are chosen for their constituents that are beneficial to the
combustion or manufacturing process; more often, the materials are chosen for extracting their
energy value.
In terms of meeting the legitimacy criteria for a meaningful heating value, comments
were submitted that pulp and paper sludges have a heating value of between 3,300 - 9,500
Btu/lb, on a dry basis; no information was submitted on the "as fired" heating value of pulp and
paper sludges. Commenters also argued that pulp and paper sludges meet the legitimacy
criterion for being managed as a valuable commodity as they are dewatered to increase their
energy value, collected on a continual or frequent basis (as produced), further processed and
consolidated, including the removal of biosolids. One state commenter stated that some mills
make a dried pellet product from the sludges for use as a fuel. One power plant that utilizes pulp
and paper sludge generated less than a mile away stated that the material is loaded onto trucks
for the short haul to the steam boilers, dumped into the wood handling system, conveyed to
covered storage where it is contained and burned in the boiler all within the span of several
hours.
EPA's Response:
The final rule will retain the proposed approach—pulp and paper sludges managed within
the control of the generator are a non-waste fuel as they would seem to meet all of the legitimacy
criteria, as discussed below.
The proposed rule acknowledged a general lack of data regarding contaminant levels in
pulp and paper sludges and specifically requested data on the issue in order to make a
determination of whether pulp and paper sludges meets the third criterion of comparable
contaminant levels to traditional fuels. The information we received indicates that these non-
hazardous secondary materials meet the contaminant legitimacy criterion. While commenters
42 Document EPA-HQ-RCRA-2008-0329-1395; National Council for Air and Stream Improvement, Inc. Technical
Bulletin (TB) 906, "Alternative Fuels Used in the Forest Products Industry: Their Composition and Impact on
Emissions." September 2005.
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compared contaminant levels in pulp and paper sludges to those in coal and found lower levels,
we also found it appropriate to compare the contaminant concentrations to untreated wood since
wood is also burned in pulp and paper mills. Since levels of chlorine in untreated wood are as
high as 11,890 ppm, even the high end of the range of chlorine in pulp and paper sludges is
comparable to that in untreated wood. When comparing to the information that we have
compiled on coal, we find that chlorine levels in coal are reported to be as high as 7,400 ppm,
and that average chlorine values for bituminous and sub-bituminous coal are 1,200 ppm and 140
ppm, respectively. Thus, the average chlorine levels reported in most pulp and paper sludge are
likely to be comparable with average chlorine levels found in bituminous coal.43 We note that
there is one sample in the submitted data set that has a chlorine concentration of 16,550 ppm.
We do not consider this to be comparable to the levels found in coal and, where it is replacing
coal, would consider this material to be a solid waste. However, since this was the only sample
with such a high concentration of chlorine, we do not think that it is representative of pulp and
paper sludges generally.
The levels of metals were also lower in pulp and paper sludges than untreated wood and
coal. For example, untreated wood has levels of As, Cr, Hg, and Pb as high as 6.8 ppm, 130
ppm, 2 ppm, and 340 ppm, respectively, while coal has levels of As, Cr, Hg, and Pb as high as
80 ppm, 121.3 ppm, 2 ppm, and 80 ppm, respectively.44 These levels are all greater than those
submitted in the comments for pulp and paper sludges. We did receive data on some elevated
levels of MEK in five samples from one mill, but we do not believe that this data changes are
view that these sludges generally meet the contaminant legitimacy criterion, especially since
EPA removed MEK from the CAA 112 HAP list in 2005,45 and thus, MEK is no longer
considered a "contaminant" in evaluating the contaminant legitimacy criterion.
While pulp and paper sludges can have a heating value below 5,000 Btu/lb, even on a dry
basis, pulp and paper mills do try to improve the heating value through dewatering. Thus, we
believe that pulp and paper sludges generally meet the meaningful heating value legitimacy
criterion. Also, since pulp and paper sludges are handled promptly (i.e., not stored for long
periods of time and are contained in storage units along with traditional fuels (such as wood and
bark) with minimal loss (similar to a valuable commodity), we agree that pulp and paper sludges
are managed as a valuable commodity.
Comment T3a-B4-61:
Emission tests from two states were said to have shown no significant change in
emissions associated with the combustion of pulp and paper mill sludge, although the specific
emission test results were not provided in these comments. One other commenter stated that any
emissions from those materials will be accounted for in the source's emission limits in its permit.
One other commenter submitted a study by the National Council for Air and Stream
Improvement (2006), which summarizes many different studies on the emissions from the
combustion of pulp and paper sludges. Some studies show that keeping the amount of pulp and
paper sludges to no more than 10 - 15% of the total heat input will result in no increased
43	See the Material Characterization Papers for Pulp and Paper Sludges and for Traditional Fuels that are located in
the docket for today's rule (EPA-HQ-RCRA-2008-0329).
44	Ibid.
45	The Agency removed MEK from the list of HAP because it concluded that the potential exposures to MEK
emitted from industrial processes may not reasonably be anticipated to cause human health or environmental
problems.
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emission impacts. However, two studies stated that dioxin and furan emissions could result from
the burning of pulp and paper sludges and that the levels of these compounds in the emissions
are directly relevant to the amount of chlorine in the sludges. Thus, chlorine levels should not be
greater than those in found in wood. 46
EPA's Response:
First, we would note that emissions testing results is not the criterion or test for
determining legitimacy as combustion systems vary greatly and this rule aims to determine what
is a solid waste. To be considered a legitimate non-waste fuel, the non-hazardous secondary
material itself must have contaminants at levels that are comparable to (or lower than) than those
in traditional fuels. From the data available, it shows that chlorine levels in pulp and paper
sludges, for example, are typically at levels that are lower than those found in coal and wood, as
noted above. Nevertheless, we also recognize that high chlorine levels are an indicator that the
combustion of such materials may result in increased emissions of dioxins and furans, such that
if chlorine levels in pulp and paper sludges are excessively high, it may be an indication that the
burning of those sludges is more reflective of waste management. Thus, chlorine levels in pulp
and paper sludges should particularly be monitored and evaluated as part of a plants
determination that their pulp and paper sludges meet the contaminant legitimacy criterion.
5. Scrap Tires.
In the proposal, EPA stated that whole used tires, including those collected from tire
dealerships and automotive shops and overseen by a state tire collection oversight program, are
initially abandoned and thus meet the plain meaning of discard. As a result, whole used tires that
are not processed into a legitimate fuel or ingredient (e.g., shredded/chipped with steel belts
removed) were considered a solid waste. EPA acknowledged that whole tires can be legitimately
burned as a fuel, but because they have been discarded, were considered solid wastes and subject
to the incinerator requirements in section 129 of the CAA, unless processed into a non-waste fuel
product, in which case it would be subject to the section 112 requirements of the CAA.
However, EPA requested comment in the proposed rule on the discard interpretation
stated in the ANPRM regarding scrap tires that are managed under the oversight of a state tire
collection program, such that these non-hazardous secondary materials collected and sent for
legitimate use as fuels are not discarded and are not solid wastes. EPA also solicited comment
on the processing requirements for whole tires, as well as fuel contaminant data on whole tires or
tire-derived fuel (TDF) chips as compared to coal, the replacement fuel.
In order to clarify the context of the proposed rule comments, the Agency describes the
background below in "a. Background; Scrap Tire Approach in ANPRM and Proposal." The
comments and EPA's responses are listed in "b. Scrap Tire Comments."
a. Background; Scrap Tire Approach in ANPRM and Proposal.
ANPRM Scrap Tire Approach 47 As part of its discussion regarding non-hazardous
secondary materials used as legitimate "alternative" fuels that have not been previously
discarded, the ANPRM noted that scrap tires used as tire-derived fuel, which include whole tires
46	National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, "Alternative Fuels Used in
the Forest Products Industry: Their Composition and Impact on Emissions." September 2005.
47	The ANPRM was published in the Federal Register on January 2, 2009 (74 FR 41). This reference can be found
on page 57 of the FR notice.
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or tires that have been processed and have not been previously discarded, are legitimate non-
waste fuels if they meet the legitimacy criteria i.e., they are handled as valuable commodities,
have a meaningful heating value, and do not contain contaminants that are significantly higher in
concentration when compared to traditional fuel products (see Materials Characterization Paper
on Scrap Tires in the docket for today's rule for a complete discussion on contaminants in TDF
[EPA-HQ-RCRA-2008-0329]). We noted that in many cases, scrap tires that are collected
pursuant to state tire oversight programs (e.g., scrap 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 (not discarded). We also noted that because State
Agencies typically regulate these programs under their state solid waste authorities, it was not
the Agency's intent to undercut the states' authority in this area. We, therefore, requested
comment on whether scrap tires collected pursuant to state tire oversight programs have been
discarded, and whether an EPA designation specifying that scrap tires, for example, managed
pursuant to state tire collection programs are not solid wastes, would adversely impact a state's
ability to manage such a program.
Proposed Rule Scrap Tire Approach.48 The proposal took a different approach regarding
the use of scrap tires when used as a fuel, based on comments received on the ANPRM.
Specifically, some states argued 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.
Scrap tires, regardless of whether they were collected and managed pursuant to state programs or
recovered from legacy waste piles, would be an example of such materials. As a result, the
Agency re-examined its position of how the concept of discard applies to scrap tires. Whereas
the ANPRM had indicated that there may be some number of 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 took the position 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 a case-by-case non-waste determination petition was
granted by EPA.
Proposal Kept ANPRM Scrap Tire Approach as an Option. In the ANPRM, we
considered scrap tires (except from tire dumps) that were collected under state tire collection
programs as non-waste as described above. We reconsidered that position in the proposed rule
as follows: ".. .tires collected under these recycling programs are discarded and are solid wastes.
EPA proposes this formulation for tires, but is asking for further comment on the ANPRM
formulation that secondary material collected and sent for legitimate use as fuels are not
discarded and are not solid wastes.... EPA may issue a final rule containing either set of
provisions depending on information received in the comment period and other information
available to the Agency."
The Scrap Tire Approach in the Final Rule. Based on the proposed rule comments and
all other relevant information in the rulemaking record, EPA has modified its approach for scrap
tires in this final rule. Under today's rule, scrap tires are considered a non-waste when used as a
fuel under the following scenarios:
48 The proposed rule, published on June 4, 2010 in the Federal Register (75 FR 31844) has numerous references to
scrap tires. The statement described under "Proposed Rule Scrap Tire Approach " can be found on pages 31874 and
31875 of the proposed rule.
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(1)	Scrap tires that are removed from vehicles and collected and managed under the
oversight of established tire collection programs (as codified at §241.2) are non-waste fuels49
when burned as a fuel in a combustion unit. See details at §241.3(b)(2)(i).
(2)	Scrap tires that undergo a sufficient level of processing (as codified at §241.2 and
detailed in the scrap tire response to comments) are considered a non-waste fuel, when used as
fuel in a combustion unit, independent of whether they have been previously discarded. See
details at §241.3(b)(4).
All other scrap tires are considered a waste when combusted, unless a non-waste
determination petition is granted per the requirements in §241.3(c).
The comments that led to this approach are further described in the response to comments
below and in Section VII.C.
b. Scrap Tire Comments.
Comment r3a-B5-11:
Many of the commenters that compared the approach for whole scrap tires in the
ANPRM (described previously in this section) with the proposed approach, preferred the
ANPRM approach and believed it was an accurate assessment of how scrap tires are managed.
Many of those commenters argued that whole scrap tires that are handled in this situation have
not been discarded when removed from vehicles for use as a fuel if there is a process or network
that ensures their safe handling prior to use as a fuel. In addition, many commenters listed the
attributes that make it a good fuel, in particular they noted that the heat value for TDF is higher
than typical solid fuels, including coal.
Commenters disagreed with the assumption that we made in the proposed rule that off-
site/third party use of scrap tires equated to discard. Other comments on "transfer to third
parties" apply to other non-hazardous secondary materials in addition to scrap tires and are
addressed in section V.A.I. In addition, commenters said that the owner of the car does not
abandon, dispose of, nor throw away the tire when a tire is changed at a tire shop. These tires are
destined for a beneficial use and are managed as a valuable product. Commenters disagreed with
EPA's statement in the proposal that scrap tires are "discarded" when removed from the
automobile because the generator has relinquished control and the entity receiving the tires may
not have the same incentives to manage them as a useful product. For example, one scrap tire
commenter summarized the discard issue and suggests that if transfer to a third party does not
equate to discard for hazardous secondary materials in specific instances, then EPA is able to
make distinctions for non-hazardous secondary materials like scrap tires. Specifically, the
commenter states, with respect to tire derived fuel:
"EPA's proposed approach stands in stark contrast to EPA's approach to hazardous secondary
materials.... In the Subtitle C regulation, EPA was careful to identify circumstances where
discard would occur based on a record of damages arising from cases of hazardous material
recycling. EPA then shaped its transfer-based exclusion from the definition of solid waste to
49 As described elsewhere, these tires do not need processing (as described in §241.3 (b)(4)), in order to be
considered non-waste since they were not "discarded in the first place." Since these tires were "not discarded in the
first place," boilers and cement kilns can use them as non-waste fuel as whole tires, shredded, or fully processed
TDF at their discretion (provided they meet the legitimacy criteria). Regardless, most types of combustors require
TDF chips, cement kilns are the notable exception.
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regulate only transfers where discard is taking place. See 73 FR at 64677-78. In contrast, with
respect to non-hazardous secondary materials, EPA has no record identifying circumstances
where discard may occur and yet is proposing to determine that all transferred material is
discarded. Any definition of solid waste that sweeps so broadly exceeds EPA's authority under
RCRA. EPA's proposed approach also stands in stark contrast to the approach and guiding
principle outlined in the ANPRM. In the ANPRM, EPA did not assume that all non-hazardous
secondary material that is transferred outside the control of the generator is discarded. Instead,
as in its Subtitle C regulations, EPA was guided by the "overall principle ... that materials
treated as a commodity, rather than as a waste, are not discarded and are not solid wastes so long
as they are legitimately recycled." 74 FR at 53. If such an approach is appropriate for hazardous
substances, a similar or perhaps less demanding determination would be still more appropriate
for non-hazardous secondary materials. First, the dangers of sham recycling are far less.
Second, the fact that industrial boilers are similar and are regulated in similar manner from
industry to industry makes distinctions between industries uniquely hard to justify. EPA offers
no persuasive evidence to overcome these considerations. As noted earlier, EPA says only that it
"believes" that such materials have been discarded and that third parties "may not" have the
same incentive to manage these materials properly as the generator. EPA offers a few off point
examples but makes no effort to investigate this issue in any detail. Furthermore, EPA's
approach ignores the fact that there is an established market infrastructure for the sale and
purchase of secondary fuels such as TDF. As a result, TDF is subject to normal business
practices, including contractual arrangements that establish specifications for TDF. Just as a fuel
supplier needs to provide a specific type of fuel oil to meet a customer's demands, so does the
supplier of secondary fuels. The supplier will comply with the specification demanded by the
customer or they will lose the business. As a matter of company policy, most generators of
secondary material fuels take reasonable precautions to evaluate where their materials are going
as part of risk management."
Commenters also disagreed with our assumptions that led to the Agency's discard
position in the proposal with regard to third party use of scrap tires as follows.
•	They disagreed that third party handlers would lack an incentive to manage them
as a useful material50 because, scrap tire derived materials have an exceptionally
high rate of use in various markets and are sold as valuable products.
•	Commenters also disagreed that scrap tires have the same market incentives for
misuse as does hazardous waste, which EPA referenced in the proposal,51
because, in part, hazardous waste are likely to have a relatively negative monetary
50	The comments are in regard to this statement in the proposal: "When non-hazardous secondary material fuels are
transferred to another party, we generally believe 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." See EPA's statement in the
proposal at 75 FR 31844, page 31875.
51	The comments are in regard to this statement in the proposal, as well as other references to hazardous waste:
"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 DSW [hazardous waste] final rule. (This scenario does not apply to transfers taking place under the transfer
based exclusion for hazardous secondary materials that are generated and then transferred to another company for
the purpose of reclamation.) However, this finding also holds true for non-hazardous secondary materials that are
used as fuel." See EPA's statement in the proposal at 75 FR 31844, page 31875.
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value. They said that those EPA arguments based on hazardous waste are not
relevant to scrap tire markets and usage and is inappropriate to use the rationale
based on hazardous waste cases. Scrap tires do not have the environmental and
economic risks associated with hazardous waste.
•	Furthermore, commenters disagreed that there was currently a pattern of discard
at third party scrap tire reclaimers52 that can be processed and generating
stockpiles as possible evidence of the lack of incentive to perform actual
recycling).
•	Commenters did acknowledge that there were problems in the past with tire
dumps, but since tires are now effectively managed and brought to markets, the
over-accumulation, disposal, and dumping that occurred in the past (as mentioned
in the proposal53) is less of an issue now. In justifying this statement, many
commenters discussed the success of eliminating tire dumps. Specifically, they
argued that fewer than one million tires remain in stockpiles, compared to an
estimate of one billion tires in 1990. It is clear the total number of tires discarded
in tire dumps is being reduced annually, not increasing due to the improper
management which the proposal postulated regarding the current management
practices at third party sites. Also, they argued that of the 300 million scrap tires
that are generated each year, scrap tires are reported to have the second lowest
disposal rate at 10.7% in 2007, with lead acid batteries having the lowest disposal
rate.
•	Commenters, mainly from industry, also disagreed with our statement in the
proposal that scrap tires that are transferred to a third party have entered what is
traditionally considered to be the "waste stream" and therefore should
appropriately be considered solid wastes. Refer to Section V.A.I for the
discussion on related comments (not specific to scrap tires). Some commenters
(including some states), however, agreed that states tend to initially regard tires as
waste until they are beneficially used.
EPA's Response:
In the first place, to the extent these comments refer to EPA's general approach to
secondary material transferred to another party, the Agency refers commenters to Section V. A. 1.
As discussed in that section, 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.
52	The comments are in regard to this statement in the proposal: "As discussed in the DSW final rule, this pattern of
discard at off-site, third party reclaimers appears to be a result of inherent differences between commercial recycling
and normal manufacturing. As opposed to manufacturing, where the cost of raw materials or intermediates (or
inputs) is greater than zero and revenue is generated primarily from the sale of the output, secondary materials
recycling, including when used as a fuel, can involve generating revenue primarily from receipt of the secondary
materials. Recyclers of secondary materials in this situation may thus respond differently than traditional
manufacturers to economic forces and incentives, accumulating more inputs (secondary materials) than can be
processed and generating stockpiles with sometimes little incentive to perform actual recycling."
53	See EPA's statement in the proposal at 75 FR 31844, page 31875.
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Between these broad parameters, EPA has examined a number of specific materials,
recycled on-site and transferred to third parties 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 harvested from vehicles and
resinated wood residuals. Any of EPA's decisions regarding specific materials, if challenged,
must stand or fall based on its individual merit.
With respect specifically to how the Agency is dealing with scrap tires in this rule, the
ANPRM noted that scrap tires that are collected pursuant to tire programs (e.g., scrap tires from
tire dealerships that are sent to used tire processing facilities) are collected and handled as
valuable commodities, and, therefore, have not been abandoned, disposed of, or thrown away.
The ANPRM had indicated that there are instances where non-hazardous secondary materials
would not be considered discarded even if the original generator sent them to another entity
outside of its control.
The proposed rule took an approach that assumed 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 legitimate non-waste fuel products or a non-waste determination
petition was granted by EPA. However, in the proposed rule, the Agency was open to an
alternate interpretation and requested further comment on the ANPRM formulation that scrap
tires collected and sent for legitimate use as fuels are not discarded and are not solid wastes, and
specifically indicated that the Agency "may issue a final rule containing either set of provisions
depending on information received in the comment period and other information available to the
Agency."
After careful consideration of the comments and all the material in the rulemaking record,
including documents cited in the ANPRM and the preamble to the proposed rule, the Agency
agrees that a system where scrap tires are removed from vehicles54 and are collected and
managed under the oversight of established tire collection programs are not "discarded in the
first instance." Such tires (including both whole tires and tires that have been shredded - with or
without metal removal55) are non-waste when used as a fuel in combustion units. These
programs ensure that the tires are not discarded en route to the combustor for use as fuel and are
handled as a valuable commodity as required in the legitimacy criterion in today's rule at
§241.3(d)(l)(i).
Consistent with other non-hazardous secondary materials that are considered to be non-
wastes, scrap tires also meet the rest of the legitimacy criteria for fuel. They meet the
requirement for meaningful heating value, required per §241.3(d)(l)(ii) in that scrap tires have a
higher heating value (12,000 Btu/lb to 16,000 Btu/lb) as compared to coal (the replacement fuel).
54	For purposes of today's rule, the term "vehicle" is meant to include any mechanical means of conveyance that
employs the use of tires.
55	If scrap tires are not discarded in the first place, they do not have to be processed per the standards in today's rule,
but they can be converted to rough shreds or processed into TDF chips at the discretion of the combustor and still be
a non-waste fuel. If the scrap tires were discarded, they have to be processed (with metal removal) per the standards
in today's rule in order to be a non-waste fuel.
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Scrap tires also meet the requirement specified at §241.3(d)(l)(iii) for the non-hazardous
secondary materials to have comparable (or lower) levels of contaminants as compared to the
traditional fuel it is replacing. Refer to the specific response to comments on contaminants.
Established tire collection programs promote the collection of scrap tires and coordinate
with tire dealerships, haulers, processors, and end users. The existing tire collection programs
form an established collection infrastructure. These established tire collection programs together
with state bans on landfilling in most states56 effectively result in the beneficial reuse of tires (as
fuel or used in other scrap tire markets) as the sole57 end use option for scrap tires in those states.
While the Agency recognizes that there will be differences between the various
established tire collection programs, at a minimum, the following components would need to be
included as part of any established tire collection program: (1) a comprehensive system that
prevents tires from being abandoned when the scrap tires are harvested from vehicles and
collected at the various businesses where they are removed; these tires are not considered
"discarded in the first instance" per this rule; and (2) standards for the scrap tires to be managed
as a valuable commodity. These programs should ensure storage does not exceed reasonable
time frames, the scrap tires are managed in a manner consistent with the analogous fuel (coal),
and a system is in place to prevent scrap tires from being discarded (according to the plain
language definition) en route to the combustor (and during any processing prior to combustion).
An example of this type of program is a tire dealership that has prearranged agreements
where the combustor pays for the delivery of the tires harvested from vehicles and can track the
delivery and has contractual obligations for a safe delivery. Another example is the Texas
system where tires are not seen as waste, but have specifications for tracking and safe delivery to
the end use markets.
These programs neither allow an opportunity for tires intended as a fuel to be discarded
in the first place nor discarded while in transit. The definition of an established tire collection
programs is codified in today's rule at §241.2. These tires have not been "disposed of,
abandoned, or thrown away" through the initial process of removing them from cars or collecting
them under established tire collection programs.
It is the combustor's responsibility to confirm that the whole tires are not discarded and
were handled appropriately under the established tire collection program. Notification and
recordkeeping requirements with regard to the use of non-hazardous secondary materials under
CAA 112 and 129 rules, including whole tires managed under established tire collection
programs, are outlined in Section VII.I.
This approach for scrap tires is supported by comments from auto maintenance shops, tire
retailers, and others in the automotive business. These commenters discussed the management
of tires collected from tire and auto-related shops under established tire collection programs.
Typically, the state and private programs work together to encourage the processing, reuse,
and/or recycling, which results in a market demand for scrap tires to be collected, but the use as
56	A few states allow tires cut up in smaller pieces to be landfilled, while fewer states still allow whole tires in
landfills.
57	Note, a commenter has indicated that some states are considering revoking their tire landfill ban if combustors are
no longer choosing to use tires for fuel based on the outcome of this rule.
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fuel is more independently sustainable in the free market.58 In the event the combustor is
disposing via combustion (i.e., not utilizing the energy from combustion), it is a waste.
With the approach described in today's rule, EPA is recognizing that some specific types
of secondary materials are more like valuable commodities than solid wastes, and the act of
transferring them to a third party does not automatically involve discard. As commenters noted,
the mere relinquishing of ownership does not make something a waste.
Furthermore, as EPA notes below, the fact that states may consider tires as wastes under
state programs does not affect EPA's determination in this rule that certain scrap tires are not
wastes for purposes of tire combustion under CAA sections 112 and 129. States may regulate
tires as wastes while EPA, for purposes of the federal regulations, may consider them to be
commodities.
We also recognize that the basis for the final position on scrap tires is different from the
proposal and is more in line with our original position in the ANPRM As we noted many
commenters disagreed with the basis for the position on scrap tires in the proposal, in addition to
stating a preference for the ANPRM position on scrap tires. The overall rationale for the
position in the final rule regarding scrap tires is included in Section VII, entitled "Detailed
Discussion and Rationale for Today's Final Rule."
Comment T3a-B5-21:
A number of commenters stated that the concentration of contaminants that are found in
tire-derived fuel TDF chips (or whole tires) are comparable (or less than) those found in the
traditional fuels that it would be replacing. In the proposed rule, we requested data on the TDF
contaminants that are HAP, as listed in section 112(b) of the CAA and the nine pollutants, as
listed in section 129(a)(4) of the CAA. Some commenters provided independent test results that
correlated to those contaminants and the results showed a trend that the contaminants were
generally comparable to or lower than coal, the replacement fuel, (although individual tests and
comparisons vary). In addition to independent data, some commenters referenced EPA's
Materials Characterization Papers (used to support the proposed rule), and the TDF American
Society for Testing and Materials (ASTM)59 data on chemical constituents and fuel
characteristics. The TDF and coal data were typically reported as elemental analyses.
Specifically, commenters provided the following TDF concentrations for CAA section
112(b) HAP (some are also CAA 129 pollutants):60'61
•	cadmium—less than 5 up to 6 ppm (also on the CAA 129 pollutant list);
•	calcium—3,780 ppm (although listed as "calcium cyanamide" in the HAP list);
58	The recovery and management of tires that are removed from tire piles are largely supported or subsidized by
State Agencies and these whole tires are considered discarded and waste when used as a fuel. This is not the case
for the tires we are calling non-waste that are annually generated and are collected off the vehicles and sent for use
as fuel.
59	ASTM (American Society for Testing and Materials) or ASTM International, is a globally recognized leader in
the development and delivery of international voluntary consensus standards.
60	This is the available data for the elements or the compounds (that are among the nine CAA section 129(a)(4)
pollutants or are on the 187 HAP listed in CAA section 112(b)) that were reported in comments, as well as data from
the scrap tire Materials Characterization Paper referenced by commenters. Since TDF is usually co-fired with coal,
the results can include contaminants that originated from the coal.
61	Refer to the Materials Characterization Papers for traditional fuels in the docket for today's rule.
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•	chlorine—non-detect to 1,490 ppm (also listed in the CAA 129 pollutant list as
"hydrogen chloride");
•	chromium—less than 5 up to 97 ppm62;
•	lead—51-65 ppm (also on the CAA 129 pollutant list);
•	manganese—less than 100 ppm63; and
•	mercury—non-detect up to levels in low-mercury coals (also on the CAA 129
pollutant list).
These contaminant levels, the commenters argue, are at or below documented levels in coals.
Although barium and zinc are not CAA 129 pollutants or HAP, commenters also mentioned that
barium was non-detectable and one commenter mentioned that data available from the USGS
database showed coal can have much higher concentrations of zinc64 than TDF. It was also
reported that the steel wire in tires is 98.5% iron (which is not a HAP). As noted previously,
many commenters argue that the small amount of steel wire in typical TDF is not considered a
contaminant that could result in emissions. Rather, it presents a handling concern when used as
boiler fuel; specifically, the TDF needs to have the exposed wire removed so that it is "flowable"
like coal. One commenter went on to say that they can recycle metals from TDF post-
combustion. A large number of commenters stated that the metal from tires is a necessary
ingredient in the formation of clinker in cement kilns and becomes part of the clinker product,
and is in no way considered a "contaminant" in cement kilns.65
Many of the commenters also reiterated that the constituents in TDF fuel product do not
lead to emission problems as evidence by comparable or lower emissions for the following CAA
129 pollutants according to their tests: carbon monoxide (some higher some lower, but
comparable), dioxins/dibenzofurans (some commenters stated no significant difference, while
others claimed emission reductions), hydrogen chloride (specifically mentioned reduction in
cement kilns), oxides of nitrogen (usually combustors witness the greatest reductions in this
pollutant when using TDF66), and sulfur dioxide (usually reduced when using TDF). Many
commenters thought that we should also take into consideration the reduction in greenhouse
gases and the emissions improvements.67 On the other hand, a number of commenters voiced
concerns about emissions from scrap tires used as fuel, anticipating that they increased emissions
(including those pollutants listed in section 129 of the CAA). A commenter cited that emissions
increases were expected for a paper mill that was testing a substitution of TDF for wood.
Although we requested data on fuel contaminants, some contaminant data was reported
as emission results. Results of a rather large study were reported by a commenter: "In 2008,
PCA member companies completed a study on the impact of TDF firing on cement kiln air
emissions. The study's data set included emission tests from thirty-one of the cement plants
62	If this is present from the steel wire, it is not expected to be released during typical boiler combustion.
63	If this is present from the steel wire, it is not expected to be released during typical boiler combustion.
64	The commenter said the coal sample was 51,000 ppm zinc, while coal is usually less than 100 ppm. TDF usually
has higher concentrations of zinc than the average in coal.
65	See the comment on cement kilns for more information relative to cement kiln usage.
66	Commenters often said this is the biggest benefit in using TDF. State regulators are said to suggest the use of
TDF if a combustor has a problem with NOx emissions.
67	Refer to the Materials Characterization Papers for a detailed summary of the contaminant data for TDF, including
data provided by commenters.
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presently firing TDF. Dioxin-furan emission test results indicated that kilns firing TDF had
emissions approximately one-third of those kilns firing conventional fuels - this difference was
statistically significant. Emissions of particulate matter (PM) from TDF-firing kilns were 35%
less than the levels reported for kilns firing conventional fuels (not statistically significant due to
the low PM emissions reported for essentially all cement plants). Nitrogen oxides, most metals,
and sulfur dioxide emissions from TDF-firing kilns also exhibited lower levels than those from
conventional fuel kilns. The emission values for carbon monoxide and total hydrocarbons were
slightly higher in TDF versus non-TDF firing kilns. However, none of the differences in the
emission data sets between TDF versus non-TDF firing kilns for sulfur dioxide, nitrogen oxides,
total hydrocarbons, carbon monoxide, and metals were statistically significant. Separate studies
conducted by governmental agencies and engineering consulting firms have also indicated that
TDF firing either reduces or does not significantly affect emissions of various contaminants from
cement kilns."
EPA's Response:
The Agency assessed the contaminants in TDF using the data submitted and the proposed
rule data (referenced above) and compared it to the concentrations in coal, the traditional fuel
that scrap tires would be replacing.68 While the level of contaminants in TDF or tires vary
slightly69 between test results for the scrap tires and for the type of fuel that was used for
comparison purposes (i.e., coal, the replacement fuel), this data supports the commenters'
position that the level of contaminants in TDF (or whole tires) are comparable to (if not less
than) those found in the traditional fuel that it would be replacing.70 Coal has a number of
contaminants that are not present in TDF. See the Materials Characterization Papers on
Traditional Fuels and on Scrap Tires in the docket for today's rule for a complete discussion on
contaminants in TDF (EPA-HQ-RCRA-2008-0329).
The metal wire in tires is 98.5 percent iron, but it is a small component of the TDF when
processed. The Agency has determined that the concentration of iron in the processed TDF chips
is comparable to those in coal. However, iron is not a HAP, nor are the other components of the
wire expected to be released to the emissions in a typical boiler. Rather, the wire ends up in the
bottom ash such that, according to one commenter, the metal can be recovered. If the scrap tires
were discarded (i.e., recovered from a tire dump), they would need to be processed into TDF
chips with some removal of the metal wire (per the processing specifications described in a
response to comments below) in order to be a non-waste fuel. Based on the comments, we
recognize that this is more important for handling, than for emissions. We would also note that
the steel wire in the whole tires used in cement kilns is regarded differently since it is needed to
become part of the cement. That is, if the non-combustible ingredient in feedstocks that are
necessary (e.g., iron) for clinker production are no longer used, those materials must be replaced.
Finally, although we focus on the contaminants in fuel since that is the relevant criterion
as it relates to the legitimacy criteria, and for deciding whether a material is a waste or a
commodity, we do recognize the value of the greenhouse gas, as well as other criteria pollutant
68	The "contaminants" are the nine CAA section 129(a)(4) pollutants and the 187 HAP listed in CAA section 112(b).
69	The elemental constituents in coal vary regionally so the test result comparisons to TDF also vary. For example,
the relative percentage of some elements is sometimes slightly higher in some tests and lower in others. Overall, we
find that TDF and coal have a comparable level of contaminants.
70	While zinc has been reported to have higher levels in TDF than in coal, zinc is neither a HAP or one of the nine
pollutants identified in section 129(a)(4) of the CAA and thus, would not be a contaminant for consideration.
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improvements using scrap tires as stated in the proposal and also raised by commenters.
Specifically, 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 emissions reductions. For example, GHG has been reduced as a co-benefit of the
use of secondary materials—the GHG rate associated with the combustion of scrap tires is
approximately 0.09 MTC02E71 per million Btu of scrap tires combusted, while the GHG
emissions rate for coal is approximately 0.094 MTCO2E per million Btu. Combined with the
avoided extraction and processing emissions 0.006 MTCO2 E/million Btu for coal, the total
avoided greenhouse gas is 0.019 MTCO2 E per million Btu. Also, substituting TDF for coal
would avoid an estimated 0.246 Lbs/million Btu of particulate matter associated with the
extraction and processing of the coal.
Relative to criteria pollutants, historical EPA and test program data demonstrate that,
while emission rates vary over different TDF levels at different facilities, criteria pollutant
emissions from combusting TDF have been found a majority of the time to be reduced or not
significantly different than those from other conventional fossil fuels, provided combustion
occurs in a well-designed, well-operated and well-maintained combustion device. In fact, results
from a dedicated tires-to-energy (100% TDF) facility indicate that it is possible to have
emissions much lower than those produced by existing solid-fuel-fired boilers (on a heat input
basis) with a specially designed combustor and add-on controls.72 Typically boilers use a mix of
TDF and coal; they have comparable emissions with or without TDF with the same air pollution
control device. We are not aware any small area sources that are able to use TDF for fuel. (See
the Materials Characterization Papers in the docket for further details on these GHG estimates,
and other estimates of avoided emissions associated with burning tires and other secondary
materials as fuel.)
Finally, we would also note that 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
mining impacts, and reduced negative environmental impacts caused by previous dumping (e.g.,
tires).
Comment T3a-B5-31:
Some industry commenters claimed that the proposed rule would increase the costs for
facilities that use scrap tires as a fuel due to the imposed costs for unnecessary processing, and
would negatively affect them and existing tire recycling programs. According to the many
comments by tire retailers, tires are a material handled as a commodity. Under the third party
processing requirements in the proposed rule, they estimated substantially increased costs to
remove the tires they handle from their shops. This would also have the effect of causing the
tires to be seen as "waste-like" since their monetary value would be reduced.
EPA's Response:
As a result of the changes made to the final rule concerning scrap tires that are collected
as part of an established tire collection program, we anticipate that there will be no or minimal
71	Metric tons of carbon dioxide equivalent (MTC02E)
72	See, for example, Reisman JI (1997) Air Emissions from Scrap Tire Combustion, Appendix: Emissions Data from Controlled
Tire Burning. Technical Report prepared for USEPA. Office of Research and Development, Washington, DC EPA 1997 at
httv://www.eva.gov/ttn/catc/dirl/tire eng.vdf
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changes, to the current system that prevents scrap tires from being discarded. Thus, the costs for
the tire retailers are not expected to increase, as anticipated by the commenters.
Comment T3a-B5-41:
A number of state environmental agencies recommended that scrap tires not be
considered a solid waste when combusted, because of potential impacts on their state programs.
These state environmental agencies, however, typically preferred EPA to consider scrap tires a
waste at least until it arrives at the combustion unit (or otherwise reasonably processed into a
product according to some State Agency commenters). Many of these states noted the beneficial
aspects of using whole scrap tires as a fuel and were concerned with the negative impacts and
possible interference to the success of their beneficial use programs (typically for non-
combustion determinations) and requested clarification on the scope and impact of this rule for
all non-hazardous secondary materials, including scrap tires. For instance, they asked if the rule
would affect or interfere with state solid waste regulations, laws, and beneficial use programs.
They also requested that EPA clarify the implications to a state program if the scrap tires are
considered non-waste when used as fuel for federal purposes, but are considered waste according
to the state recycling and waste management programs (until beneficially used or made into a
non-waste product).
EPA's Response:
As discussed, the Agency has decided to identify scrap tires that are removed from
vehicles and collected as part of an established tire collection program as a non-waste fuel when
combusted. Thus, we believe that the concerns or impacts on the effective collection and use as
a tire-derived fuel product should no longer be a concern. However, this approach would not
address the request from state agencies that we identify scrap tires as a waste until combusted.
As discussed previously, existing RCRA case law on hazardous wastes would not allow EPA to
declare that a discarded material ceases to be a waste solely by the fact that it is beneficially
used. Wastes may be used beneficially. Accordingly, once a non-hazardous secondary material
(such as scrap tires retrieved from waste tire piles) is identified as a waste, its arrival at a facility
for combustion would not change its status. EPA has also expressed the belief that case law
would not prevent wastes from being processed into materials that are no longer wastes.
However, that would require changing the material sufficiently so that a new fuel product is
created.
In response to the states question concerning conflicting and concurrent interpretations of
state and federal waste status (when used as fuel), EPA would like to clarify that non-hazardous
secondary materials may be simultaneously regulated as a non-waste fuel or ingredient for use in
combustion units under the federal program, but as a solid waste by the state's solid waste
programs. That is, non-hazardous secondary materials that are designated as a non-waste by
today's rule, while not subject to the section 129 CAA standards, could be subject to the state
standards that identify the same non-hazardous secondary material as a solid waste. The federal
rule does not affect the state waste determination in this case. For more information about state
agency concerns with regulating non-hazardous secondary materials, not just scrap tires, refer to
Section IX. A, "Applicability of State Solid Waste Definitions and Beneficial Use
Determinations."
Finally, we would note, and as stated elsewhere in this preamble, this rule only addresses
those non-hazardous secondary materials that are burned in combustion units as a fuel or
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ingredient. Thus, we are not making any determination that non-hazardous secondary materials
are or are not solid wastes for other possible beneficial uses. Such beneficial use determinations
are generally made by the states for these other beneficial uses, and EPA will continue to look to
the states in making such determinations.
Comment T3a-B5-51:
One commenter stated that "[bjurning in incinerators, kilns, boilers, etc. is not the highest
best use of scrap tires," and that with proper processing, they can be used in many value-added
recycling processes. Many other commenters were opposed to the combustion of any non-
hazardous secondary materials as a fuel, including scrap tires in CAA section 112 regulated
units, and support the recycling or reuse of scrap tires for other uses instead of combustion.
EPA's Response:
The issue that EPA is addressing in this rule is whether the burning of non-hazardous
secondary materials, including scrap tires (whether whole or as TDF) is considered waste
management. This is critical since the status of scrap tires—that is, whether they are a waste or
not, determines which CAA emission standards the non-hazardous secondary material would be
subject to. With that said, EPA supports the broad use of scrap tires in many different markets
(e.g., recycled rubber products, use in asphalt, and in civil engineering projects). The Agency
also believes that the use of scrap tires as a fuel is a valuable use and should remain a component
in the overall suite of recycling/management options provided the combustion units are subject
to appropriate standards. In some cases, other recycling markets may not be available if TDF
was not used a fuel. For example, in the standard process of shredding tires for tire-derived fuel
(TDF), finer pieces are created as a by-product appropriate for recycled rubber products. In most
cases, it would be too expensive to process the scrap tires solely for the recycling of this rubber
(according to sources in the scrap tire program). Comments on the ANPRM and the proposal led
us to believe that the non-combustion markets for scrap tires could not handle the surplus and
will reverse the trend in cleaning up tire dumps and will lead to many tires being disposed of in
scrap tire piles.
Specifically, in 2007, 89.3% percent of the scrap tires generated in the U.S. by weight
were collected and consumed in end-use markets. The total volume of scrap tires consumed in
these end use markets reached approximately 4,105.8 thousand tons of tires out of an estimated
4,595.7 thousand tons of tires generated in the U.S. By comparison, in 1990, only eleven percent
of the scrap tires were consumed on a per tire basis.73 Of the scrap tires that are collected
annually and used in beneficial use end markets, about half are used for their fuel value, while
the remainder are used in value-added recycling processes as the commenter preferred. We
recognize that regionally, there are sometimes scrap tire shortages in an area that could support
more non-combustion uses (as compared to the market demand for scrap tire usages). That is,
some states are net importers and have very healthy markets using scrap tires as commodities,
while other states do not have as much demand for scrap tires. The EPA supported scrap tire
program is described on our website
(http://www.epa.gov/osw/conserve/materials/tires/index.htm).
Comment T3a-B5-61:
73 These tire figures are compiled by RMA and are developed jointly with state scrap tire programs and listed in
"U.S. Scrap Tire Markets 2007." The report can be found at http://www.rma.org/scrap tires/.
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EPA describes coal and petroleum coke as traditional fuel. Based on the extensive use
developed over the last 20-30 years in the industry, many of the alternative fuels, such as TDF
can also be considered traditional. A number of commenters cited that scrap tires have been
used as a fuel for a long time (since the late 70's) which should qualify as "historical use" and
should be regarded as a traditional fuel. The cement industry's goals have emphasized use of
alternate fuels and raw materials based on the industry increasing its reliance on this type of
material since the 1980s. The use of TDF is a long-standing and customary practice now
characteristic of cement manufacturing fuel options. In fact, commenters have argued that the
number of major industrial boilers and cement plants utilizing TDF as a supplemental fuel has
risen dramatically over the last 19 years and decreased the dependence on virgin fuel sources.
Other commenters mentioned that the components of tires are derived from hydrocarbons
(like fossil fuels, such as coal, oil, and natural gas) and natural "biogenic" sources (the rubber),
and therefore, they should be considered a traditional fuel. Still other commenters mentioned
that TDF should be considered a traditional fuel since it should qualify for the same reasons as
on-spec used oil. Finally other commenters argued that scrap tires should be considered a
traditional fuel based on the comparable contaminant content and superior Btu value (at 12,000
Btu/lb to 16,000 Btu/lb), as compared to coal.
EPA's Response:
We do not agree with the commenters that scrap tires should be considered an historically
managed traditional fuel or alternative fuel. In fact, until this rulemaking, we are not aware that
anyone has considered or identified scrap tires as a traditional fuel. While we recognize that
scrap tires may have been used as a fuel since the 1970's, we would also note that tires are not
produced for their fuel value, even though the components of tires are derived from
hydrocarbons and natural biogenic source. Further, scrap tires are not derived from virgin
material fuels (e.g., as is the case of coal refuse derived from virgin coal).
Comment T3a-B5-71:
Some commenters regarded the combustion of non-hazardous secondary materials,
including scrap tires, as waste disposal and therefore the combustion unit that burns these
secondary materials should be regulated as an incinerator. Another commenter was concerned
with a combustor accepting fees to accept non-hazardous secondary materials and argued that
waste-burning boilers can receive a pass-through portion of tipping fees and can also collect fees
"to dispose of' the material through combustion at "clean energy" projects. The commenter
went on to say that the fuel at these facilities is in no way sold in the marketplace the way that
traditional fuels are sold for profit. In fact, the economic model is reversed, so that the
combustion facility is paid to take the secondary material.
EPA's Response:
The question of whether or not a non-hazardous secondary material, including scrap tires
is or is not a solid waste, depends on whether it has been discarded, and whether it could
legitimately be considered a fuel-like material, by meeting the legitimacy criteria. As we have
discussed elsewhere in this preamble, we have determined that scrap tires, when collected as part
of an established tire collection program and sent to a combustion unit for use as a fuel, or when
sufficiently processed to produce a tire-derived fuel, have not been discarded and are not solid
wastes. These secondary materials are more akin to non-waste fuels in these instances. Thus,
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we disagree with the commenters who argue that the combustion of non-hazardous secondary
materials, including scrap tires, always constitutes waste management.
On the other hand, where scrap tires or any other non-hazardous secondary materials are
disposed of (part of the plain meaning of discard) via combustion, they are a waste. For
example, if a combustion unit's main purpose is to provide heat to dry a product, but they
consistently have a surplus of tires received with a tipping fee and operate the unit without a
product being dried, they are in effect destroying the scrap tires. In this case, they would be
considered solid wastes, and the combustion unit would be subject to the CAA 129 standards.
With respect to the situation where a facility accepts scrap tires for a tipping fee (as opposed to
paying for the fuel), that can be an indicator that disposal may be occurring, but is not
determinative to indicate that such transactions always constitute waste management. For
example, the tipping fees could encourage over-accumulation leading to combustion for disposal
versus being used as a valuable replacement fuel. Thus, this factor should be considered, in light
of the other circumstances, in determining whether or not scrap tires when combusted as a fuel
are or are not a solid waste.
Comment T3a-B5-81:
A commenter described the associated environmental justice impacts that would occur at
sites that would receive scrap tires if the proposed rule went into effect, as compared to the
current environmental justice impacts associated with cement kiln sites. The commenter
provided an analysis that they said showed a decreased chance of impacting environmental
justice communities based on the demographic analysis at cement kilns versus the alternative
sites. The commenter claimed that the processing described in the proposed rule would
effectively prohibit them from using scrap tires as a fuel and will result in more scrap tires being
disposed of or unnecessarily processed at sites that are more likely to be in environmental justice
communities, as EPA's environmental justice analysis indicates.
The commenters' analyses indicated that cement kilns tend to be located in areas with
fewer minorities than the national average, as well as fewer minorities as compared to the larger
set of sites that use non-hazardous secondary materials that may become CISWI facilities, tire
processors, and RCRA subtitle D facilities (as EPA assessed in the "Review of Environmental
Justice Impacts"74). The commenter stated that "EPA's data shows vividly that there are no
Environmental Justice issues at any of the cement plants in its CISWI database." The
commenter also argued that land disposal (or processing) sites already have environmental
justice issues and that the proposed rule would make it worse by having more scrap tires diverted
to waste tire piles or processors. Another commenter indicated that states are considering
removing landfill bans on whole tires if this rule goes into effect, and argued that the proposed
rule would cause an increase in the number of tires going to landfills or stockpiles and would
have a disparate impact on adjacent communities and mentioned the risks of fires and mosquito
born vectors at tire piles.
EPA's Response:
74 EPA's "Review of Environmental Justice Impacts" that the commenter referenced, can be found in the docket for
today's rule (EPA-HQ-RCRA-2008-0329-0519). Cement kilns and other combustors that use non-hazardous
secondary materials were included in the CISWI database used for EPA's demographics (many of the units in the
CISWI database were not regulated as incinerators).
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In the evaluation regarding the use of whole scrap tires (predominantly used as a fuel in
cement kilns) and whether or not they should be considered solid wastes if collected as part of an
established tire collection program, we considered the environmental justice demographics and
impacts that would result at cement kilns. Based on our review of the demographics at cement
kilns, on average, they are located in areas with fewer minorities and less poverty than RCRA
subtitle D disposal sites, processing sites, and facilities assessed to become CISWI CAA section
129 incinerators.
Whole scrap tires can be used as a non-waste fuel in cement kilns under today's rule
when they were harvested from vehicles and managed under the oversight of an established tire
collection program prior to being delivered to the combustion unit. Based on our most recent
demographic data, we agree with the commenter that sending whole tires to cement kilns as a
non-waste fuel is not expected to have a negative impact on environmental justice communities.
In fact, it appears that it would have benefits since RCRA subtitle D disposal sites, processing
sites, and facilities assessed to become CISWI CAA 129 incinerators (the sites that would be
accepting scrap tires if not burned as a fuel in cement kilns) are more likely to be located in
environmental justice communities. Thus, while this was not the primary basis on which this
decision was made, the Agency believes it important that its decision would lessen the impacts
on environmental justice communities.
Comment T3a-B5-91:
EPA never explains why it believes that, in the context of a secondary material that does
not need processing or perhaps needs only minimal processing to serve as a wholly bona fide
fuel, that scrap tires cannot be considered sufficiently "processed" unless they are physically
shredded and undergo metals removal processing. We note that whole tires that have long been
buried or stacked in aging piles may need 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 whatever. EPA never explains why it thinks this much processing is
necessary for tires to escape the "discard" rubric and serve as bona fide fuels in portland cement
kilns. The result of this faulty logic is that beneficial reuse of significant amounts of non-
hazardous secondary materials will be greatly discouraged, and there will be no health or
environmental benefits (only detriments). We believe it is obvious that EPA's proposal
represents a "classic case of arbitrary and capricious rulemaking."
The portland cement industry simply cannot afford to jeopardize its product by using
alternate fuels that affect cement quality. EPA justifiably had a concern (reflected in the earlier
RCRA subtitle C rulemaking and policy documents it cites) that unscrupulous parties seeking to
avoid the expensive subtitle C cradle-to-grave regime had incentives to claim that the hazardous
waste they were burning was a bona fide fuel. At that stage in RCRA subtitle C development
(mid 1980s), burning of hazardous materials for bona fide energy recovery purposes was exempt.
This concern simply does not apply to the situation in which non-hazardous secondary materials
are being burned in fully regulated industrial furnaces such as portland cement kilns.
Ironically, EPA has long recognized that products from portland cement kilns burning
hazardous waste fuel are not adversely affected in any manner. In 1995, after reviewing
exhaustive data presented in a petition filed under the Toxic Substances Control Act (TSCA),
EPA rejected the petitioners' request that products produced from cement kilns that burn
hazardous waste fuel carry warning labels because EPA found there was no difference in
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contaminant levels (or risks) in the product. 60 FR 39169 et seq., August 1, 1995. As recently
as 2007, EPA's Assistant Administrator for Solid Waste and Emergency Response (OSWER)
stated in a letter to the Center for Maximum Potential Building Systems that "there is no
difference in the cement from kilns burning hazardous waste compared to cement produced by
kilns not burning hazardous waste."
Moreover, NSF International has reviewed data from several portland cement kilns
burning hazardous waste fuel to assess whether the product from such kilns could be safely used
in concrete water pipes and water storage tanks. These studies have uniformly concluded that
there is no statistical difference in contaminants between clinker or products made from kilns
burning hazardous waste fuel as compared to kilns using only fossil fuels.
The commenters representing cement kilns also noted that a cement kiln is not a boiler or
an incinerator. One of the commenters went on to say that "in enacting CAA section 129,
Congress was focused exclusively on "incinerators." Incinerators burn waste materials solely for
the purposes of destruction. They do not use "ingredients," and they make no product.
Moreover, in all the rulemaking and litigation that prompted this proposed rule - culminating in
the NRDC case ... EPA, the parties, and the Court were focused exclusively on incinerators and
boilers. Like incinerators, boilers do not use "ingredients." Unlike incinerators, boilers may
burn waste materials for energy recovery purposes. But the only product they make is steam,
and the steam that they make never comes in contact with the fuel they burn.
A portland cement kiln is significantly different from an incinerator or a boiler in key
respects. First, it is one type of "industrial furnace" which, unlike boilers and incinerators, which
makes a marketable product. All materials that are placed in the kiln - including fuels - come
into mutual contact in the manufacturing process. The product the kilns produce must meet strict
quality standards. EPA's RCRA regulations have long recognized these key distinctions among
industrial furnaces, boilers, and incinerators. The commenter referred to 40 CFR 260.10.
Despite the fact that there was absolutely no issue with portland cement kilns producing
ingredients in the development of CAA section 129 or the rulemaking and litigation leading to
this rulemaking, the commenter stated that portland cement kilns have been included in this
proposal in a manner that could have very adverse impacts on a kilns' ability to use non-
hazardous materials beneficially; the commenter went on to argue that a significant flaw in the
proposal is its failure to recognize the key differences between portland cement kilns as
compared to incinerators and boilers.
EPA's Response:
These comments may express legitimate policy concerns. However, they are essentially
irrelevant to the decisions that EPA is making in this rulemaking. Tires from tire dumps are
clearly wastes because they have been disposed for a long time. The tires were clearly
abandoned if they were left in a tire dump. EPA understands the commenter's remarks that
cement kilns are not "boilers" nor were designed to be "incinerators," but cement kilns are
clearly "combustors" under the CAA and the Agency needs to decide whether CAA section 112
or 129 standards would apply.
With respect to the comments regarding "processing," EPA's intention is to provide a
standard for turning clearly discarded material into a non-waste. EPA acknowledges that there is
no direct case on point in which a court has opined on how a material may lose its status as a
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waste.75 The comment assumes all fuel is not a waste. As EPA has repeatedly stated in this
preamble, a waste may be used beneficially and may, indeed, be a bona fide fuel. This is
consistent with the D.C. Circuit's opinion in NRDC v. EPA. A combustor that burns solid
waste, even for energy recovery, must be regulated under CAA 129. If the kiln is regulated
under CAA 129, no processing is needed for a waste scrap tire to be burned as a bona fide fuel.
Given the statutory provisions and case law, EPA is constrained to argue that discarded
materials are solid wastes and would need to be burned under CAA section 129 standards. EPA
notes that environmental groups would argue that all units combusting tires must be subject to
emissions standards issued under section 129 of the CAA even if the tires have been processed
into a separate TDF, and the comments include policy arguments to support this contention. The
point of the comment is that requiring units to meet emissions standards issued under section 129
of the CAA would discourage burning of tires as an environmentally beneficial replacement for
non-renewable fuels, yet environmental groups would argue that scrap tires should nevertheless
be subject to such standards. EPA's focus, however, must be on the definition of solid waste
under RCRA and the comment gives the Agency no basis to determine what kind of activity
would make the waste a non-waste. Whether the material is a bona fide fuel does not provide the
answer to that inquiry.
EPA sees no reason based on these comments to eliminate the processing requirement for
this final rule.
Comment r3a-B5-101:
The commenters that addressed the specific level of processing for whole scrap tires
disagreed with EPA on the amount of processing required before TDF should be considered a
non-waste fuel. In addition, many of the commenters had different interpretations of our
proposed wire removal requirements and on the term "relatively wire free" (since some
incorrectly believed that the proposed standard was up to 99% or absolutely no wire).
Furthermore, many of these same commenters argued that the proposed processing requirements
for units that use TDF chips were unrealistic and would dramatically increase processing costs,
while a few commenters cited that many processors could not even achieve the specified level of
wire removal. These changes would significantly deter facilities from using TDF that they
regarded as a product. In fact, a number of commenters, including some state agencies,
questioned the value of requiring unnecessarily costly processing of whole scrap tires that are to
be used as a fuel in units, such as cement kilns, since the wire in the scrap tires can be beneficial
due to the properties of the iron oxide resulting from the tire combustion in cement kilns. Other
commenters noted that the presence of steel in the whole scrap tires or TDF should be irrelevant
to their waste status since the wire removed is for improvement in handling—that is, the TDF
needs to have the exposed wire removed so that it is "flowable" like coal within the combustion
unit, as well as any loose wire removed since it can also cause handling issues in the units, not
emissions.
A few commenters claimed that TDF processed to two-inch pieces was seen as the higher
end TDF product and that this should be our standard. In particular, one commenter that markets
TDF as a product, "request that the EPA use the widely accepted nominal two-inch minus, 90%+
wire free standard that has been standard in the industry for years" since this would accurately
75 Although we recognize that some states have systems in place where materials lose the waste status if
beneficially used according to the state's standards.
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define a product. The commenter said that "TDF meeting this 90%+ wire free standard typically
has a wire content of between 2% and 8% by weight." In addition, some state agencies have
been known to specify two-inch TDF as a product rather than a waste, while rough shreds used
for fuel in some combustors (bigger than two inches) are seen as a waste material (not a product)
by those states. The size restriction is more prevalent in specification for TDF than specifying a
percentage of metal.
Other commenters argued that a product is created when tires are processed at any level
that makes it "TDF" and mentioned that the ASTM describes a process that creates a "product"
called TDF. Another commenter mentioned that a necessary component in the processing of
shredded tires is to remove the protruding wire from the shreds and to sort the rubber pieces from
the wire remnants called "free wire." The commenter said that this part of processing is typically
necessary in order for it to be sold as a TDF product to boilers. The commenter went on to say
that the completion of this last step can be tested by spreading out the TDF chips in a single layer
and passing a very strong magnet over them to see if any free wire remains. That commenter
reasoned that TDF chips that pass the magnet test and had the free wire removed should qualify
as a non-waste TDF product.
EPA's Response:
In the situation where tires are discarded in the first place or otherwise do not meet the
legitimacy criteria, processing is needed before it is considered a non-waste fuel (i.e., tires that
are not collected from vehicles as part of an established tire collection program per
§241.3(b)(2)(i)). We disagree with those commenters who addressed the level of processing
needed before TDF is considered a non-waste as these commenters are answering a different
question: how much processing is necessary before whole scrap tires can be burned properly in
any particular combustion unit?
However, the question that EPA needs to answer is how much processing is sufficient
before whole scrap tires are considered a non-waste fuel where the scrap tires are not collected as
part of a scrap tire collection program? Examples of sufficient processing for other non-
hazardous secondary materials include the processing of used oil to produce on-specification
used oil and the processing of construction and demolition (C&D) wood into a fuel by sorting to
remove contaminants (e.g., lead-painted wood, treated wood, non-wood materials), and sizing it.
In all these instances, the non-hazardous secondary material is being sufficiently changed, either
chemically or physically to produce a non-waste product.
Thus, while insufficiently processed discarded tires can be burned in boilers as a fuel,
such TDF would still be considered a waste-derived product because the Agency does not
believe that simply shredding or quartering whole tires, or removing some dirt, is adequate to
produce a non-waste product for use as fuel according to today's rule (refer to the processing
definition in §241.2 Definitions). While the extent of processing that may be required may vary
for different types of non-hazardous secondary materials, the Agency contends that a sufficient
amount of processing must occur to produce a non-waste product from secondary materials.
One commenter mentioned, boiler operators are able to recycle the metal from the wire
post-combustion (although minimal). This is after it has been cleaned of the rubber particles via
the combustion process, so this iron can be recovered and recycled (not disposed in emissions).
However, whether or not the metal from the wire (post-combustion) can be recycled does not go
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to the question of whether or not the non-hazardous secondary material has been "sufficiently
processed" to produce a non-waste product.
With respect to the technical question of how much wire must be removed before the
amount of processing is considered sufficient, the specific unit types that use TDF chips require
different levels of metal removal for handling concerns as noted by commenters. The ASTM
Standard D 6700 "Standard Practice for use of Scrap Tire-derived Fuel"76 describes the process
for "dewired" and has a helpful guideline on the appropriate amount of wire removal for
different unit types under the topic titled "Handling Considerations Conveying, Grate and Ash."
However, the ASTM standard is concerned with proper dewiring and not whether the resultant
material is a waste or non-waste fuel.
In the proposed rule, EPA referred to the level of processing in varied terms ("relatively
wire free," "processed to the Standard Practice for Use of Scrap Tire-Derived Fuel ASTM
Standard D 6700-01," "wire removed," "steel belts removed," and "sufficiently processed").
While ASTM was not deciding whether this material would be a waste, or not, EPA in the
proposal was suggesting that such material would be sufficiently processed to render the new
material a commodity fuel. Thus, to be considered sufficiently processed, there has to be metal
removed and, it should be at the level of wire removal that is specific to the combustion unit as
mentioned above. EPA agrees with the commenter who stated that TDF that has been
chipped/shredded, sorted and dewired (or at least 90%+ wire free) would be considered
sufficiently processed. However, this may not be the only standard, to the extent that other unit
types require different levels of metal removal.
With respect to the commenter that suggested the removal of free wire as an indicator of
sufficient processing, we would agree that the removal of free wire (as described by the
commenter) is a necessary component of processing scrap tires into a non-waste product for the
purposes of this rule, but that alone, may not be sufficient to meet our definition of processing. It
could qualify if, according to product specifications appropriate for the particular combustion
unit, it is processed into TDF chips and enough wire is removed from the TDF and the loose free
wire is removed (to the degree practical) appropriate to the unit.
However, we would also note, as is the case for all types of solid fuel, proper
characterization of the size and composition of TDF are important factors that combustion unit
operators assess to determine if the TDF is a suitable fuel for their specific combustion unit
design.77 For example, ASTM Standard D 6700, describes standard practices for using TDF as
fuels, and also specifies sampling and analysis methods and procedures that apply to TDF that
cover composition and fuel characterization analyses. The standards also address the size of the
tire pieces and metal content in order to optimize combustion. The ASTM Standard D 6700
"Standard Practice for use of Scrap Tire-derived Fuel" also describes the process for "dewired"
TDF and has a helpful guideline on the appropriate amount of wire removal for different unit
types under the topic titled "Handling Considerations Conveying, Grate and Ash." In summary,
76	ASTM Standard D6700-01, 2006, "Standard Practice for Use of Scrap Tire-Derived Fuel," ASTM International,
West Conshohocken, PA, 2003, DOI: 10.1520/C0033-03, www.astm.org.
This standard can be obtained through the following website http://www.astm.org/Standards/D6700.htm.
77	With regard to the legitimacy criteria discussed in Section V.D, the heating value of scrap tires (12,000 Btu/lb to
16,000 Btu/lb) is the highest of all non-hazardous secondary materials, except used oil (17,800 Btu/lb), and higher
than typical coal values. Contaminants of potential concern have been measured for both materials: the constituents
are comparable.
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EPA considers that previously discarded tires that have been made into TDF (shredded/chipped,
sized, sorted, and with a significant portion of the metal belts or wire removed, at a level
appropriate for the unit), meets the definition of "sufficient processing."
Finally, as discussed above, the final rule also allows for scrap tires that have been
harvested from vehicles (as part of an established tire collection program) to be used as a non-
waste fuel. The question of processing into TDF or the "extent of processing" is only relevant if
they are using scrap tires that have first been discarded.78 Scrap tire processors typically enter
into contracts with the end users of these products that specify that the processed tires meet
certain specifications (i.e., size of chips and possibly other considerations) to ensure that the
product that is produced consistently meets the needs of that particular end use. Boilers, unlike
cement kilns,79 benefit from TDF that has been processed into small chips that feed in the
combustion unit like coal and the reduction of metal to improve its handling and operational
qualities in the combustion unit. For instance, the removal of the exposed wire around the
perimeter of the tire chips makes it "flowable" like coal in the combustion unit.
EPA notes that merely harvesting tires from vehicles does not render the material a non-
waste. If the tires are used in a combustor for which they are not suitable, which can be
determined through the analysis of the legitimacy criteria, they would be wastes.
6. Resinated Wood Residuals.
The proposed rule described resinated wood products as those generated during the
manufacture of particleboard, medium density fiberboard, and hardboard and includes materials,
such as board trim, sander dust, and panel trim. The proposal indicated that such resinated wood
products were considered a non-waste fuel when burned in a combustion unit because this
secondary material generally meets the legitimacy criteria. We acknowledged, however, that we
had limited data on the level of contaminants in resinated wood products, but the data we had did
generally indicate that this non-hazardous secondary material would meet the legitimacy
criterion for contaminants. In order to gather additional information on which to base our
decision, we requested comment and data on the contaminant levels contained in these secondary
materials, as well as the appropriateness of calling them a non-waste.
Comment r3a-B6-11:
The American Mining Congress v. EPA case states that secondary materials beneficially
used within the generating industry, not within the generating plant, is part of a continuous
industrial process and thus, not a solid waste. Therefore, transfer of materials within the
generating industry would have to be considered a non-waste fuel.
Some commenters contend, however, that any secondary material burned for energy
recovery is a solid waste, regardless of whether it remains within the control of the generator.
These commenters object to allowing control by the generator to be relevant to rendering
secondary material a non-waste, even if burned under the legitimacy criteria, claiming that these
78	Since scrap tires that are harvested from vehicles (as part of an established tire collection program) can be burned
as whole tires and still be considered a non-waste fuel, the Agency does not believe it appropriate to require such
tires to meet the level of processing (as codified in §241.2). However, other scrap tires, e.g., those that are removed
from tire piles would need to be processed (as codified in §241.2) in order to be burned as a non-waste fuel.
79	We note that most cement kilns use whole tires as fuels, as opposed to TDF chips, because their process does not
require the TDF to be in the form of small chips to use it as a fuel, and does not require removal of the metal (since
they use the metal as an ingredient).
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secondary materials are wastes. The commenter goes on to note that EPA itself 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.
EPA's Response:
EPA needs to correct some of the industry and environmental group misrepresentations
of the cases on the definition of solid waste. In AMC /, the court was only noting that secondary
materials reclaimed within a continuous process are not wastes and are not subject to EPA's
jurisdiction as solid wastes. The case is actually a narrow discussion of one basic principle
regarding what is not discarded. The court does not even state whether any particular material is
discarded. For example, while there is a reference to used oil that could be discarded, the court
in no sense was saying that all used oil is discarded. In fact, in APIII the court specifically noted
that in AMC I they "did not address the discard status of any of the particular materials discussed
in the briefs." 216 F.3d at 56. The court freely admitted in APIII that its "prior cases have not
had to draw a line for deciding when discard has occurred," but only dealt with the extreme cases
of materials that were either wastes or non-wastes. 216 F.3d at 57.
As the various definition of solid waste cases hold, the ultimate issue for deciding when
most materials are discarded is whether EPA's determination complies with the arbitrary and
capricious standard of the Administrative Procedure Act (APA). Sweeping formulations
involving whether a process is within an "industry" is not helpful, nor is it consistent with the
case law. EPA, and the courts, reject any formulation that under AMC I the statement that
discard cannot be found in the case of immediate recycling within a continuous industrial process
means ipso facto that any material transferred within an "industry," even between companies
located in New York and California, is not a waste. EPA's decision on whether resinated wood
is a waste (within the control of the generator or if transferred) is based on the circumstances
under which the material is handled and combusted. Merely keeping material on-site will not
render it a non-waste, nor will mere transfer make the material a waste.
Comment T3a-B6-21:
Trim, sawdust, shavings, sander dust and other residual materials from producing panels
and other engineered wood products containing resins have been widely used as fuels by wood
product plants since the industry began in the 1950s and should, therefore, be classified as a
traditional fuel. In fact, the wood product plants have been designed so as to specifically utilize
these residuals that the process creates and would not be able to operate as designed without this
material. The commenters argue that there are no significant contaminants in resinated wood
residuals that are used as fuels. None of the constituents are among the contaminants controlled
under CISWI. This fact provides sufficient justification to accept resinated fuels as traditional
fuels from the standpoint of contaminants.
EPA's Response:
We do not agree with those commenters who argue that resinated wood residuals should
be considered a traditional fuel, since it can have contaminants at levels greater than traditional
fuels (as discussed below). We recognize, however, that much of the resinated wood residuals
are used as a product fuel, and that the plants have been designed to catch and then burn these
residuals to supply energy and heat to other parts of the plant. EPA recognizes that some
specific types of non-hazardous secondary materials, such as resinated wood residuals, are more
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like valuable commodities than solid wastes. Resinated wood is a secondary material that, upon
examination, is not discarded when used on-site or transferred off-site to a different company.
Thus, EPA would consider resinated wood residuals used as a fuel in a combustion unit as not
being a solid waste, provided these materials satisfy the specified legitimacy criteria for fuels.
Comment T3a-B6-31:
Commenters argued that resinated wood residuals are often used off-site in a manner that
does not constitute discard and the secondary materials should not be classified as solid waste
when transferred between facilities or companies. As much as 6% of resinated wood residuals
are sold into the fuel market and 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. Inter-
company transfers are typically managed through buy-sell contracts that likely do not specify
how the materials will be used because the receiving facility likely mixes the purchased material
with self-generated materials. Those combined materials are either used as furnish or fuel in
accordance with the needs of the facility at the time. Because these resinated materials are
bought and sold and used in a manner - either as furnish or fuel - similar to how self-generated
resinated materials are used, this transaction does not constitute discard and the materials should
not be classified as solid waste simply due to the transfer between facilities or between
companies.
EPA's Response:
We agree that transferring secondary materials between companies or facilities does not
necessarily mean that the material has been discarded. As resinated wood residuals transferred
off-site are utilized in the same manner as self-generated resinated wood residuals (i.e., contained
in the same bins as furnish materials used in the product, transferred via conveyors or ducts),
which the plants are specifically designed to burn as a fuel, we agree that this does not constitute
discard. Thus, we have determined that resinated wood residuals are not solid waste when
transferred off-site for use as fuel, provided the material meets the legitimacy criteria and has not
been otherwise deemed to be discarded. We have codified this concept under 40 CFR
241.3 (b)(2)(ii).
Comment T3a-B6-41:
Processing should not be necessary when utilizing the material on-site or off-site to be
considered a non-waste fuel. However, resinated wood residuals are generally chipped or
hogged to reduce its size before burning. This should be sufficient to meet the processing
requirement.
EPA's Response:
We generally agree with the commenters that resinated wood residuals do not need to be
processed, but if processed, such as by chipping or hogging, this level of processing would not
affect the status of this material.
Comment T3a-B6-51:
Resinated wood residuals have contaminants that are comparable to traditional fuels. The
list of resins and adhesives include constituent chemicals that are on the hazardous air pollutant
list. Notably, phenol, formaldehyde, methylene di-isocyanate and epichlorohydrine are HAP.
However, these individual components react completely within the resin curing process, leaving,
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in the worst case, only trace amounts of the HAP. With the exception of formaldehyde,
undetectable or extremely low levels of these HAP remain behind after the resin/adhesive cure.
As noted in the comments referenced in the proposal, miniscule amounts of formaldehyde
remain in some resinated wood residuals, less than 0.02%, a number that is expected to fall as the
California Air Resource Board (CARB) Composite Wood Airborne Toxic Control Measure
(ATCM) is implemented nationwide, per the new Public Law No: 111-199 (which establishes
consistent standards for wood products across the country). Further, since formaldehyde is
found in natural wood, it should not be considered a contaminant in resinated wood.
EPA's Response:
The proposed rule acknowledged a general lack of data regarding the levels of
formaldehyde in these non-hazardous secondary materials and specifically requested data on this
issue. While we received only limited contaminant information during the comment period, the
data we do have suggests that the levels of formaldehyde in these resinated wood residuals is at
non-detect levels. The existing data we have is that resinated wood residuals contain "free"
formaldehyde at levels less than 0.02 percent (or 200 ppm). In addition, new rules, as mandated
by the CARB Composite Wood ATCM, per new Public Law No. 111-199, will reduce the
formaldehyde levels even further to levels that are comparable to unadulterated wood. We also
have limited data on the formaldehyde levels in traditional fuels. Specifically, we have limited
data that natural wood has between 0.6 and 8.5 ppm of formaldehyde,80 but we have no data on
formaldehyde levels in other traditional fuels, such as coal, oil, and natural gas. We do know,
however, that organic materials produce formaldehyde. For example, studies have shown that
formaldehyde is generated from coal piles.81
Thus, considering the fact that new rules will reduce the amount of formaldehyde to
levels comparable to unadulterated wood, we have concluded that resinated wood residuals when
burned as a fuel by the generator or outside the control of the generator and not discarded should
be considered a non-waste fuel. However, as we have noted elsewhere, the generator of these
secondary materials would still need to demonstrate that such residuals meet the legitimacy
criteria. Thus, they would need to show that the levels of formaldehyde, as well as other possible
contaminants, in the resinated wood residuals are at levels comparable to those found in
traditional fuels, which in this case would be natural wood. We would note that we would not
consider levels of formaldehyde of 200 ppm or slightly less to be comparable since the levels in
unadulterated wood are at least two orders of magnitude lower. The levels would need to be
lower to be considered comparable to those found in natural wood.
Comment T3a-B6-61:
80	Weigl, M., R. Wimmer, E. Sykacek, and M. Steinwender, 2009. "Wood-borne formaldehyde varying with
species, wood grade, and cambial age," Forest Products Journal 59(1/2) 88-92
Meyer, B. and C. Boehme, 1997. "Formaldehyde Emission from Solid Wood," Forest Products Journal 47(5) 45-48.
Killiam, B. "Background Formaldehyde Emissions for Solid Wood," Temple-Inland Forest Products Corporation,
Diboll, TX.
81	Cohen, H. and U. Green, 2009. "Oxidative decomposition of formaldehyde catalyzed by bituminous coal," Energy
Fuels 23(6) 3078 - 3082.
Nehemia, V., S. Davidi, and H. Cohen, 1999. "Emission of hydrogen gas from weathered steam coal piles via
formaldehyde as a precursor: I. Oxidative decomposition of formaldehyde catalyzed by coal - batch reactor studies,"
Fuel, 78(7) 775 - 780.
Nehemia, V., 1997. "Oxidative decomposition of formaldehyde catalyzed by coal," Fuel and Energy Abstracts 38(6)
p. 386.
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The comments indicated that resinated wood residuals have about 5 percent moisture
content, with heating values typically between 8,500 - 9,000 Btu/lb (as fired). This fuel value is
equal to or better than unadulterated wood, which has higher moisture content.
The comments also argue that resinated wood residuals are managed as a commodity as
they are typically pneumatically transferred through ducts, stored temporarily in a fuel silo, and
then utilized in boilers to provide heat to hot presses and dryers. In fact, wood product plants
have been designed so as to specifically utilize these residuals that the process creates and would
not be able to operate as designed without this material.
EPA's Response:
The heating value range presented (8,500 - 9,000 Btu/lb) indicates that resinated wood
residuals meet the meaningful heating value criterion as it is greater than the heating value of
unadulterated wood. We also agree with the commenters that resinated wood residuals meet the
legitimacy criterion for being managed as a valuable commodity since these residuals are
managed as a primary fuel for wood products manufacturers. We acknowledge that wood
products manufacturing plants were specifically designed to burn these resinated wood residuals
to power the facility. In addition, wood product manufacturers have designed their plants to use
their residuals (including placing the material in silos and transferring the material via conveyor
belts and ducts) that supply the process both as a raw material and as a fuel, indicating that the
resinated wood residuals are managed as a valuable commodity.
Comment T3a-B6-71:
Commenters referred to studies that show that the combustion of resinated wood
residuals does not produce adverse air emissions. Specifically, EPA's "Wood Products in the
Waste Stream—Characterization and Combustion Emissions" (1996) describes studies that were
conducted to determine if various types of wood produce more non-criteria air pollutants than
typical wood sources. Air emissions and fuel materials were sampled at six different processors
and boilers. Fuel materials that were used at the boilers were a mixture of wood produced at
construction and demolition sites at the time: unadulterated lumber, treated wood (including
CCA-treated wood), resinated wood residuals, and painted wood (including lead-based paint).
The study concludes that organic compounds that are emitted include aldehydes, benzene,
phenol, and polynuclear aromatic hydrocarbons (PAH). These compounds are formed as
products of incomplete combustion and did not appear to be a function of the woods composition
or source. Instead, they appear to be an indicator of combustion inefficiency. "Good"
combustion conditions appear to minimize organic emissions. Metals usually found in wood
combustor particulate include As, Cr, Cu, Pb, Zn, Al, Ti, Fe, and Mg. Metals were found to be
higher in samples taken, although this could be a result of the inclusion of treated wood in the
samples combusted. Metals control efficiency appears to be roughly equivalent to total
particulate control efficiency. Chlorinated organic compounds, such as dioxins, furans,
polychlorinated biphenyls, chlorinated phenols, and chlor-benzenes were measured at extremely
low concentrations or were reported to be less than minimum detection limits.
One commenter argued that, since resins contain only carbon, hydrogen, oxygen, and
nitrogen, the wood and its adhesives will convert to carbon dioxide, water, and nitrogen oxides
(which would be produced even if nitrogen is not present in the fuel, since nitrogen represents
approximately 80% of air) under normal conditions that normally occur in industrial wood
combustion units. Thus, the products of combustion from wood are the same from the adhesives.
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Adhesives are expected to be more combustible than wood, due to their simpler structure and
lower molecular weights. Conditions which assure the complete combustion of wood are
adequate to assure the complete combustion of these adhesives. Although it is possible that
different types of compounds could be produced from the adhesives than from wood and that
more of certain types of compounds might be produced from one fuel or another, there does not
appear to be any scientific basis for a presumption that emissions from incompletely combusted
adhesives are more harmful than emissions from incompletely combusted wood. In fact, the
results of toxicity studies commissioned by National Forest Products Association in response to
New York State law which requires manufacturers to provide data on the toxicity of smoke from
their products indicate that smoke from glued wood products is no more toxic than wood smoke.
There are a few halogen-containing synthetic polymers, such as polytetrafluorethylene, which
can produce more hazardous fumes, but they are not normally used in wood products.
The commenter also submitted data on HC1 and NOx emissions from burning sander dust
that was not yet published. Emissions from five combustion systems that burned a combination
of sander dust and hog fuel were sampled. One test was run only using hog fuel (which
consisted primarily of bark). Results are presented in Table 3. The commenter argued that these
results prove that HC1 and NOx emissions from the combustion of resinated wood residuals are
comparable to the combustion of hog fuel alone. In fact, the three samples that contained the
lowest percentages of sander dust (0%, 15%, and 25%) produced the greatest percentages of
chloride in the fuel emitted as HC1 and nitrogen in the fuel that was subsequently emitted as
NOx.
Table 3. Emissions data from six combustors that burned hog fuel or a combination of hog fuel
and sander dust.
Sample Number
1
2
3
4
5
6
Fuel mixture, %Hog fuel/Sander
dust
100/0
75/25
85/15
60/40
60/40
60/40
Hog Fuel content
(%, dry basis)
Chloride
0.02
0.01
0.01
0.02
0.02
0.02
Nitrogen
0.58
0.56
0.56
0.51
0.58
0.56
Sulfur
0.02
0.04
0.04
0.04
0.05
0.03
Sander dust content
(%, dry basis)
Chloride
_
0.18
0.18
0.16
0.15
0.15
Nitrogen
_
3.7
3.7
3.2
3.4
3.8
Sulfur
_
0.05
0.05
0.06
0.04
0.03
Total Fuel Content
(lb/hr)
Chloride
1.7
3.3
2.1
6.0
6.4
5.6
Nitrogen
49
84
60
136
151
143
Emissions
(lb/hr)
HC1
0.17
0.19
0.08
0.09
0.11
0.16
NOx
26
53
31
45
48
53
Emissions
(lb/MMBtu)
HC1
0.0024
0.0038
0.0017
0.0012
0.0015
0.0023
NOx
0.38
1.08
0.69
0.62
0.64
0.75
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% of CI in Fuel Emitted as HC1
9.6%
5.5%
3.5%
1.4%
1.7%
2.8%
% of N in Fuel Emitted as NOx
16.1%
19.3%
15.7%
10.1%
9.7%
11.2%
EPA's Response:
We recognize that the studies have shown that there are decreased HAP emissions from
burning resinated wood residuals. As we have stated previously, however, the criterion or test in
determining the legitimacy criterion is based on the level of contaminants in the secondary
material itself, and not by comparing the differences in emissions. We believe that in order for a
non-hazardous secondary material to be considered a non-waste fuel, it must be similar in
composition, whereas comparing the emissions profiles between combustion units that burn
traditional fuels and non-hazardous secondary materials only tells one how well the combustion
unit is operating, not what the material is that is being burned. Thus, while the Agency
recognizes that such emissions data can be useful in determining whether or not burning such
material presents a risk to human health or the environment, we believe it says nothing in terms
of whether or not the non-hazardous secondary material is a legitimate non-waste fuel (see also
Section V.D.3 discussion on legitimacy criteria).
In response to some of the specific comments made, we would note that none of the
studies or data provided information on formaldehyde emissions, the HAP that we identified that
we were most concerned with in the proposal.82 While the EPA study did state that organics
were not detected above typical wood fuel, it is not possible to ascertain what percentage of the
material that was burned was represented by resinated wood residuals. Thus, we do not know
how much resinated wood materials were in the samples that were tested and how it correlates to
the emissions data.
We also acknowledge that resins are made from H, N, C, and O. However, our concern
rests with the amount of formaldehyde (which is a HAP and also is made of H, C, and O) that is
generated in the stack. While formaldehyde may be generated as a product of incomplete
combustion, it may also be emitted from the stack if it is present in the fuel material and is not
combusted at all. In other words, if some of the formaldehyde escapes combustion while in the
fuel chamber and is emitted in the stack, more formaldehyde is likely to escape. A unit
combusting 10 tons of formaldehyde is likely to result in more formaldehyde emissions than a
unit combusting one ton of formaldehyde simply due to the fact that there is more formaldehyde
in the fuel. Therefore, none of the information provided addresses our concern regarding
formaldehyde emissions. However, given that Public Law No. 111-199 will decrease
formaldehyde levels in the resinated wood residuals, the combustion of resinated wood residuals
should not increase the amount of formaldehyde that is emitted.
7. Used Oil
In the ANPRM, EPA had stated that off-specification (or "off-spec") used oil that is
collected from repair shops is generally thought to be originally discarded, but that on-
specification (or "on-spec") used oil was considered to be a product fuel, not a waste, because it
meets the fuel specification requirements of 40 CFR 279.11,83 However, between the ANPRM
82	75 FR 31862
83	See 74 FR at 58.
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and the proposal, EPA modified its view of on-spec used oil and identified it as a traditional fuel
because the Agency had decided that the on-spec used oil is similar in composition to virgin fuel
oil and has been historically managed as a valuable fuel product rather than as a waste.84
While EPA considers on-spec used oil to be an alternative fuel and thus, within our
definition of traditional fuel (see Section VILA), the Agency finds that the rationale in the
ANPRM also provides a valid reason for considering on-spec used oil to be a legitimate product
fuel and not a solid waste. The proposal also referred to the provisions of 40 CFR Part 279 that
allows off-specification used oil to be processed into on-specification used oil.85 Used oil may
be rendered on-specification, therefore, either by being generated that way or by being processed
under existing EPA regulations. These circumstances are not changed by EPA's issuing today's
rule.
On the other hand, based on the information received and the record established for this
rulemaking, we still consider off-spec used oil to be a solid waste, as off-spec used oil contains
contaminants at levels that are not comparable to those in traditional fuels. Under the existing
used oil regulations promulgated under RCRA, off-spec used oil can only be used in limited
devices, as identified in 40 CFR 279.61, including small oil-fired space heaters provided the
burner meets the provisions of 40 CFR 279.23.
EPA reiterates that the determination as to the waste status of used oil does not reopen the
regulations in Part 279. Those regulations remain in place. This rule considers the waste status
for purposes of CAA sections 112 and 129 based on the existing regulations. Further, EPA is
specifically clarifying in this final rule that used oil combusted in an oil-fired space heater that
meets the provisions of 40 CFR 279.23 need not be tested to establish whether or not such oil is
on or off-spec. This includes used oil generated by small facilities such as auto repair shops and
machine shops that have such units, and used oil-generated by homeowners who change their
own oil (referred to as "do-it-yourself' or "DIY" oil) that are burned in such units. This is
because the CISWI regulations promulgated elsewhere in the Federal Register today do not
establish emissions limits for such units, and therefore the concerns of the commenters that such
units would have to comply with CAA Section 129 standards have been addressed for this
population of combustion units.
Comment r3a-B7-11:
Many argued that all used oil is a traditional fuel and should not be considered a solid
waste regardless of its chemical composition, as it is treated as a valuable product no different
than virgin fuel oil. Thus, some commenters agreed with EPA that on-spec used oil is a
traditional fuel, but disagreed with the Agency's determination that off-spec used oil is a solid
waste.
Other commenters believe that that used oil, both on- and off-spec, falls within the
"ordinary everyday sense" of discarded materials whether they are burned or not and that all
used oil should be classified as a solid waste. Indeed, EPA does not identify any situation in
which these secondary materials are not wastes, except when they are burned for energy
recovery. Thus, EPA is essentially claiming that non-hazardous secondary materials, including
used oil, which would otherwise indisputably be wastes become non-wastes solely because they
84	See 75 FR 31855, 31861, 31864
85	75 FR 31865, 31877
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can be burned with energy recovery. Neither RCRA nor any of the case law interpreting RCRA
lends the slightest support to that notion.
EPA's Response:
We disagree that off-spec used oil should be considered a traditional fuel, or even a non-
waste fuel, since as we have discussed elsewhere in the preamble, such used oil contains
contaminants at levels that are not comparable to (or lower than) in traditional virgin refined fuel
oil. In fact, off-spec used oil may contain contaminants at levels that are significantly higher
than those in traditional virgin refined fuel oil. On the other hand, used oil that has been
determined to be on-spec contains contaminants at levels below the maximum concentration
limits established in the standards, levels that EPA considers to be comparable to (or less than)
those in traditional virgin refined fuel oil.86 In accordance with 40 CFR part 279, once used oil is
determined to be on-spec, it is no longer regulated under the used oil management standards.87
We also disagree that we are defining the use of used oil as fuel oil as the only situation
where used oil is not a solid waste. RCRA is silent on the issue of whether or not used oil is or is
not a solid waste. This rulemaking effort is the first to determine in which situations used oil
would be considered a solid waste. Additionally, 40 CFR 279 puts no restrictions on the use of
on-spec used oil once it has been determined to be on-spec, which indicates that the Agency has
historically viewed this material as a commodity and not a waste. We are also simply not
opining on other situations where used oil is used beyond its use as fuel as it does not matter for
federal law. States may make their own decisions on whether other uses are solid wastes.
Comment [introduction for off-spec used oil comments]:
Industry commenters argue that off-specification used oil should not be considered a
solid waste for a number of reasons relating to the statute and EPA regulations, as well as policy
preferences. (We elaborate and respond to each of the comments separately, below. The
comments also refer to on-specification used oil in much of the argument, but we have dealt
with on-specification used oil above. Thus, the comments and responses below only deal with
off-specification used oil issues.)
Comment T3a-B7-21:
Section 3014 of RCRA did not classify used oil as a waste and instead established a
separate regulatory program for used oil. This section provides EPA with authority to regulate
used oil that is recycled, independent of any determination whether or not used oil is a waste.
Moreover, RCRA section 1004(37) defines used oil to include "recycled oil" that is "burned."
Consistent with this provision, the used oil regulations in 40 CFR part 279 state "EPA presumes
that used oil is to be recycled unless a used oil handler disposes of used oil, or sends used oil for
disposal." 40 CFR 279.10(a). The commenters claim that these provisions mean that "disposal"
is separate from "burning" because "disposal" must be separate from "recycling." Thus,
"recycling" is separate from "solid waste" because the two terms are mutually exclusive.
In addition, the 40 CFR part 279 regulations already define what is legitimate used oil
86	See Used Oil Final Rule, 50 FR 49181 (November 29, 1985).
87	Once used oil is claimed to be on-spec and the marketer complies with the requirements for analysis and record
retention, notification, and record tracking shipment to on-specification burners, it is no longer subject to other
management standards. We note that today's rule does not change any of the regulations in place that regulate on-
spec used oil.
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recycling under section 3014 of RCRA, which includes recycling of off-specification used oil
with appropriate environmental safeguards. EPA cannot now reverse this determination without
a reasoned analysis.
Another provision of EPA's hazardous waste regulations, 40 CFR section 261.33,
supports this position with respect to whether off-specification used oil is a solid waste. Under
this provision, commercial chemical products and intermediates and off-specification variants
listed as hazardous wastes in 40 CFR 261.33, as well as some other materials not relevant here,
are solid wastes when burned for energy recovery unless the commercial chemicals are
themselves fuels. Commercial chemicals that are themselves fuels are not wastes when burned
for energy recovery. According to the comments, even off-specification variants of the
commercial chemical products may be burned as fuels and not be considered solid waste. See 40
CFR §§ 261.33(a) and (b); 40 CFR 261.2(c)(2)(B)(ii). The argument is that off-specification
used oil should also be treated as a non-waste when burned for energy recovery. That is, used
oil, even if off-specification, should be considered a product and not a waste under the rationale
that used oil is a commercial chemical product. Further, EPA should not treat off-specification
potentially hazardous wastes different from off-specification non-hazardous wastes.
EPA's Response:
EPA disagrees that this analysis of the statute and regulations shows that off-specification
used oil is not a solid waste. The Agency agrees that section 3014 of RCRA does not classify
used oil as either a waste or a commodity. However, section 1004(37), also, does not define
"recycled oil" as either a waste or a commodity. As EPA has explained elsewhere in this
preamble, the recycling of secondary materials, per se, does not mean that such materials are
either wastes or not. Wastes may have value and may be recycled, but they are still wastes.
Used oil may be recycled by being "burned," as provided under 1004(37), or may be recycled in
any number of other ways. The mere fact that the secondary material is recycled is not
dispositive for determining whether it is a waste. Thus, under the statute, contrary to the
commenter's view, "recycling" and "solid waste" are not mutually exclusive. This means that
EPA must decide whether the secondary material is a waste based on the definition of solid
waste in RCRA 1004(27) by deciding whether material is "discarded" in the plain meaning of
the word.
Similarly, Part 279 does not provide that the terms, "recycling" and "solid waste," are
mutually exclusive. Section 279.10(a) does distinguish between materials that are clearly
"disposed of' by, for example, being thrown into a landfill, but makes no determination as to
whether recycled secondary material is "discarded" in any other sense. Both 1LCO and Owen
Steel, for example, provide examples of recycling of wastes. As EPA continues to emphasize,
wastes may be recycled even by being burned for energy recovery, but they are still wastes.
As mentioned above, based on the information received and the record established for
this rulemaking, we have concluded that off-spec used oil does not meet the legitimacy criteria.
EPA has determined that off-specification used oil is a solid waste when burned for energy
recovery because it has greater contaminant levels than fuel oils and its markets are limited due
to this contamination. In particular, 40 CFR part 279 restricts the burning of off-specification
used oil to industrial furnaces, industrial boilers, utility boilers, certain used oil-fired space
heaters, and hazardous waste incinerators and specifically excludes non-industrial boilers, such
as those located in apartment and office buildings, schools, and hospitals. For a more detailed
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discussion of off-spec used oil, see 75 FR 31865. On-specification used oil, on the other hand, is
not a waste because it has contaminant concentrations similar to fuel oils. Due to this, 40 CFR
part 279 does not restrict where on-specification used oil can be burned. The definitions cited by
the commenters in the statute and regulations do not affect these determinations.
Section 261.33, also, does not affect EPA's interpretation of the waste status of used oil.
That provision deals with hazardous wastes and EPA has repeatedly stated that it is not
reopening its RCRA subtitle C regulations for comment. In any event, however, section 261.33
provides that chemicals manufactured as a fuel may be burned for energy recovery. It does not
apply to secondary materials that may later be used as fuels when their original use was different.
Furthermore, EPA is not making any changes to 40 CFR part 279 by virtue of this rule.
The Agency is not reversing itself on any part of 40 CFR part 279. Also, 40 CFR part 279 makes
no determination regarding the nature of the CAA regulations for any facilities that burn used oil
and EPA is not amending 40 CFR part 279 to state whether any used oil is a waste or not. Based
on the current provisions of 40 CFR part 279, it is entirely reasonable for the Agency to find that
on-specification used oil is not a waste, while off-specification used oil is a waste. Also, we
would note that off-spec used oil may still be burned in the same types of facilities provided in
40 CFR part 279, but the CAA must determine how they are to be controlled based on the fact
that the off-spec used oil is a waste.
Comment T3a-B7-31:
If EPA classifies burning off-specification used oil as a waste, it will no longer be
covered by the Part 279 Used Oil Management Standards. As EPA noted when it promulgated
the Part 279 Used Oil Management Standards, section 3014 only authorizes the regulation of oil
that is destined for recycling, not oil that is "discarded."
EPA's Response:
EPA disagrees with this comment. As noted above, EPA is not changing the used oil
regulations and off-spec used oil burned as a waste would still be subject to 40 CFR part 279.
The commenter is conflating the clear disposal of used oil - throwing it in a landfill, for example
- with the concept of "discard." "Discard" is not used in 40 CFR part 279 and "disposal" is not a
congruent term to "discard." That is, the regulations at 40 CFR part 279 do not discuss or
address whether used oil has been discarded; rather the requirements ensure that used oil that is
recycled is done so in a manner that protects human health and the environment.
Also, as noted repeatedly in the rulemaking record, wastes may be recycled as a fuel, but
they would still be wastes and would be discarded. The determination in this rule that off-spec
used oil is a waste only means that the facilities that burn it are burning it as a waste and they
will be subject to the appropriate CAA authorities. EPA has not previously opined as to the
consequences under the CAA of the various facilities that burn used oil.
Comment T3a-B7-41:
If EPA fails to classify off-specification used oil as a product, it will be in violation of the
Congressional mandate to promulgate regulations that "do not discourage the recovery or
recycling of used oil, consistent with the protection of human health and the environment." 42
U.S.C. 6935(a).
EPA's Response:
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EPA disagrees with this comment. The Agency is constrained by the provisions of
RCRA that define solid waste as material that is discarded. Furthermore, we feel the definitions
established in this rulemaking in fact do not discourage the recovery or recycling of used oil. For
example, EPA is specifically clarifying in this final rule that used oil combusted in an oil-fired
space heater that meets the provisions of 40 CFR 279.23 need not be tested to establish whether
or not such oil is on or off-spec. This includes used oil generated by small facilities such as auto
repair shops and machine shops that have such units, and used oil-generated by homeowners who
change their own oil (referred to as "do-it-yourself' or "DIY" oil) that are burned in such units.
This is because the CISWI regulations promulgated elsewhere in the Federal Register today do
not establish emissions limits for such units, and therefore the concerns of the commenters that
such units would have to comply with CAA Section 129 standards have been addressed for this
population of combustion units.
Comment T3a-B7-51:
Commenters argued that contaminant concentrations found in "off-spec used oil" is
comparable to traditional fuels. While commenters submitted studies that looked at both on-spec
and off-spec used oil to support this assertion, Table 4 only summarizes data presented in the
comments on the contaminant levels in off-spec used oil as compared to fuel oil and coal. In
U.S. Study 1, 55 samples were collected "throughout the USA" from facilities that combust used
oil in space heaters and/or small boilers. Two of the 55 samples were off-spec; one was off-spec
for total halogens and the other was off-spec for cadmium. The researchers identified the off-
spec used oil for total halogens was an industrial oil that contains non-hazardous chlorinated
paraffin and the other was from a military operation. Table 4 presents the data on the two
samples that were off-spec. In the U.S. Study 2, researchers looked at a database of used oil
samples maintained by a national commercial laboratory. The database contained over 3,500
used oil samples from the U.S. and other countries on which over 17,000 analyses were
performed from 2008 to present. Between 24 and 53 samples in this dataset exceed the
specification for one of the contaminants - specifically for total halogens and chromium. The
researchers speculated that the high levels of halogens were due to non-hazardous chlorinated
paraffin which is used (added to the oil by lubricant manufacturers) in industrial oils designed to
encounter high pressure. The researchers did not speculate on the reasons for the high levels of
chromium. Table 4 presents the data on the off-spec samples, only. In the Canadian study, 230
samples of used oil were collected from various businesses in Ontario, Canada between 2003 and
2010. Of those samples, four were off-spec for arsenic, but not by significant amounts. The
commenters did not speculate on the reasons for the high levels of arsenic. Table 4 presents the
results of the analysis of the four off-spec samples.
Table 4. Contaminant Concentrations in O
f-spec Used Oil and r
Yaditional Fuels
Material
U.S.
Study
j 88
U.S.
Study
2 89
Canadian
Study90
Fuel Oil
No.
1,2,4,6 91
Coal92
88	Source: EPA-HQ-RCRA-2008-0329-0799.2
89	Source: EPA-HQ-RCRA-2008-0329-1273.1 Attachment B
90	Source: EPA-HQ-RCRA-2008-0329-0799.4
91	Source: EPA-HQ-RCRA-2008-0329-0799.2, EPA-HQ-RCRA-2008-0329-1273.1, Attachment B
92	Ibid.
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# Samples
2
24-53
4
unknown
unknown
Year
2010
2010
2003 -
2010
unknown
unknown
Contaminant
Concentrations
Total
Halogens
(ppm)
Minimum
2,700
NR
42.2
<500
13,140
Maximum
6,170
NR
151.0
Median
4,435
6,642
80.5
Average
4,435
9,409
88.6
As
(ppm)
Minimum
<1.0
NR
5.1
<0.23
1.0-120
Maximum
<1.0
NR
6.7
Median
<1.0
<1.0
6.1
Average
<1.0
1.95
6.0
Cd
(ppm)
Minimum
0.30
NR
<0.92
<1.2
0.2-5.0
Maximum
2.60
NR
<1
Median
1.45
0.13
0.97
Average
1.45
0.69
0.97
Cr (ppm)
Minimum
<4.0
NR
<1.2
<2.3
1.0-90
Maximum
<4.0
NR
2.2
Median
<4.0
16.0
2.0
Average
<4.0
20.9
2.0
Pb (ppm)
Minimum
14
NR
<4.6
7-57
0.5 - 0.9
Maximum
15
NR
17.0
Median
15
11.0
5.6
Average
15
35.2
8.2
NR = Not Reported
EPA's Response:
While data was submitted regarding higher levels of contaminants in coal than in off-spec
used oil, coal is not an appropriate comparison for used oil since some combustion units that
burn used oil can alternatively only burn fuel oil and not coal (such as space heaters). Thus, used
oil should be compared to fuel oil. The specifications promulgated under 40 CFR 279.11 were
developed by looking at contaminants in fuel oil and the risks posed by those contaminants. The
data submitted states that the average total halogen content of off-spec used oil from one study is
9,409 ppm (with the on-spec concentration of 4,000 ppm maximum). Also, off-spec used oil
contains as much as 21 ppm of Cr, on average, (with the on-spec concentration of 10 ppm
maximum). Thus, off-spec used oil does not meet the legitimacy criterion for contaminants.
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When EPA created the specification levels set in 40 CFR 279.11, it identified those levels
as being comparable to fuel oils. EPA maintains that these levels are appropriate standards to
measure what should and should not be burned in CAA section 112 and 129 units. Thus, off-
spec used oil (those oils that do not meet the specification levels set in 40 CFR 279.11) is
deemed to have more contaminants than fuel oils produced for burning and, therefore, are a solid
waste.
Comment T3a-B7-61:
EPA is ignoring the fact that the level of contaminants in a secondary material is not
dispositive of whether or not a secondary material is a waste. It is merely an indicator of
whether or not EPA should look more closely at the recycling activity when making the waste
determination. Levels of contaminants only insignificantly higher than those found in traditional
fuels hardly imply a purpose of disposal, assuming the secondary material being combusted is
otherwise a valuable fuel. Only when a material contains contaminants at significantly elevated
levels does it begin to become reasonable to presume that there may be an intention to discard.
EPA's Response:
We agree that contaminant levels are an indicator of waste activity and we have
investigated the case of off-spec used oil to fully assess if its use in a combustion unit is truly a
waste activity. As a result of our investigation, it is clear from the data in Table 4 that off-spec
used oil does not contain comparable levels of contaminants to fuel oils.
Comment T3a-B7-71:
In the context of determining whether a hazardous secondary material is a solid waste,
EPA recognizes that legitimate recycling can occur even if the material has higher levels of
toxics than virgin materials. To show this, the comment cites a discussion by the Agency in an
earlier rule in which foundry sands are reused for mold making in a facility's sand loop. The
comment argues that it is relevant that the sands used to make the molds may have significantly
higher concentrations of hazardous constituents than virgin sand. However, because the sand is
part of an industrial process where there is little chance of the hazardous constituents being
released into the environment or causing damage to human health and the environment, these
levels would not affect the legitimacy of the recycling process.
EPA's Response:
EPA disagrees with this comment. In the first place, the Agency is not reopening its
hazardous waste regulation. EPA's identification of the legitimacy criteria is based on the record
for today's action, and does not address hazardous waste. In any event, the discussion of
foundry sand contamination, even though it would be a hazardous waste without application of
the legitimacy criteria for that rule, presents what appears to be a vastly different recycling
situation. In this rule, combustion will result in releases to the air. This is why the rule calls for
restrictions on burning. The foundry sand example is a closed loop system and is not implicated
by contamination problems that releases lead to the atmosphere. We would also note that in a
March 28, 2001 letter from Elizabeth Cotsworth, then Director of the Office of Solid Waste and
Eric Schaeffer, then Director of the Office of Regulatory Enforcement to Amy Blankenbiller of
the American Foundry Society, we also discussed the use of foundry sand as part of the sand
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loop for mold-making being part of a continuous industrial process.93 However, the letter also
made clear that the letter did not address the thermal processing of sand, which would be a
combustion unit, and would be more equivalent to a scenario that is addressed in today's final
rule.
Comment T3a-B7-81:
Commenters argued that processing of off-spec used oil is contrary to the goals of energy
efficiency and wise resource utilization. They argued that the rule should continue to
allow/follow the rules set forth in 40 CFR 279.11 as it pertains to used oil as a viable and not
discarded fuel. That is, if off-spec used oil is blended with virgin oil or on-spec used oil to meet
the 40 CFR part 279 used oil specs, the resulting oil should be considered a legitimate fuel
product.
Other commenters argued, however, that when these materials are distilled into fuel, they
are still wastes, regardless if they have been blended or processed to obtain an on-spec material.
Wastes are always wastes and their status cannot be changed through simple processing.
EPA's Response:
Whether or not processing of used oil is contrary to the goals of energy efficiency, off-
spec used oil contains more contaminants than traditional fuels, and thus, is not a traditional fuel.
In addition, as we have stated previously, the regulations at 40 CFR part 279 do not discuss or
address whether used oil has been discarded, as commenters have claimed, but rather ensure that
used oil that is recycled is conducted in a manner that protects human health and the
environment. To that end, we encourage, and the RCRA used oil regulations currently allow, the
processing of off-spec oil to create on-spec used oil as per 40 CFR 279.50, which states that
processing "includes, but is not limited to: blending used oil with virgin petroleum products,
blending used oils to meet the fuel specification, filtration, simple distillation, chemical or
physical separation and re-refining." There is nothing in today's rule that would change this
requirement.
We also disagree with commenters that processing of off-spec used oil into on-spec used
oil still renders it a waste. EPA's regulations at 40 CFR 279.11 state that, once oil is determined
to be on-specification in accordance with the regulations in Part 279, the used oil regulations do
not apply to the material. On-specification used oil is for all intents and purposes the same as oil
refined as a product fuel in the first instance and the Agency is not reopening its 40 CFR part 279
regulations.
Comment T3a-B7-91:
Commenters argued that used oil, particularly from automobiles, is on-specification and
facilities that burn automobile oil should be allowed to burn them under CAA section 112, along
with other on-spec used oil. Comments base this determination on the elimination of leaded
gasoline. Commenters also supplied studies to support this assertion.94
93	A copy of this letter can be found in the docket to today's rule.
94	See documents EPA-HQ-RCRA-2008-0329-0799; EPA-HQ-RCRA-2008-0329-1273.1; EPA-HQ-RCRA-2008-
0329-1686
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EPA's Response:
The data provided in the comments indicates that a very small portion of used oil is off-
spec. Assuming the data is representative of used oil, most used oil will be an alternative fuel
(within the definition of a traditional fuel). This does not allow us to make a broad classification
that, because only a small portion of used oil is off-spec, used oil can be generally classified as
on-spec. On the other hand, the data in the studies submitted by commenters indicate that used
oil obtained from small, private automobiles serviced by DIYers and auto repair shops will be
on-spec, which would not be a solid waste. In addition, as we describe elsewhere in today's
preamble, persons can submit a non-waste determination petition if they believe that their used
oil is not a waste.
Comment r3a-B7-101:
Many commenters stated that there are numerous auto repair shops that use used oil to
fuel their space heaters, which do not (or would not likely) meet the air pollution controls
required by the CAA section 129 standards. The commenters argue that such auto repair shops
will no longer be able to use off-spec used oil in their space heaters if off-spec used oil is
determined to be a solid waste.
Moreover, commenters assert that auto repair shops will likely not want to take on the
additional burden of testing the used oil to determine if it is on-spec in order to use some portion
of the material in their space heaters without having to comply with the CAA section 129
standards. They further assert that these shops may illegally dispose of used oil if they cannot
burn it in their space heaters and they are not located near a processor. Commenters expressed
concerns that they may also stop collecting used oil from individuals who remove their own used
oil (do-it-yourselfers, or DIYers) as they have no incentive to take the DIYers oil, which may
lead to DIYers illegally disposing of their used oil.
EPA's Response:
In this rule, EPA determined whether off-specification used oil is a solid waste.
However, EPA's regulations promulgated today under CAA 129 do not apply to space heaters.
Thus, today's rule would not in any way change the current regulatory scheme or operations for
burning of used oil in space heaters since the Agency is not promulgating emission standards for
such units.
In particular, EPA is specifically clarifying in this final rule that used oil combusted in an
oil-fired space heater that meets the provisions of 40 CFR 279.23 need not be tested to establish
whether or not such oil is on or off-spec. This includes used oil generated by small facilities
such as auto repair shops and machine shops that have such units, and used oil-generated by
homeowners who change their own oil (referred to as "do-it-yourself' or "DIY" oil) that are
burned in such units. This is because the CISWI regulations promulgated elsewhere in the
Federal Register today do not establish emissions limits for such units, and therefore the
concerns of the commenters that such units would have to comply with CAA Section 129
standards have been addressed for this population of combustion units.
EPA also points out that anyone wishing to show that the material is on-spec does not
have to test the used oil, but can use other information besides analyses. Specifically, the
existing regulation under 40 CFR 279.72 states that used oil fuel can be determined to be on-spec
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by "performing analyses or obtaining copies of analyses or other information documenting that
the used oil fuel meets specifications."
8. Coal Refuse95
Coal refuse refers to any by-product of coal mining or coal cleaning operations. Coal
refuse is generally defined by a minimum ash content combined with a maximum heating value,
measured on a dry basis. Coal refuse consists primarily of non-combustible rock with attached
coal that could not be effectively separated in the era in which it was mined. Due to advances in
coal preparation technology over the past century, the processing of coal has evolved such that
materials that are now generated in the coal mining process, which would have been considered
coal mining rejects in the past and discarded in waste piles, are now handled and processed as
coal. In the early twentieth century, coal preparation involved simple size segregation into lump
coal for domestic use and intermediate-sized coal for industrial use. Coal fines were considered
unfit for use and were disposed of as mine rejects in discarded coal refuse piles. Today,
however, coal preparation plants are much more capable of separating coal from mineral matter
through processes, such as density separation and froth flotation.96
Thus, the proposed rule differentiated between coal refuse that is currently generated and
coal refuse that was generated in the past and placed into "legacy" piles. The proposed rule
considered coal refuse that is currently generated and used as a fuel as not being abandoned or
disposed of and, therefore, is not considered a solid waste. On the other hand, the proposed rule
stated that coal refuse placed in legacy piles has clearly been discarded, thus meeting the
definition of a solid waste material. With regard to coal refuse from legacy piles, the proposed
rule described the processing of this non-hazardous secondary material as involving separation
through the use of screens or grizzlies, blending, crushing, or drying. Although we understand
that virgin coal is similarly processed, the proposal stated that the Agency believes that such
operations would constitute "minimal processing" and would not meet the processing definition,
as proposed. Thus, under the proposed rule, coal refuse abandoned in legacy piles would be
considered solid waste, as would the coal refuse that has been processed and used as a fuel in
what was considered to be a minimal set of sizing activities.
The proposal also noted one commenter who contended that coal refuse contained
elevated levels of mercury, chromium, and lead when compared to other coals. Because the
proposal already determined coal refuse in legacy piles to be a solid waste (discarded and
insufficiently processed), we did not believe it was necessary to determine whether coal refuse
from legacy piles would satisfy the contaminant legitimacy criterion. However, the proposed
rule noted that although coal refuse can contain metals concentrations that are higher than found
in virgin coal, data also show that emissions levels from some facilities burning coal refuse
(namely those equipped with circulating fluidized beds (CFBs)) are lower than most existing
95	The proposed rule differentiated between coal refuse and mined landfill ash. For a discussion regarding the use of
mined landfilled ash as a fuel, see the coal combustion residuals section for fuels (Section V.B.9); for a discussion
regarding the use of these non-hazardous secondary materials as ingredients, see the coal combustion residuals
section for ingredients (Section V.C.2).
96	See National Research Council of the National Academies (NRC), "Coal Research and Development," 2007,
accessed on May 14, 2008 at: http://www.nap.edu/catalog.php7record id=l 1977. See generally "Materials
Characterization Paper on Coal Refuse," a copy of which is included in the docket for today's rulemaking.
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pulverized coal utility boilers. For the proposed rule's characterization of coal refuse, see 75 FR
31865-6.
Accordingly, the Agency seems to have faced a dilemma in deciding how to treat the
"legacy" piles. This dilemma was reflected in the comments, described below, which shows an
inherent illogic in treating coal refuse generated from mining operations today and used as fuel
differently from coal refuse mined from the "legacy" piles, which seem to be no different.
Comment r3a-B8-11:
Responding to EPA's request for comment regarding whether other fuels in use today
should also be classified as traditional fuels, several commenters argued that coal refuse should
be considered a traditional fuel, regardless of when generated, as it has been used as a fuel for
approximately 30 years. Citing the preamble to the proposed rule, commenters stated that EPA
recognized that "changes in technology and in the energy market over time may result in
additional secondary materials being economically viable to be used as 'traditional' fuels," and
that the advancement of technology, specifically the advent of circulating fluidized beds (CFBs),
has allowed coal refuse to be used as fuels for decades.97 Thus, these commenters reason, it is
most appropriate to consider coal refuse to be a traditional fuel.
EPA's Response:
We begin by recognizing that we have several difficulties in dealing with coal refuse.
We are faced with a statute that places limits on the Agency's ability to cover "discarded"
material. Case law indicates that a material may not lose its waste status merely because it has
value. As technology advances, material that has been a waste may be no different from material
that may today be used as a product. EPA, in fact, has no jurisdiction to consider as wastes
currently mined coal that was formerly "refuse."
Coal refuse is unique, however, from other non-hazardous secondary materials addressed
in this rulemaking, as it is generated in the process of producing fuels (i.e., the mining of coal for
use as fuel) and its subsequent use and value as a secondary material is also as a fuel. Since the
primary product of a coal mining operation is itself fuel, we consider coal refuse to be more akin
to a raw material that is subsequently processed and utilized to produce a fuel. In other words,
coal refuse is different from other non-hazardous secondary materials, such as used tires or
resinated wood residuals, in that it is generated in the production of fuel and can be used itself as
a fuel (and in fact has never been used for anything else).
The two materials that are used in major quantities today as valuable fuels, but have
formerly been discarded are coal refuse and tires. A major difference between these two
materials that EPA finds relevant is that the coal refuse in the legacy piles has never been used
for anything else and is mined as fuel in the first place. Tires, on the other hand, are originally
produced for a use that is fundamentally different from its current use as a fuel. Cement kiln
users do not ask tire manufacturers to produce tires for burning in the kilns. Coal, however, was
never used for any other activity. It was mined years ago to produce a fuel, but may now be used
itself as fuel. Therefore, coal refuse is fundamentally different from tires, as well as the other
non-hazardous secondary materials that are discussed in the preamble to this final rule.
97 Referenced citation can be found at 75 FR 31856.
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Responding to commenters that also noted that coal refuse has been used as a fuel for
thirty years due to advances in technology, we find this information useful, but not determinative
in our analysis of whether or not coal refuse meets our definition of a traditional fuel. However,
the fact that coal refuse has been used and managed as a fuel for thirty years when coupled with
the fact that coal refuse is unique from other non-hazardous secondary materials in that it is a
byproduct of fuel production processes and is itself a raw material that can be used as a fuel leads
us to determine that coal refuse that is currently generated and used as a fuel should be
considered a traditional "alternative fuel." However, coal refuse that has been abandoned long
ago in legacy coal refuse piles would not be considered a traditional fuel that is not subject to
coverage and assessment in this rule, since it is clearly a material that has been discarded in the
first instance.
We note that other non-hazardous secondary materials have also been used as fuels for
similar lengths of time or even longer, but would not be considered traditional fuels. We again
emphasize that our decision to classify coal refuse as an alternative fuel is based both on the fact
that it has been used and managed as a fuel for thirty years combined with the fact that we find
coal refuse to be distinctive among the other non-hazardous secondary materials at issue in
today's rule; i.e., coal refuse is in fact raw material coal that is generated as a result of coal
mining operations whose primary product is fuel.
We also note that our characterization of coal refuse that is currently generated as an
alternative fuel is not inconsistent with the proposed rule's characterization of this material. The
proposed rule stated that currently generated coal refuse would not be abandoned or disposed of
and, therefore, not a solid waste. The proposed rule did not, however, specifically state that coal
refuse that is currently generated is a traditional fuel. For clarity, it is appropriate to do so today,
and will amend our definition of traditional fuels to also include alternative fuels that reflect this
determination.
As previously discussed, coal refuse that has been placed in legacy piles would not meet
the definition of traditional fuels, as they clearly have not been historically used and managed as
a fuel. It is clear that coal refuse abandoned in legacy piles has been discarded and managed as a
waste. Our rationale for this distinction between coal refuse that is currently generated and coal
refuse that was placed in legacy piles is further discussed in the comment response below. Thus,
coal refuse that has been placed in legacy piles would be considered solid waste unless it is
processed into a legitimate fuel product. We respond to comments received regarding the
processing of coal refuse later in this section.
Comment T3a-B8-21:
Many commenters stated that all coal refuse should be considered a "fuel," regardless of
when the coal refuse is generated and urged EPA to eliminate the "false distinction" based on
when the coal was mined (i.e., coal refuse that is mined from legacy piles shares the same
characteristics as coal refuse that is generated today).
At least one commenter cited 40 CFR 60.41 as defining "fossil fuel" as "natural gas,
petroleum, coal, and any form of solid, liquid, or gaseous fuel derived from such materials for
the purpose of creating useful heat." The commenter went on to cite 40 CFR 60.41b, which
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states that "Coal means.. .coal refuse.. ,"98 and argues that this definition in the regulation has
nothing to do with when the coal refuse was generated and should always be considered a fuel.
EPA's Response:
We disagree with the comments contending that coal refuse placed in legacy piles should
be characterized and regulated the same as coal refuse that is generated currently, as this fails to
acknowledge that such coal refuse has been discarded. As has been discussed, the statutory
definition of solid waste turns on whether or not a material has been discarded in the first
instance. Courts have consistently held that the term "discard," is to have the ordinary, plain-
English meaning (i.e., "disposed of," "thrown away," or "abandoned"). As coal refuse placed in
legacy piles have clearly been abandoned, we cannot ignore the fact that these materials have
been discarded in the first instance and, therefore, do not agree with the contention that this
construct represents a "false distinction." The resulting distinction may lead to results that some
may find illogical, but we are faced with the definition of "discard" and the fact that the mere
fact that discarded material may have value does not allow the material to lose its waste status.
Although we recognize that all coal refuse is (and was) generated during the fuel
production process and are more akin to raw materials, coal refuse that has been abandoned in
legacy piles have not been historically used and managed as a fuel and therefore cannot be
considered a traditional fuel. Because the technology did not exist that could effectively make
use of the fuel value of these materials at the time of their generation, they were managed as
wastes and abandoned in legacy piles. While we find that currently generated coal refuse should
now be considered alternative fuels for the reasons stated above, we cannot ignore that coal
refuse that has been placed in legacy piles have clearly been discarded and, thus, unless these
materials are "sufficiently processed" and satisfy all legitimacy criteria for fuels, these secondary
materials would be considered solid wastes when burned as fuels in combustion units.
Regarding the comments that argue that EPA has previously defined coal to include
coal refuse, we note that this information was helpful, but disagree the cited regulatory
definitions control in this rulemaking. The cited definitions, which are included in the standards
of performance for new stationary source regulations, were developed pursuant to the CAA and
do not address the issue of discard. Today's rulemaking is being promulgated under RCRA,
which, as mentioned above, hinges on the whether or not the non-hazardous secondary material
at issue has been discarded. EPA also reemphasizes that the distinction is not between "fuel"
and "waste," but between fuel that is a commodity (not a waste because it has not been
discarded) and waste fuel that has value, but is still a waste.
In the same CFR sections cited by commenters which define coal as including coal
refuse, we note that coal refuse is defined as meaning "waste-products of coal mining, cleaning,
and coal preparation operations (e.g., culm, gob, etc.) containing coal, matrix material, clay, and
other organic and inorganic material"99 and "any byproduct of coal mining or coal mining
operations with an ash content greater than 50 percent, by weight, and a heating value less than
13,900 kJ/kg (6,000 Btu/lb) on a dry basis."100 These definitions highlight the uniqueness of coal
98	"Coal means all solid fuels classified as anthracite, bituminous, sub-bituminous, or lignite by the American
Society of Testing and Materials in ASTM D388 (incorporated by reference, see Sec. 60.17), coal refuse, and
petroleum coke..." See 40 CFR§ 60.41b.
99	See 40 CFR 60.41
100	See 40 CFR 60.41b
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refuse and in fact support the distinction we are making between coal refuse that is currently
generated and coal refuse that has been placed in legacy piles. That is, it may be appropriate to
consider coal refuse to be within the definition of coal because it may now be used as coal, while
at the same time, it may also be appropriate to consider coal refuse to be a "waste-product" or
"byproduct" of coal mining operations. EPA's evaluation that coal refuse that is currently
generated and used as a fuel has never been discarded and should be considered an alternative
fuel, while discarded coal refuse should be considered a solid waste, is consistent with these
regulatory definitions.
Comment T3a-B8-31:
Most commenters addressing the issue of processing coal refuse stated that coal refuse
from legacy piles is processed the same way as is virgin coal; that is, the processing of these
materials includes the use of grizzlies, screens, and blending to improve the quality, remove
metal objects, reduce the ash content, reduce the sulfur content, and reduce concentrations of
various constituents. These comments maintained that this level of processing should satisfy
EPA's definition of "processing" because the processing that occurs is designed specifically to
improve the fuel quality and remove contaminants in the process (for example, metals that are
removed with ash that is screened out).
One commenter stated that it is illogical and problematic for EPA to propose a minimal
level of processing that requires additional activities than are used to prepare virgin materials for
use. This commenter provides the example of a company that recovers coal refuse from
previously discarded piles, screen the refuse to remove large pieces of slate and rock, conducts a
chemical analysis to identify Btu, ash, and sulfur characteristics, hauls the coal refuse to its
preparation plant where it is cleaned just like mined coal, and then sold as is or blended with
mined coal to meet contractual orders. This commenter argues that EPA did not provide
adequate justification in the proposed rule for why this process would be insufficient to turn a
once discarded non-hazardous secondary material into a non-waste fuel product.
Additionally, commenters noted that in the case of facilities burning coal refuse,
regardless of whether it is generated currently or was placed in legacy piles, the engineering
design of a CFB is based on the quality of the coal refuse available to be burned in the boiler. In
other words, considerations for use of the coal refuse as a fuel precede facility construction and
directly impact boiler design and application. Therefore, coal refuse from legacy piles that is
processed in this manner (i.e., in the same manner as currently generated coal refuse) should not
be considered a solid waste.
EPA's Response:
As finalized in §241.2, the term "processing" is defined as meaning "any operations that
transform discarded non-hazardous secondary material into a non-waste fuel or non-waste
ingredient product. Processing includes, but is not limited to, operations necessary to: remove or
destroy contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or
drying the material in combination with other operations; chemically improve the as-fired energy
content; or improve the ingredient characteristics. Minimal operations that result only in
modifying the size of the material by shredding, do not constitute processing for purposes of this
definition." We have determined that this definition encompasses an appropriate level of
processing necessary to render a discarded material into a non-waste product.
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As several commenters noted, the processes that are employed to recover coal refuse that
has been placed in legacy piles in order to be used as fuels are the same as the processes that
virgin coal is subject to. As discussed above, coal refuse is unique from other non-hazardous
secondary materials in that it is a byproduct of fuel production processes and is itself a raw
material that can be used as a fuel. Because coal refuse is essentially raw material coal, which is
generated in the production of fuel and can be used itself as fuel, we agree with the commenter
who stated that it would be illogical to require a different level of processing for discarded coal
refuse than is used for virgin coal. Therefore, coal refuse that is recovered from legacy piles and
used as fuel that is subjected to the types of operations that are used to process virgin coal, which
serve to both increase energy values as well as reduce contaminants, would meet our definition
of processing and would not be considered solid waste, provided these materials satisfy our
legitimacy criteria, which they do since currently mined coal is certainly a legitimate fuel and is
the same as those from the legacy piles.
Comment T3a-B8-41:
EPA received comments providing new contaminant data for coal refuse. However,
some commenters acknowledged that coal refuse can have higher levels of some metals, but
agreed with EPA that coal refuse is typically used as a fuel in newer boilers equipped with CFBs,
which have emissions levels lower than most existing coal utility boilers.101 One commenter
stated that notwithstanding the higher metals content of coal refuse, CFBs typically capture
between 90-99 percent of mercury and other metals. While most commenters noted that
emissions levels associated with burning coal refuse are similar to those found when burning
virgin coal, one commenter did provide a comparison in concentration levels of various
contaminants between coal refuse and regional coal samples. A selection of the specific data
provided by the commenter is replicated in Table 5 below:
Table 5. Comparison of Trace Metal Contents (ppm) of Regional Coal Samples and Coal Refuse
from Legacy Piles, as provided in comments on the NHSM Proposed Rule.		
Sample
Sample
Sb
As
Be
Cd
Cr
Co
Pb
Mn
Hg
Ni
P
Se
Description
ID












Coal samples
No.












fromUSGS
database -
Samples
244
244
244
244
244
244
244
244
244
244
244
244
Cambria,













Indiana, and
Somerset
Minimum
0.11
0
0.6
0.01
2
1.5
0.8
2
0.00
3.4
22
0.68
Counties,













PA102
Maximum
7.80
200
9.5
1.00
65
34.0
44.0
390
2.90
86.0
3400
20.00
101	CFBs ability to achieve lower emissions levels is due to several factors: (1) CFB boilers are often newer than
many existing pulverized coal utility boilers and may be equipped with better particulate matter (PM) controls; (2)
CFBs utilize lower operating temperatures, which result in lower metal and NOX emissions; and (3) CFB boilers
often add limestone to their feed to control S02 emissions, which results in greater fixation to the ash.
102	Coal sample data found in the U.S. Geological Survey—National Coal Resources Data System. For more
information, see http://energv.er.usgs.gov/coalaual.htni).
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Samples of
Sample 1
1.5
50.7
2.1
0.3
80.2
22.7
33.1
134
0.644
44.7
718
7.8
coal refuse













from legacy













piles located in
Sample 2
1.7
53.4
2.1
0.3
84.5
23.8
35.2
139
0.748
50.5
719
8.6
Cambria,













Indiana, and













Somerset
Sample 3
1.5
47.3
2.1
0.3
84.7
22.8
33.1
144
0.613
47.1
745
8.6
Counties, PA
Average
1.6
50.5
2.1
0.3
83.1
23.1
33.8
139
0.668
47.4
727
8.3
This data indicates that the concentration of the various contaminants in the coal refuse
samples were lower for almost all constituents (including mercury and lead) when compared to
regional coal samples. According to this data set, only chromium was consistently higher in the
coal refuse samples than the regional virgin coal, which also indicates that the difference in
concentration may be much closer than previously indicated in the preamble to the proposal.103
Therefore, provided that coal refuse from legacy piles are sufficiently processed, this commenter
asserts that coal refuse would pass the contaminant legitimacy criterion and should therefore not
be classified as a solid waste.
EPA's Response:
Regarding the contaminant levels in coal refuse in legacy piles, we agree with those
commenters who acknowledged that coal refuse can have higher concentrations of some metals
than is found in virgin coal. As noted in the proposed rule, at least one commenter on the
ANPRM contended that coal refuse could have up to four times more mercury and chromium,
and three times more lead than virgin coal.104 We note that this commenter did not provide
primary sources for this data, a point which was raised by at least one commenter. We generally
recognize, however, that available data show that coal refuse placed in legacy piles often has
higher metals concentrations than non-refuse coal concentrations, but we would presume that the
levels of contaminants are the same as in currently mined coal that would have been placed into
these piles in the past. We also recognize that contaminant levels will vary significantly
depending upon the region and type of coal at issue.105
As discussed above, we now determine that coal refuse that is currently generated should
be considered an alternative fuel. On the other hand, coal refuse that is recovered and processed
from the discard environment would need to pass the legitimacy criteria in order to be considered
a non-waste fuel. As coal refuse is recovered from legacy piles are subject to the same processes
as currently-generated coal refuse in order to meet the same fuel specifications, they would
contain any potential contaminants at levels that are comparable to or lower than coal refuse that
is currently generated.
We would further note that the contaminant data provided by the one commenter
demonstrates that there are also examples of coal refuse taken from legacy piles satisfying the
contaminant legitimacy criterion when directly compared to contaminant levels in coal. Given
103	Data provided by the commenter indicated that the average chromium levels of coal refuse was 83.1 ppm,
whereas the range of chromium levels for the regional virgin coal samples was between 2-65 ppm. The proposed
rule noted that chromium levels of coal refuse can be up to four times higher than virgin coal.
104	See 75 FR 31865.
105	See our Materials Characterization Paper on Coal Refuse, located in the docket for today's final rule.
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the regional variations in coal compositions, the analysis is on point given the fact that the
commenter compared similar regional coal refuse and virgin coal samples. Therefore, we agree
with the commenter that there are instances when coal refuse would also satisfy the contaminant
legitimacy criterion when compared to virgin coal as well.
Finally, we would note that although emissions comparisons are not a direct indicator of
whether these materials satisfy the contaminant legitimacy criterion, the emissions from CFBs
that use coal refuse as fuel typically have lower levels of emissions than typical pulverized coal
burners.
Comment T3a-B8-51:
Several commenters contended that the management of coal refuse at mining sites is
already regulated under the Surface Mining Control and Reclamation Act of 1997 (SMCRA) and
that defining coal refuse as a solid waste would be inconsistent with SMCRA. Specifically,
some commenters point out that although the term "solid waste" under RCRA includes mining
waste in the definition, EPA determined, in accordance with section 1006(c) of RCRA that
provides for the integration of RCRA with SMCRA, that materials and products associated with
coal mining activities should not be regulated as hazardous wastes.
EPA's Response:
RCRA section 1006(c) pertains to hazardous wastes under RCRA subtitle C. As such, it
is inapplicable for today's rulemaking, which is solely concerned with non-hazardous secondary
materials. Thus, we disagree with those commenters who cited section 1006(c) of RCRA and
argued that regulation of coal refuse found in legacy piles should be deferred to SMCRA. In
addition, SMCRA is concerned with the management and removal of coal refuse piles at mining
sites. It does not address the issue of "discard," which is critical to the definition of solid waste
under RCRA, and as such, which emission standards coal refuse that is in legacy piles and
burned in a combustion unit is subject to under the CAA.
9. Coal Combustion Residuals 106107
Coal combustion residuals (CCRs) are formed during coal-burning processes in power
plants and industrial boilers, and are produced in various forms that are categorized by the
process in which they are generated. The proposed rule differentiated between CCRs (which
include such secondary materials as fly ash, bottom ash, and boiler slag), that are currently
generated from those CCRs that have been previously disposed of (such as, mined landfill ash)
and are used as fuels in combustion units. Under the proposed rule, currently generated CCRs
that have not been discarded in the first instance and satisfy the legitimacy criteria would not be
considered a solid waste when used as a fuel in combustion units provided the CCRs were
burned in units within the control of the generator. For example, the proposal described a
situation where currently generated, high-carbon fly and bottom ash that is taken directly from
106	In a separate rulemaking effort, EPA has proposed regulations that will provide for the safe disposal and
management of coal combustion residuals from utility coal-fired power plants (the "Coal Combustion Residuals
Proposed Rule"). The proposed rule was published in the Federal Register on June 21, 2010. See 75 FR 35127.
Today's final rule does not affect that rulemaking effort, as our rule considers the use of coal combustion residuals
in combustion units as fuels or ingredients, while the coal combustion residual proposed rule is concerned with the
safe disposal and management of these residuals in landfills and surface impoundments. For more information on
the coal combustion residual proposed rule, see Docket ID No. EPA-HQ-RCRA-2009-0640.
107	For a discussion of CCRs used as ingredients, see Section V.C.2 of this final rule.
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existing boilers is burned within the control of the generator at power generating stations. On the
other hand, CCRs recovered from landfills or other disposal units would clearly have been
discarded in the first instance and would therefore have to be sufficiently processed into a non-
waste fuel product and meet the legitimacy criteria in order not to be considered a solid waste
when used as a fuel.
The proposed rule also noted comments received on the ANPRM describing patented
processes that separate the carbon from the fly ash in order to produce a new fuel product.
Although this level of processing appeared likely to meet the proposed definition of processing,
the proposed rule solicited comment on how CCRs are processed. The proposed rule also
requested comment regarding the extent to which CCRs are recovered from the discard
environment (e.g., landfills) and used as fuels. For the proposed rule's discussion of CCRs used
as fuels, see 75 FR 31865-6.
Comment r3a-B9-ll:
Most commenters argued that CCRs, when used in combustion units, should be classified
as ingredients rather than as fuels. The commenters often contended that classifying all CCRs as
ingredients would simplify waste determinations for these secondary materials by clearly
establishing the appropriate legitimacy criteria that apply (i.e., facilities would not need to
determine whether the fuel or ingredient legitimacy criteria apply based on the primary purpose
of the secondary materials). Some commenters acknowledged, however, that CCRs can be
combusted (e.g., by electric utilities) for energy recovery of its carbon content or combustion in
carbon burn-out (CBO) units for processing marketable fly ash products.
One commenter described CBO units, which they explained burn "unwanted carbon"
from fly ash to produce a low-carbon fly ash that is more suitable for use as an ingredient in
Portland cement, as being typically integrated with power plants. The CBO unit combusts fly
ash from the power plant in a fluidized bed, extracts the residual energy content of the fly ash to
fuel the CBO, and returns useful heat to the power plant. The commenter stated that the major
equipment that comprises the CBO unit includes a fluidized bed combustor and heat exchanger
to recover heat from the fly ash combustion. This same commenter described the heat generated
from the combustion of the carbon in the fly ash as "valuable" and is typically recovered from
the CBO and used to heat the host plant's condensate stream, which reduces the amount of
extraction steam required. In reasoning that this high-carbon fly ash should be considered an
ingredient, however, the commenter notes that energy generated from burning the secondary
material is of secondary importance to the production of the valuable low-carbon fly ash to be
sold to cement kilns.
EPA's Response:
We do not agree with commenters that all CCRs, when used in combustion units, should
categorically be defined as ingredients. As some commenters acknowledged, some CCRs are
indeed used for their fuel value as opposed to their ingredient value, especially when re-burned,
as in the case of their use in combustion units by electric utilities. Therefore, we cannot
categorically classify CCRs as ingredients when it is clear that, in some cases, these secondary
materials are being burned for their fuel value and/or to produce a new secondary material (i.e.,
low-carbon fly ash). In cases where the primary purpose of using CCRs is for their fuel value
and not for the ingredient value (e.g., by electric utilities in utility boilers), the secondary
materials must meet the requirements for fuels, including the legitimacy criteria, in order to not
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be considered a solid waste. In other words, to the extent that CCRs are used as fuels, these
secondary materials must remain within the control of the generator and meet the legitimacy
criteria for fuels or be sufficiently processed into a new fuel product in order not to be considered
a solid waste. We note, however, that sources may petition the Agency for a non-waste
determination for secondary materials managed outside the control of the generator, including
CCRs. See Section VII.G.
Regarding CBO units that burn high-carbon fly ash, creating both energy, as well as a
new marketable ingredient (i.e., low carbon fly ash), this activity would not constitute use of
these secondary materials as ingredients. When the fly ash goes into a CBO unit, it is clearly not
being used as an ingredient, but is used to produce an ingredient. It is less clear, however,
whether this activity represents a legitimate use of these secondary materials as fuels or should
be considered a type of waste management. The commenter states that burning of this fly ash in
CBO units provides "valuable heat" and indicates that the energy is used in turn to power the
CBO or returned to the power plant, which indicates that the burning of the fly ash could
constitute a legitimate use as a fuel. On the other hand, the same commenter also noted that the
fuel value is "secondary" to its value as an ingredient and the CBO process as removing
"unwanted carbon" from the fly ash, which may suggest that the fly ash is being burned as a
waste activity (i.e., the destruction of the unwanted carbon in order to generate a marketable
product).
Unfortunately, from the comments received, we are not able to make a categorical
determination whether or not the burning of fly ash in these units would constitute "discard," as
it is unclear whether the carbon is being destroyed or whether it is actually used for its fuel value.
In other words, the CBO unit is either "destroying" the carbon, which would make these
materials a solid waste, or the carbon is being recovered and used as a fuel, in which case these
materials would not be considered a solid waste provided they meet the legitimacy criteria.
While the CBO units are burning the ash to create a marketable product, in so doing they
may also be utilizing the separated carbon for its fuel value. The commenter indicates that use of
high carbon-fly ash in these CBOs may have more than marginal energy value and can even be a
source of additional power to an adjoining power plant. While we do not have sufficient
information to make a categorical determination regarding the use of fly ash as a fuel in these
CBO units, it is appropriate for these units to consider the legitimacy criteria in order to
determine whether or not the fly ash is being burned for discard or burned legitimately for its
fuel value.
As discussed in Section VII.H, legitimacy criteria are critical to ensuring that non-
hazardous secondary materials are being legitimately used. To the extent that a CBO unit can
determine that it meets the legitimacy criteria for fuels (including whether the fly ash has
meaningful heating value and is used as a fuel in a combustion unit that recovers energy), we
would consider such a use to be legitimate. We emphasize, however, that mere destruction of
the unwanted carbon would clearly represent discard and would by definition fail the meaningful
heating value legitimacy criterion. We also note that it is not clear from the comments how the
CBO unit recovers energy and whether it would meet our definition of a legitimate energy
recovery device. For a discussion of legitimate energy recovery devices, see the Response to
Comments on Sewage Sludge (Section V.B.10). If these units do not legitimately recover
energy, they would not meet the meaningful heating value criterion. See also Section VII.I,
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which discusses the types of notification and recordkeeping requirements, including
documentation as to how the non-hazardous secondary material meets the legitimacy criteria,
that a facility using these secondary materials as fuels that remain within the control of the
generator are subject to.
Finally, we note that the resulting low-carbon fly ash would be considered a new
secondary material, which would be considered an ingredient if it is later used in the production
of cement.
Comment T3a-B9-21:
One commenter, a utility, stated that the proposed rule's setting of minimum energy
content values for a secondary material to be used as a fuel and not be considered a solid waste
(i.e., the meaningful heating value legitimacy criterion) is inappropriate for the re-burning of fly
ash when producing concrete quality fly ash, as the coal ash used for re-burn is selected based on
its mineral content, combined with the mineralogy of the coal currently being used as a fuel. The
fuel value of the fly ash is only one technical consideration when introducing coal ash in
combustion systems for creating concrete quality fly ash and requiring a minimum heating value
may restrict the use of high quality fly ash for use in concrete and other applications.
EPA's Response:
We appreciate that the fuel value is only one of several considerations made when
selecting fly ash for re-burn; however, in order for fly ash that is re-burned to not be a solid
waste under today's final rule, it would need to either remain within the control of the generator
and meet the legitimacy criteria for fuels, including the meaningful heating value criterion, or, if
discarded, be processed into a new, legitimate fuel product. Some commenters stated that the
energy content of fly ash when burned is returned as useful heat. Based on the comments
received, however, it is unclear whether the fly ash in that instance would meet the meaningful
heating value criterion, as these comments do not include enough information about how much
energy is being recovered from the use of these secondary materials as fuels. In order to not be
considered a solid waste, the facility must determine whether the fly ash meets the legitimacy
criteria, including whether the fly ash has meaningful heating value and is used as a fuel in a
combustion unit that recovers energy.
We also note that we are not establishing a bright line test for satisfying the meaningful
heating value test. Rather, for purposes of meeting the legitimacy criteria for fuels, we would
consider non-hazardous secondary materials with an energy value greater than 5,000 Btu/lb, as-
fired, to have a meaningful heating value, and satisfy this legitimacy criterion. However, for
facilities with energy recovery units that use non-hazardous secondary materials as fuels with an
energy content lower than 5,000 Btu/lb, as fired, we believe it is also appropriate to allow a
person to demonstrate that a meaningful heating value is derived from the non-hazardous
secondary material if the energy recovery unit can cost-effectively recover meaningful energy
from the non-hazardous secondary materials used as fuels. See Section VII.H. 1 for a discussion
of how non-hazardous secondary materials can satisfy the meaningful heating value criterion for
fuels.
Comment T3a-B9-31:
Some commenters argued generally that EPA should not restrict the source of coal ash
that is re-burned and should allow coal ash that is used as a fuel to be transferred between
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facilities and retrieved from landfills because it is being beneficially used. One of these
commenters described how one of its power plants re-burns coal ash that it receives from two
other power plants that it also owns. This same commenter also noted that it re-burns coal ash in
one of its power plants that it has retrieved from an off-site landfill.
EPA's Response:
As discussed in Section V.A.I, EPA is not making a sweeping arbitrary assumption in
categorizing transferred secondary materials as discarded. 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 on-site and transferred for recycling, and determined whether they would be
appropriately placed within the waste or non-waste categories. EPA would consider transferred
non-hazardous secondary 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 harvested from vehicles
and resinated wood residuals.
Commenters discussing scrap tires and resinated wood residuals, however, provided
specific information regarding how these secondary materials were managed when they no
longer remained within the control of the generator and the frequency with which these materials
were collected and transferred off-site. 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).
On the other hand, commenters discussing the use of CCRs as fuels outside the control of
the generator did so only in general terms. Commenters provided legal arguments that case law
holds that transfer of such materials between companies were irrelevant for determining whether
a recycled material was properly viewed as a solid waste. See Section V.A.I for our response to
these legal arguments on the issue of "transfer" as it relates to the concept of discard. However,
these commenters did not specify how the proposed rule's presumption that non-hazardous
secondary materials that are used as fuels and are managed outside the control of the generator
are solid wastes was inappropriate for CCRs. In general, the D.C. Circuit has not accepted such
presentations in "broad abstraction." See ABR at 1056.
Because commenters did not provide sufficient information detailing how CCRs are
managed when transferred outside the control of the generator, we are unable to determine
whether such movement of CCRs outside the control of the generator is or is not indicative of
discard. Thus, such a determination is best left to the non-waste petition process, as finalized in
today's rule. As we've discussed, we believe this 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 such non-hazardous
secondary materials are or are not solid wastes. For a discussion of non-waste determination
petitions, see Section VII.G of today's rule.
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Regarding the commenter who described how one of its power plants re-burns coal ash
that it receives from two other power plants it also owns, we would expect that such a situation
would fall within the definition of "within the control of the generator," as codified in §241.2.
For the purposes of today's final rule, "within the control of the generator" means that the non-
hazardous secondary material is generated and burned in combustion units at the generating
facility; or that such material is generated and burned in combustion units at different facilities,
provided the facility combusting the non-hazardous secondary material is controlled by the
generator; or both the generating facility and the facility combusting the non-hazardous
secondary material are under the control of the same person. We have also codified the
definition of "control" as meaning the power to direct the policies of the facility, whether by the
ownership of stock, voting rights, or otherwise, except that contractors who operate facilities on
behalf of a different person as defined in this section shall not be deemed to "control" such
facilities. See §241.2. As the commenter states that it owns the other two plants, such intra-
company movement would ensure that the materials would remain within the control of the
generator and, therefore, such CCRs would not be considered a solid waste when used as a fuel
provided they meet the legitimacy criteria. In the instance where a facility is re-burning coal ash
that is recovered from landfills, such coal ash is a solid waste, as this material has clearly been
discarded. Coal ash that is recovered from landfills must be sufficiently processed in order to no
longer be considered a solid waste.
Comment T3a-B9-41:
We received a few comments regarding the extent to which CCRs are mined from
landfills (i.e., recovered from the discard environment). One commenter asserted that it was
unaware of any recovery of CCR from disposal sites, while one another commenter
acknowledged that while it could utilize recovered landfill fly ash, it was not currently doing so.
Still another commenter stated it removes CCRs from landfills and that such removal for either
energy recovery or beneficial reuse was facilitated by a regulatory innovation program sponsored
by the state and endorsed by EPA. Consequently, this commenter commonly re-burns coal ash
that is recovered from landfills. This commenter notes that it has developed and uses patented
processes to use this fly ash, but does not provide specific details regarding how these secondary
materials are processed.
EPA's Response:
It does not appear that it is a widespread practice for CCRs to be recovered from the
discard environment (e.g., landfills) and beneficially used. However, from comments received
both on the ANPRM and the proposed rule, it appears that at least some CCRs are being
recovered from the discard environment or could be recovered from the discard environment—
for example by the one commenter citing its participation in a state regulatory innovation
program. Although we recognize the benefits associated with recovering CCRs from landfills,
these non-hazardous secondary materials have clearly been discarded in the first instance and
would have to be sufficiently processed into a new fuel product (or ingredient product) to not be
considered a solid waste when used in combustion units. As we've stated elsewhere in the
preamble, today's final rule is limited to CCRs used as fuels or ingredients in combustion units.
In other words, today's rulemaking should not impact other potential beneficial uses of CCRs,
such as using these secondary materials as a base material to replace stone or gravel under roads,
parking lots and buildings.
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Comment T3a-B9-51:
EPA received comments on the ANPRM stating that there are at least four patented
processes for removing unwanted carbon from fly and bottom ash that allow the processed ash to
produce both technically compliant ash for use in concrete and a separate carbon stream that can
be re-introduced into the boiler for its fuel value. One electric utility, commenting on the
proposed rule, also mentioned patented processes for using CCRs recovered from landfills.
However, neither of these commenters provided specific details regarding how the CCRs are
actually processed.
EPA's Response:
Unfortunately, EPA did not receive sufficient information during the comment period
describing the types of processes that CCRs undergo to be able to make a categorical
determination whether the patented processes referenced in the proposed rule would meet the
definition of processing being promulgated in today's final rule. Although we did receive some
information regarding how CCRs are processed, we have determined, as we stated in the
proposed rule, that certain operations are currently being utilized to recover CCRs from the
discard environment that would likely meet our definition of "processing." For example, we are
aware of at least one electric utility that recovers ash from ponds or landfills and then separates
this secondary material into its fundamental components: carbon, silicates, and high-density,
iron-rich materials. A coarse carbon-fuel product is then recovered by density separation using
concentrating spirals. A fine carbon-fuel product is also recovered with flotation cells.108 We
believe that this type of processing operation is likely to meet our definition of processing, as it
appears that these operations in fact remove contaminants and improve the fuel characteristics of
recovered CCRs. Thus, a determination would need to be made as to whether such processes
meet the definition of processing, as codified in §241.2.109
10. Sewage Sludge.
The proposed rule classified sewage sludge (or wastewater treatment sludge) generated
from publicly owned treatment works (POTWs) as solid waste when burned as fuels in
combustion units. However, the proposed rule also specifically solicited comment on whether it
is within the Agency's discretion to provide a regulatory solid waste exclusion for sewage sludge
when burned in incinerators in order to preserve the current framework for regulating sewage
sludge managed under section 405 of the Clean Water Act (CWA) and to avoid redundancy.
When making the determination that sewage sludge is a solid waste when burned as a fuel in a
combustion unit, the proposed rule stated that the Domestic Sewage Exclusion (DSE) under
RCRA (see 261.4(a)) does not apply to the sludge generated from the treatment process and thus,
sewage sludge is a solid waste if discarded. The proposed rule also noted that burning sewage
sludge without energy recovery (i.e., burned for destruction) would constitute discard.
Responding to commenters describing POTWs that recover heat in the form of usable heat via
waste heat boilers, the proposed rule stated that the Agency does not consider waste heat boilers
108	See "Materials Characterization Paper on Coal Combustion Residuals-Coal Fly Ash, Bottom Ash, and Boiler
Slag." A copy of this document has been placed in the docket for today's rule.
109	We note, however, that burning any secondary material, including CCRs, in a combustion unit would not
constitute "processing," as determining whether or not a material is a solid waste must occur prior to its placement
in the combustion unit. To consider the burning of such materials as "processing" would be circular.
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to be legitimate energy recovery devices, but rather these combustion units are burning the
sewage sludge primarily for disposal purposes. Finally, the proposed rule stated that sewage
sludge would likely not satisfy the contaminant legitimacy criterion, as data indicates that
sewage sludge often contains metals at levels that are significantly higher in concentration when
compared to traditional fuels. For the proposed rule's discussion of sewage sludge, see 75 FR
31866-7.
Comment T3a-B 10-11:
Several commenters argued that EPA has the discretion to exclude or exempt sewage
sludge from this rulemaking and should exercise that discretion in order to preserve the current
framework for regulating the burning of sewage sludge pursuant to 40 CFR 503 (Part 503),
which codifies regulations developed under the authority of section 405 of the CWA. These
commenters also note that EPA has a non-discretionary duty to consider all environmental laws
to prevent duplication when promulgating regulations under section 1006(b) of RCRA and that
deeming sewage sludge a solid waste to be regulated under section 129 of the CAA violates
EPA's non-discretionary duty to harmonize environmental laws because emissions from sewage
sludge incinerators (SSIs) are already comprehensively regulated under other statutes.
EPA's Response:
We agree with the commenters that section 1006(b) requires EPA to integrate the RCRA
requirements with the requirements of the CWA and the CAA, as well as other laws. Section
1006(b) also states that such integration shall be effected only to the extent that it can be done in
a manner consistent with the goals and policies expressed in RCRA and in the other acts referred
to in section 1006(b). Thus, while we recognize that emissions from SSIs have been regulated
under other statutes, the purpose of today's final rule is not to regulate emissions from SSIs, but
rather to determine whether sewage sludge is or is not a solid waste to allow the Agency to
decide whether the material must be combusted under emissions standards developed under
section 112 or 129 of the CAA. Sewage sludge is one of many non-hazardous secondary
materials that are discussed and analyzed in this final rule.
We also note that section 405(d)(5) of the CWA states that nothing in section 405 is
intended to waive more stringent requirements established by the CWA or by any other law.
This provision clearly states that section 405 of the CWA does not preempt other regulation.
Therefore, we believe today's final rule is consistent with the goals and policies of RCRA, the
CWA, and the CAA and thus, satisfies the requirements of section 1006(b).
Comment T3a-B 10-21:
Commenters asserted that Congress wrote section 112 of the CAA to regulate sewage
sludge emissions, stating that section 112(e)(5)110 of the CAA directs EPA to issue emissions
standards under section 112(d) for POTWs, including SSIs. These commenters also argued that
sewage sludge quality and incineration is strictly regulated under the CWA and that the current
regulatory structure under both the CWA and section 112 of the CAA is effective and should not
be altered.
110 CAA section 112(e)(5) states, "The Administrator shall promulgate standards pursuant to subsection (d) of this
section applicable to publicly owned treatments works (as defined in Title II of the Federal Water Pollution Control
Act [33 U.S.C. A. § 1281 et seq.] not later than 5 years after November 15, 1990."
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EPA's Response:
Today's final action is defining solid waste under RCRA and as such we are not
addressing the definition of POTW under the CWA or the requirements of the CAA.
Comment T3a-B 10-31:
Several commenters reiterated the position that the DSE applies to sewage sludge
generated by POTWs and, therefore, stated that sewage sludge is exempted from the definition of
solid waste under RCRA. Citing the preamble to the 1980 RCRA subtitle C regulations, at least
one commenter stated that the Agency indicated that once the to-be-developed regulation under
section 405 of the CWA is promulgated, sewage sludge would be exempt from coverage under
other sets of regulations.111 The same commenter also cites the 1990 Petroleum Refinery
Primary and Secondary Oil/Water/Solids Separation Sludge Listings Rule (1990 Listings Rule),
which states "It should be noted that if wastewaters generated at petroleum refineries are
discharged to a POTW and such wastewaters are mixed with domestic sewage from
nonindustrial sources, the sludges generated in the POTW are covered under the domestic
sewage exclusion and are not included in today's listings."112
EPA's Response:
For the same reasons stated in the proposed rule, we do not agree with the comments
suggesting that the DSE applies to the sludge generated from the treatment process. EPA has
long viewed sewage sludge generated from POTWs as a solid waste, beginning with the 1980
Identification and Listing of Hazardous Waste rulemaking. In that final rule, EPA stated that the
DSE is "only applicable to non-domestic wastes that mix with sanitary waste in a sewer system
leading to a POTW."113 In that same rule, EPA further said it decided not to exclude sewage
sludge from regulation under RCRA, since the statutory expressions regarding the definitions of
"solid waste" and "sludge" was clear.114
We agree that the 1980 Identification and Listing of Hazardous Waste rulemaking
referenced by the commenter states that once the regulations are promulgated under section
405(d) of the CWA, sewage sludge will be exempted from coverage from "other sets of
regulations." The preamble continues, however, to state: "In particular sewage sludge that
qualifies as a hazardous waste will be exempted from this Part [261] and Parts 262 through 265"
once this program is promulgated under CWA section 405. However, this exclusion is
specifically limited to RCRA subtitle C (i.e., hazardous waste),115 and does not apply to the
111	See 45 FR 33102 (May 19, 1980).
112	See 55 FR 46364 (November 2, 1990) (Footnote 14).
113	Id at 45 FR 33097.
114	Id at 45 FR 33101. "Under Section 1004(27) of RCRA, the definition of "solid waste" specifically includes
"sludge from a waste treatment plant." In defining "sludge," Section 1004(26A) includes wastes from a "municipal
wastewater treatment plan." Because of these very clear statutory expressions, EPA must regulate sewage sludge
under RCRA..."
115	We would note that even though the CWA section 405(d) regulations have been promulgated, EPA never
exempted sewage sludge from the subtitle C hazardous waste regulations, and thus, sewage sludge that exhibits any
of the characteristics of hazardous waste must be managed as a hazardous waste. See 45 FR 33102, May 19, 1980
where it states, "The Agency's strategy for the development of a comprehensive sewage sludge management
regulation will eventually result in the establishment of a separate regulation. Once such a regulation is in place,
sewage sludge will be exempted from coverage under other sets of regulations. . . .Pending promulgation of this
comprehensive sewage sludge regulation, sewage sludge will not be specifically excluded from Subtitle C."
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subtitle D program under RCRA.
Regarding the citation from the 1990 Listings Rule, this footnote is in error and is
inconsistent with our historic interpretation of the scope of the DSE, as discussed both in the
proposed rule and today's final rule. Thus, the DSE does not apply to the sludge generated from
the treatment process.
Comment T3a-B 10-41:
Several commenters stated that sewage sludge has meaningful heating value and that
EPA should re-evaluate its description of this criterion. Commenters argued that EPA's
determination that waste heat boilers do not qualify as combustion units that recover energy is
arbitrary and does not recognize the significant value of waste heat boilers and their role in
energy generation. One commenter, a regional sewer district that estimated roughly 93 percent
of its sewage sludge was "incinerated," stated that four of its boilers had produced a total of 2.5
billion pounds of high pressure steam over a twenty-five year span by converting the heat
generated from burning sewage sludge in multiple hearth incinerators to high pressure steam.
EPA Response:
We find that most sewage sludge is burned not for energy recovery, but for destruction.
Sewage sludge burned in an incinerator for the purposes of destruction would clearly meet the
meaning of discard, and thus be a solid waste. While we recognize that waste heat boilers are
useful devices for providing energy in the form of steam for secondary processes, the presence of
a waste heat boiler does not, by itself, change the fact that the unit combusting the non-hazardous
secondary material is primarily an incineration unit burning waste for disposal purposes.
Further, the Agency does not regard waste heat boilers as legitimate energy recovery
devices because they receive their energy input from the combustion of off-gases via a separate
combustion chamber. Under the RCRA program, a legitimate energy recovery device is one that
meets the definition of a boiler or an industrial furnace.116 Among other criteria, a boiler's
combustion chamber and primary energy recovery section(s) must be of integral design, unless it
falls under the process heater or fluidized bed combustion exemption. Thus, a combustion
chamber that is connected by a duct to a waste heat boiler (or recuperator/heat exchanger) does
not qualify as a legitimate energy recovery device.
Unlike boilers, which are specifically designed to recover the maximum amount of heat
from a material's combustion, waste heat recovery units are designed to cool the exhaust gas
stream, and/or to recover, indirectly, the useful heat remaining in the exhaust gas from a
combustion unit that has some other primary purpose (such as an institutional waste incinerator).
Thus, we continue to consider that sewage sludge is primarily burned for destruction and the
presence of a waste heat recovery unit would not, by itself, satisfy the meaningful heating value
legitimacy criterion.
Comment T3a-B 10-51:
116 See February 28, 1984 Memorandum from John H. Skinner, Director, Office of Solid Waste, to Thomas W.
Devine, Director, Air and Waste Management Division, EPA Region IV, entitled, "Guidance on Determining When
a Hazardous Waste Is a Legitimate Fuel That May Be Burned for Energy Recovery in Boiler or Industrial Furnace."
A copy of this memorandum is included in the docket for today's rule. For definitions of "boiler" and "industrial
furnace" under RCRA, see 40 CFR 260.10.
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Regarding the contaminant levels in sewage sludge, a number of commenters noted that
the pretreatment standards have reduced contaminants (particularly metals) in sewage sludge,
with a few commenters providing more recent contaminant data for sewage sludge than was
available in the proposed rule and stated that this new data demonstrates that currently generated
sewage sludge would meet the contaminant legitimacy criterion.117 The National Association of
Clean Water Agencies (NACWA) amended the data set included in the proposed rule by
providing data from a 2006-2007 Targeted National Sewage Sludge Survey (TNSSS). See
column four of Table 6 below:
Table 6. Comparison of Toxics of Municipal Wastewater Treatment Sludges to Traditional
Fuels.
Element
40 City Study
(1982)
National
Sewage Sludge
Survey (1988)
Targeted National
Sewage Sludge
Survey (TNSSS)
Coal
Mg/dry kg
Arsenic
9.9
6.7
6.9
10
Cadmium
69
6.9
2.6
0.5
Chromium
429
119
80
20
Lead
369
134.4
76
40
Mercury
2.8
5.2
1.2
0.1
Nickel
135.1
42.7
48
20
Selenium
7.3
5.2
7
1
Other commenters, however, agreeing that sewage sludge should be considered a solid
waste, noted that sewage sludge tended to have higher contaminant levels than traditional fuels
and should be regulated as solid waste when used as a fuel. Although not a part of the proposed
definition of "contaminants," some commenters noted the presence of pathogens in sewage
sludge.
EPA's Response:
The Agency appreciates the more recent and site-specific data provided by several
commenters. We agree that in most cases, the specific data provided by commenters indicates
that contaminant levels for most contaminants is not as high as previously reported in the earlier
studies. However, we note that the TNSSS data provided by commenters still indicates higher
levels, and those that EPA would not consider to be "comparable" for most of the contaminants
found in sewage sludge when compared to coal. Thus, under today's final rule, sewage sludge
would not satisfy the contaminant legitimacy criterion because of the presence of non-
comparable levels of metals when compared to traditional fuels. Regarding the commenter's
117 The proposed rule included a table comparing sewage sludge data taken from a 1982 40-city study and a 1988
National Sewage Sludge Survey, cited in the National Biosolids Partnership's 2005 "National Manual of Good
Practices for Biosolids," and coal data taken from a 1998 U.S. EPA report entitled, "Development of Comparable
Fuels Specifications." May 1998.
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reference to pathogens, pathogens are not included as a contaminant in today's rule since that
definition focuses on those constituents identified in the CAA that EPA will be evaluating to
determine whether to establish emission standards (see also discussion in V.D.3).
Comment T3a-B 10-61:
Finally, several commenters urged EPA to explicitly limit the scope of the final rule,
making it clear that this rulemaking would have no regulatory effects or impacts for sewage
sludge that is not incinerated (e.g., land application). On the other hand, one commenter
requested that the Agency designate sewage sludge as a solid waste regardless of the manner that
it is managed for disposal (land application, surface disposal, co-disposal in a municipal solid
waste landfill, or incineration).
EPA's Response:
We disagree with the one commenter who requested that this rulemaking define sewage
sludge as a solid waste regardless of its end use (i.e., land application, surface disposal, etc.). In
this final rule, EPA is articulating a framework for determining whether a non-hazardous
secondary material is or is not a solid waste when burned as a fuel or ingredient in a combustion
unit; we are not making solid waste determinations that cover other possible end uses (e.g., land
application of sewage sludge). It is the Agency's view that these regulations should not dictate
to state programs how to characterize and/or regulate this material (as well as any other non-
hazardous secondary material), particularly since EPA does not have authority to regulate the
beneficial use of non-hazardous secondary materials under subtitle D of RCRA. Therefore, EPA
agrees with those commenters who suggested the limited scope of this final rule and explicitly
recognize the narrow focus of this rulemaking.
11. Processed Fats.
Processed fats, including both animal fats and vegetable oils, can be turned into biofuels
for use in industrial boilers. The proposal did not discuss the use of this non-hazardous
secondary material or discuss its status as a fuel or waste under this rule. We did receive
comments pertaining to its status, however.
Comment r3a-Bll-11:
Commenters have argued that processed fats are a traditional fuel as they are not
discarded and are legitimate fuel products. Specifically, they argue that the use of processed fats
as fuel has been used in industrial boilers for more than a decade, as evidenced by approval of
the use of such fats as fuels in air permits for industrial boilers. The commenters also note that
processed fats are a primary product of the rendering process and not secondary materials or by-
products, are derived from inedible animal products, which are the primary products of value and
sale of the meat industry and not a secondary material or by-products, and are therefore not a
solid waste since it or its primary feedstock have never been a waste or discarded.
Processed fats also are managed as valuable commodities and have meaningful heating
value. They are managed similar to traditional oils, utilizing the same tanks, hoses, nozzles, and
tanker trucks, and have a heating value of around 17,000 Btu/lb.118 Processed fats, the
118 See document EPA-HQ-RCRA-2008-0329-0706.1
Adams, T.T., J. Walsh, M. Brown, J. Goodrum, J. Sellers, and K. Das, 2002. "A Demonstration of Fat and Grease as
an Industrial Boiler Fuel," University of Georgia, Athens, GA.
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commenters argue, also have a comparable composition to traditional fuel products. In fact,
processed fats contain considerably less contaminants (e.g., <0.010% sulfur by weight, 0.022%
ash by weight) and burn cleaner than many traditional fuels and derivatives (e.g., coal, oil, coal
tar oil, asphalts, etc). The limited contaminant data that was submitted showed that processed
fats had less than 1 ppm of vanadium. Commenters also stated that processed fats have fewer
contaminants than No. 6 residual oil (2% sulfur content), which will result in lower emissions of
sulfur dioxide, nitrogen oxides, particulate matter, and carbon monoxide. Furthermore, they
stated that processed fats also have lower emissions of sulfur dioxide, particulate matter and
carbon monoxide, as compared to No. 2 distillate oil (0.5% sulfur content). However, no data
was submitted to validate these statements.
The commenters also note that the federal government has encouraged the development
and use of materials, such as processed fats as a clean, renewable fuel that reduces dependency
on petroleum oils. Since 2006, the use of processed fats as fuel has been encouraged through the
Alternative Fuel Mixture Credit (26 U.S.C. § 6426(e)). Although the proposed rule is intended
to facilitate the use of certain materials that would otherwise be treated as waste by allowing
them to be designated as non-hazardous secondary materials and burned as fuels, the net effect,
with respect to processed fats, is the opposite. Rather than facilitate the use of processed fats as
fuel, the rule will effectively end the development of this market. This is because the end result
under the rule as it currently is proposed is a requirement that each potential customer must
petition and obtain EPA approval for each facility in which they wish to burn processed fats.
The burden and delay of submitting to such a process will have a chilling effect on the
development of new customers and markets for processed fats as fuel. As a practical matter, this
outcome is contrary to longstanding federal policy encouraging the development and use of
clean, renewable fuels in place of petroleum and other fossil fuels.
EPA's Response:
We disagree that process fats are a traditional fuel. Process fats are secondary materials
as they are produced from inedible parts of animals that were primarily butchered for meat, not
for use as a fuel. We recognize, however, that these non-hazardous secondary materials contain
lower concentrations of contaminants than traditional fuels119 and, as such, are being encouraged
for use instead of fossil fuels.120 In addition, since the fats are managed the same way that
traditional oil is, it is evident that the material is handled as a valuable commodity, meeting that
legitimacy criterion. Additionally, the material meets the legitimacy criterion for a meaningful
heating value. Since these materials are sometimes not managed within the control of the
generator (i.e., the butcher, the restaurant, etc.), questions could be raised as to whether they are
discarded if not burned in a combustion unit within the control of the generator. However, we
would note that the rendering process "sufficiently processes" the material into a non-waste fuel
that meets the legitimacy criteria, as we note above. Thus, the commenters concern that non-
waste determination petitions would need to be submitted on a case-by-case basis, and would
have a chilling effect on the development of new customers and markets for processed fats, is not
the case. Thus, the final rule establishes these non-hazardous secondary materials, after being
119	See the Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking -Identification of
Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQ-RCRA-
2008-0329-0461.21
120	See Adams, T.T. J. Walsh, M, Brown, J. Goodrum, J.Sellers, and K. Das, 2002. "A demonstration of Fat and
Grease as an Industrial Boiler Fuel," University of Georgia, Athens, GA.
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processed, as a non-waste fuel.
C. Comments on Specific Materials Used as Ingredients
The ANPRM identified a number of non-hazardous secondary materials that the Agency
believes are currently being used as legitimate non-waste ingredients in combustion processes.
The proposed rule then identified the four material groups for which we received the majority of
the comments on the ANPRM. The four material groups are CKD, CCRs, foundry sand, and
blast furnace slag/steel slag. The proposed rule did not assume that ingredients used in
combustion units that are not managed within the control of the generator are discarded materials
(as is the case for most non-hazardous secondary material fuels), since we believe that non-
hazardous secondary materials used as ingredients are more akin to commodities managed within
continuous commerce and are used as an integral part of the manufacturing process. That is,
non-hazardous secondary materials that are directly used (or in the case of previously used
materials, reused), function as effective substitutes (i.e., as raw materials) in normal
manufacturing operations or as products in normal commercial applications, and thus, EPA has
interpreted the definition of solid waste as excluding non-hazardous secondary materials
recycled in ways that most closely resemble normal production processes, provided they meet
the legitimacy criteria.
Besides the comments on specific non-hazardous secondary materials used as ingredients
described below, we again note the overarching comment that was raised by some commenters
that the Agency has no authority under section 129 of the CAA to regulate the use of secondary
materials as ingredients, as EPA's section 129 authority is limited to "solid waste incineration
units," which the statute defines as units that "combust" solid waste. As discussed in Section
V.A of today's final rule, we believe that this comment is not relevant to this regulation, which
determines whether non-hazardous secondary material is a solid waste, or not under RCRA.
EPA has clear authority to interpret RCRA to decide whether non-hazardous secondary materials
are solid wastes or not.
1. Cement Kiln Dust.
CKD is a fine-grained, solid, highly alkaline material removed from the cement kiln
exhaust gas by scrubbers. Much of the material comprising CKD is incompletely reacted raw
material, including a raw mix at various stages of burning, and particles of clinker. Generation
of CKD is directly connected to the production of cement clinker. The proposed rule indicated
that CKD used in a cement kiln would not be considered a solid waste when used as an
ingredient in a combustion unit, so long as it was not discarded in the first instance and satisfies
the legitimacy criteria for ingredients. Whether CKD remains within the control of the generator
or is transferred to another person is not in and of itself indicative of discard, as discussed above.
If CKD has been discarded, however, its use as an ingredient in cement kilns would be
considered combustion of a solid waste, unless it has been processed to produce a non-waste
ingredient.
Comment Pa-Cl-ll:
We received limited comments on CKD. One commenter urged EPA to state that CKD
that is removed from on-site storage piles or monofills should be considered a legitimate non-
hazardous secondary material and should not be considered a solid waste. The commenter
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explains that while CKD may have been previously placed in storage piles or even permitted
solid waste management units (SWMUs), the technology did not exist previously to reuse the
material. However, newer kiln systems can now use the CKD that has previously been disposed
of, and thus, these non-hazardous secondary materials (which are ingredients in the manufacture
of cement) should not be subject to the CAA section 129 standards.
EPA's Response:
The commenter acknowledges that even though the CKD has remained on-site, the intent
or purpose of placing CKD in storage piles or SWMUs was to dispose of them (i.e., discard).
Additionally, CKD that has been placed in storage piles in this manner would likely not meet the
legitimacy criterion of "managed as a valuable commodity." Thus, it would appear in this
instance that CKD that has been placed in storage piles for the purpose of disposal, even if on-
site, has been discarded and would be considered a solid waste if burned in a combustion unit,
unless the discarded CKD is processed into a non-waste ingredient product. (See discussion
elsewhere in today's preamble regarding the reason why non-hazardous secondary materials that
have been discarded in the first instance are solid waste if burned in a combustion unit, unless the
non-hazardous secondary material is processed into a non-waste ingredient product.) CKD that
has not been discarded in the first instance, however, and satisfies the legitimacy criteria would
not be considered a solid waste when used as an ingredient.
2. Coal Combustion Residuals.121
CCRs are formed during the coal-burning processes in power plants and industrial
boilers, and are produced in various forms (i.e., fly ash, bottom ash, and boiler slag) that are
categorized by the process in which they are generated. The proposed rule indicated that CCRs
used as ingredients in combustion units would not be considered solid wastes, provided they
were not discarded in the first instance and satisfy the legitimacy criteria.122 We also noted that
CCRs can be used both as an ingredient and as a fuel supplement and proposed that that the
decision to treat them as a fuel or ingredient should be based on the primary purpose of their use
in a combustion unit. We took comment on this approach, especially our characterization that
the primary use of CCRs in cement kilns is generally for their ingredient value, as opposed to
their fuel value.
The proposal also indicated that when CCRs are used for their ingredient value, the
transferring of these materials to another person would not in and of itself be indicative of
discard. However, to the extent that CCRs have been discarded in the first instance, they would
have to be processed into a non-waste ingredient product and satisfy the legitimacy criteria in
order not to be considered a solid waste. We also noted that comments were submitted on the
ANPRM, which described patented processes that remove unwanted carbon from coal fly ash in
order for these non-hazardous secondary materials to be used as an ingredient. While these
processes—that is, those that separate carbon from fly ash to produce technically compliant fly
121	In a separate rulemaking effort, EPA has proposed regulations that will provide for the safe disposal and
management of coal combustion residuals from utility coal-fired power plants (the "Coal Combustion Residuals
Proposed Rule"). The proposed rule was published in the Federal Register on June 21, 2010. See 75 FR 35127.
Today's final rule does not affect that rulemaking effort, as our rule considers the use of coal combustion residuals
in combustion units as fuels or ingredients, while the coal combustion residual proposed rule is concerned with the
safe disposal and management of these residuals in landfills and surface impoundments. For more information on
the coal combustion residual proposed rule, see Docket ID No. EPA-HQ-RCRA-2009-0640.
122	For a discussion of CCRs used as fuels in combustion units, see Section V.B.9 of this final rule.
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ash for use in concrete appear to satisfy our processing requirement, we requested that
commenters provide additional information explaining how this processing is conducted, and
whether this type of fly ash is used as an ingredient in the clinker production process. The
proposed rule also requested comment on the extent to which CCRs are recovered from the
discard environment (e.g., landfills) and used as ingredients in cement kilns, as well as more
information on the extent to which these CCRs are processed.
In addressing the commenter who submitted comments on the ANPRM and argued that
CCRs are solid wastes due to their high concentration of contaminants, the proposal noted that
the chemical properties of CCRs are influenced to a great extent by the coal burned, the type of
combustion unit, and the air pollution controls applied.123 Acknowledging that fly ash may
contain various levels of metals, such as vanadium, zinc, copper, chromium, nickel, lead, arsenic,
and mercury,124 the proposed rule noted that in a 2008 Report to Congress addressing the use of
these secondary materials as ingredients in cement and concrete applications, the overall
conclusion reached with respect to the perceived safety health risk barriers was a positive one, in
that the risk analyses did not identify significant risks to human health and the environment
associated with these uses.125
The proposed rule also noted that the Agency is studying the possible effects of new air
emission control technologies and configurations on the composition of CCRs and requested
comment on whether advanced emission control technologies, such as carbon control
technologies for mercury and NOx, are resulting or will result in increased levels of
contaminants in coal ash to the extent that coal ash would not satisfy our legitimacy criteria.
Comment T3a-C2-ll:
Almost all commenters agreed that the primary purpose when using CCRs in cement
kilns was to utilize these secondary materials as ingredients. Most commenters further asserted
that all CCRs, when used in combustion units, should always be classified as ingredients rather
than as fuels. (See Section V.B.9 for a further discussion on this comment and the Agency's
response.) These commenters claimed that any energy value that is recovered is secondary to its
value as an ingredient, and argued that classifying CCRs always as ingredients would simplify
the waste determinations for these non-hazardous secondary materials by clearly establishing the
appropriate legitimacy criteria that apply (i.e., facilities would not need to determine whether the
fuel or ingredient legitimacy criteria apply based on the primary purpose of the secondary
materials).
123	For more information on the different types, or ranks, of coal, please refer to the Materials Characterization Paper
on Traditional Fuels and Key Derivatives, which is located in the docket of today's final rule.
124	See "Technical Background Document for the Report to Congress on Removing Wastes from Fossil Fuel
Combustion: Waste Characterization." U.S.EPA. March 15, 1999.
125	"Study on Increasing the Usage of Recovered Mineral Components in Federally Funded Projects Involving
Procurement of Cement or Concrete to Address the Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users. Report to Congress." June, 3, 2008. EPA530-R-08-007. When analyzing perceived
safety and health risk barriers associated with the beneficial use of recovered mineral components (including CCRs
et al), this study concluded that "Findings from [several cited] analyses did not identify significant risks to human
health and the environment associated with the beneficial uses of concern. In addition, [EPA] identified no
documents providing evidence of damage to human health and the environment from these beneficial uses. Our
overall conclusions from these efforts, therefore, are that encapsulated applications, including cement and concrete
uses, appear to present minimal risk." Id. at 4-11.
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Some commenters were also concerned that if cement kilns burned high-carbon content
fly ash (which has more pronounced fuel content), the provisions of this rule applying to fuels
would be triggered, even though these secondary materials have nearly identical characteristics,
is managed in an identical manner, and is combusted in the same unit as the material used
primarily as an ingredient (i.e., low-carbon content fly ash).
EPA's Response:
EPA agrees with the commenters that the primary purpose when using CCRs in cement
kilns is to utilize it as an ingredient. However, we disagree with those commenters that argued
that all CCRs, when used in combustion units, should be categorically defined as ingredients. As
some commenters acknowledged (and as we also discussed in Section V.B.9 above), some CCRs
are indeed used for their fuel value as opposed to their ingredient value, especially when re-
burned, as in the case of their use in combustion units by electric utilities. Therefore, we cannot
categorically classify CCRs as ingredients when it is clear that, in some cases, these non-
hazardous secondary materials are being burned for their fuel value and/or to produce a new
secondary material (i.e., low-carbon fly ash). In cases where the primary purpose of using CCRs
is for their fuel value and not for their ingredient value (e.g., by electric utilities), the secondary
materials must meet the requirements for fuels, including the legitimacy criteria, in order not to
be considered a solid waste.
With respect to the issue of high-carbon fly ash burned in cement kilns, it is not clear the
extent to which cement kilns burn high-carbon fly ash or rather if commenters were providing a
hypothetical situation in order to highlight potential issues that could arise for secondary
materials that could have value as both a fuel and ingredient. It is also unclear whether low-
carbon fly ash is required as a substitute ingredient in Portland cement or if cement kilns can also
use high-carbon fly ash for its ingredient value. To the extent that these kilns are burning these
secondary materials for their fuel value as opposed to their value as an ingredient, these
secondary materials would be subject to the requirements for non-hazardous secondary materials
used as fuels promulgated in today's final rule.
We note other commenters who describe processes for removing unwanted carbon from
fly ash in order to produce concrete quality fly ash (lower carbon content), which could suggest
that cement kilns that burn high-carbon fly ash may be using these secondary materials for their
fuel value, as well as their ingredient value. These commenters, however, discussed instances
where fly ash was used as a fuel only in regards to its use in utility boilers and CBO units—
where there is clearly not an ingredient value, as is the case with burning fly ash in cement kilns.
Comment T3a-C2-21:
EPA received comments on the ANPRM stating that there are at least four patented
processes for removing unwanted carbon from fly and bottom ash that allow the processed ash to
produce both technically compliant ash for use in concrete and a separate carbon stream that can
be re-introduced into the boiler for its fuel value. One electric utility, commenting on the
proposed rule, also mentioned patented processes for using CCRs recovered from landfills.
However, neither of these commenters provided specific details regarding how CCRs that are
recovered from the discard environment are actually "processed." One other commenter
discussed a two-stage process to maintain low carbon content, but was not aware whether the
material was used for concrete or clinker production. Another commenter argued that the same
processes used for currently generated fly ash to separate high-carbon ash from mineral ash
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could be applied to reclaimed fly ash and produce similar secondary ingredients. This
commenter argued that the processes produce two materials that are chemically distinct from the
reclaimed fly ash and should therefore satisfy our proposed processing requirement.
EPA's Response:
Unfortunately, EPA did not receive information during the comment period describing
the types of processing that discarded CCRs undergo prior to being used as an ingredient in a
combustion unit and are, thus, unable to make a categorical determination whether the patented
processes referenced in the proposed rule would meet the definition of processing being
promulgated in today's final rule. Although we did not receive new information regarding how
CCRs are processed, as we stated in the proposed rule, certain processes are currently being
utilized to recover CCRs from the discard environment that would likely meet our definition of
"processing." For example, we are aware of at least one electric utility that recovers ash from
ponds or landfills and then separates this secondary material into its fundamental components:
carbon, silicates, and high-density, iron-rich materials. A coarse carbon-fuel product is then
recovered by density separation using concentrating spirals. A fine carbon-fuel product is also
recovered with flotation cells.126 We believe that this type of processing is likely to meet our
definition of processing, as it appears that these processes in fact remove contaminants and
improve the ingredient characteristics of these recovered CCRs. Thus, a determination would
need to be made as to whether such processes meet the definition of processing, as codified in
§241.2.
Comment T3a-C2-31:
As noted above, we solicited comments in the proposed rule regarding the extent to
which CCRs are recovered from the discard environment and used as ingredients in cement
kilns. We received a few comments regarding the extent to which CCRs are mined from
landfills (i.e., recovered from the discard environment). Most of these comments did not specify,
however, whether these recovered CCRs were subsequently used for their fuel or ingredient
value.
EPA's Response:
Based on the comments, it does not appear that it is a common practice for CCRs to be
recovered from the discard environment (e.g., landfills) and beneficially used. We respond to
these comments in Section V.B.9 (Comments on Specific Materials Used as Fuel-Coal
Combustion Residuals).
Comment T3a-C2-41:
Regarding the question of whether advanced emission control technologies are resulting
or will result in increased levels of contaminants in CCRs, one commenter stated that there was
no credible way to know or anticipate this information. Another commenter agreed, stating that
there is no data and no way to predict the result of new or future technology on the character of
fly ash because of the use of advanced pollution control technology. This commenter also notes
that there is no current information available that has proven that advanced emission control
technologies directly result in increased contaminant levels.
126 See "Materials Characterization Paper on Coal Combustion Residuals-Coal Fly Ash, Bottom Ash, and Boiler
Slag." A copy of this document has been placed in the docket for today's rule.
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One state commenter, however, stated that it expects the mercury content of coal fly ash
to increase significantly in upcoming years. Consequently, this state commenter described its
current efforts to remove a generic, pre-determined beneficial use determination for coal fly ash
as an ingredient in cement manufacturing. Additionally, another commenter stated that when
using the CBO process to combust fly ash, essentially 100 percent of the mercury entering the
CBO unit as feed ash leaves with the product ash.
EPA's Response:
EPA recognizes that it is difficult to anticipate what contaminant levels in coal fly ash
will result from implementation of future technologies. We also believe, however, that it is
important to be studying and anticipating the possible effects of new air pollution control (APC)
technologies and configurations on the composition of CCRs to the greatest extent possible. As
noted in the proposed rulemaking, EPA has begun publishing a series of reports to analyze this
issue further.127 Based on these reports, EPA believes that changes to APCs at coal-fired power
plants (e.g., addition of flue-gas desulfurization (FGD) systems, selective catalytic reduction, and
activated carbon injection to capture mercury and other pollutants) are shifting mercury and
other pollutants (e.g., metals) from the flue gas to fly ash, FGD gypsum, and other APC residues.
The Agency will continue to research the possible effects of APCs on contaminant levels in fly
ash. We note that under today's final rule, fly ash used as an ingredient would need to pass the
contaminant legitimacy criterion for ingredients in order to not be considered a solid waste.128
3. Foundry Sand.
Foundry sand is an industrial material generated by the metal-casting industry, which
uses the sand to form a physical mold used in the production of metal products. After multiple
uses in castings, the sand becomes unsuitable for castings and is either disposed of in landfills or
beneficially used in other applications, including use as an ingredient in the manufacture of
Portland cement. The proposed rule classified foundry sand as not being a solid waste when
used as an ingredient in a combustion unit, so long as it was not discarded in the first instance
and satisfies the legitimacy criteria for ingredients. Whether foundry sand remains within the
control of the generator or is transferred to another person is not in and of itself indicative of
discard, as discussed previously. If foundry sand has been discarded, however, it would be
considered a solid waste, unless it has been processed to produce a non-waste ingredient.
Comment T3a-C3-ll:
We received a few comments regarding the characterization of foundry sand in the
proposed rule. One commenter discussed how foundry sand is reused in the metal casting
127	A series of reports have been and are being developed by U.S. EPA's Office of Research Development. To date,
three documents have been finalized, including: (1) "Characterization of Mercury-Enriched Coal Combustion
Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control." EPA-600/R-06/008. Feb. 2006;
(2) "Characterization of Coal Combustion Residuals from Electric Utilities Using Wet Scrubbers for Multi-Pollutant
Control." EPA-600/R-08/077. July 2008; and (3) "Characterization of Coal Combustion Residuals from Electric
Utilities Using Multi-Pollutant Control Technology - Leaching and Characterization Data." EPA-600/R-09/151.
December 2009. Ongoing work to complete this research includes: (1) probabilistic assessment of the leaching
source term for plausible CCR management scenarios, (2) Leach-XS Lite which is free software providing
electronic access to data from this research, and (3) test methods for the Leaching Environmental Assessment
Framework (LEAF).
128	We also note that CCRs used as fuels must also meet the contaminant legitimacy criterion in order not to be
considered a solid waste.
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process as part of its argument that foundry sand should not be considered a solid waste, citing a
2001 letter from EPA which indicated that foundry sand reused on-site within the sand loop for
mold making is part of a continuous industrial process and, therefore, not a solid waste.129 The
same commenter also discussed how this sand can also be processed on-site in a thermal
reclamation unit so that the sand can be returned to the mold- and core-making process.
Commenters also discussed a variety of other beneficial uses for foundry sand.
EPA's Response:
The foundry sand uses evaluated as part of this rulemaking only include their use as an
ingredient in combustion, such as cement kilns. We do not consider the reuse of foundry sand in
the metal casting operations to constitute the use of a non-hazardous secondary material either as
a fuel or ingredient in a combustion system, but rather as a type of beneficial use that is routinely
employed by foundries in the production of metal products. As we stated in the referenced 2001
letter, foundry sands that are re-used on-site in the primary production process on a continuous
basis in the sand loop are not solid wastes.130
We note, however, that the 2001 letter cited by one commenter explicitly states that the
Agency is not addressing the status of any thermal processing of sand in the letter. It appears
that the purpose of "processing" foundry sand in a thermal reclamation unit is to destroy or
dispose of the contaminants so that the foundry sand can be re-used. As such, the burning of
foundry sand in a thermal reclamation unit is burning for discard and, thus, would be considered
a solid waste if combusted in such a unit, which would be subject to the section 129 CAA
standards. Regarding comments that discussed other beneficial uses of foundry sand, we again
note that this rule is limited to situations where the non-hazardous secondary material is used as a
fuel or ingredient in a combustion unit and, as such, other examples of using foundry sand in
other applications is beyond the scope of this rulemaking.
4. Blast Furnace Slag/Steel Slag.
Blast furnace slag and steel furnace slag (steel slag) are by-products of iron and steel
manufacturing in both iron and steel mills. Slags are used as ingredients in cement clinker
manufacturing, bituminous concrete, road building and construction, among other beneficial
uses. The proposed rule indicated that blast furnace and steel slag used as ingredients in
combustion units that are not discarded in the first instance would not be considered a solid
waste provided they satisfy the legitimacy criteria for ingredients. Whether blast furnace and
steel slag remains within the control of the generator or is transferred to another person is not in
and of itself indicative of discard, as previously discussed. However, if blast furnace and steel
slag are in fact discarded in the first instance, then they would have to be sufficiently processed
into a non-waste ingredient that satisfies the legitimacy criteria in order to be classified as a non-
waste ingredient. However, we solicited comments on the level of processing that these
materials undergo before determining whether such operations would meet our definition of
processing.
Comment T3a-C4-11:
129	March 28, 2001 letter from Elizabeth Cotsworth, Director, EPA's Office of Solid Waste to Ms. Amy J.
Blankenbiller, American Foundry Society. A copy of this letter can be found in the docket to today's rule.
130	For more information on the reuse of foundry sands as molds, see "Revisions to the Definition of Solid Waste"
Final Rule at 73 FR 64705. October 30, 2010.
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We received few comments specifically on blast furnace and steel slag. One commenter
discussed the use of blast furnace slag as a raw material substitute in the glass manufacturing
process. Another commenter discussed how blast furnace and steel slag are typically returned to
the iron and steel making processes and are not discarded in the first instance. The same
commenter also discussed slag piles that were previously discarded and the processing that these
non-hazardous secondary materials go through. Specifically, such processing includes
extraction, passing the slag through grizzlies, removal of iron bearing scrap using magnets, and
then screening to size the aggregate. Some commenters also asserted that because these slags are
reused as part of a continuous process, the application of the legitimacy criteria are inappropriate.
EPA's Response:
We agree with the commenters that blast furnace and steel slag that are reused as an
ingredient, either in the iron and steel making processes or in the manufacturing of glass, are not
solid wastes provided they have not been discarded in the first instance and meet the legitimacy
criteria. However, we disagree with the commenters, who argued that because they are reusing
these slags in a "continuous process," the application of the legitimacy criteria do not apply.
EPA has a long-standing policy that the recycling of secondary materials, both hazardous and
non-hazardous, including as part of a continuous industrial process, must be legitimate. The
legitimacy provisions in today's rule are designed to distinguish between real recycling activities
and "sham" recycling, an activity undertaken by an entity to avoid certain requirements, which in
this case would be to avoid triggering the section 129 CAA requirements for solid waste
incinerators. Because of the economic advantages in managing the non-hazardous secondary
material as a non-waste ingredient as opposed to a solid waste ingredient, there is an incentive
for some handlers to claim they are recycling, when, in fact, they are conducting waste disposal.
Therefore, blast furnace and steel slag used as an ingredient in a combustion unit, including as
part of a continuous industrial process, must satisfy all of the legitimacy criteria in order to not
be considered a solid waste.
Regarding the description provided by the commenter on the extent of processing
conducted on slags that have been previously discarded, it appears that this level of processing
would meet our definition of processing, as the processing includes not only rigorous operations
to extract the slag from the discard environment, but also the concerted removal of constituents
through magnetic separation. Assuming the processed slag meets the legitimacy criteria for
ingredients, the slag resulting from the processing operation would constitute a non-waste
ingredient and would not be considered a solid waste.
D. Comments on Legitimacy Criteria for Fuels
Non-hazardous secondary materials used as fuels in combustion units must meet the
legitimacy criteria specified in §241.3(d)(1) in order to be considered a non-waste fuel. 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. Details on each criterion as
outlined in the proposed rule and the comments received are discussed below.
1. Managed as a Valuable Commodity.
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Under the proposed rule, non-hazardous secondary materials used as fuels must be
managed as valuable commodities, including being stored for a reasonable time frame. Where
there is an analogous fuel, the non-hazardous secondary material used as a fuel must be managed
in a manner consistent with the management of the analogous fuel or otherwise be adequately
contained so as to prevent releases to the environment. Where there is no analogous fuel, the
non-hazardous secondary material must be adequately contained so as to prevent releases to the
environment. An "analogous fuel" is a traditional fuel for which the non-hazardous secondary
material substitutes, and which serves the same function and has similar physical and chemical
properties as the non-hazardous secondary material. In addition to requesting comment on this
criterion, the Agency solicited comment on whether it should define a specific "reasonable" time
frame or range of time frames for storage as part of this criterion and on the time period or range
of time periods that traditional fuels are typically held before they are used as a fuel. Comment
was also solicited as to whether the "contained" standard, which is a general performance
standard, provides sufficient direction to the regulated community or whether the Agency should
include specific technical standards or limit the types of units in which such non-hazardous
secondary materials may be managed, in order for them to be considered to be "managed as a
valuable commodity."
Comment Pa-Dl-ll:
Recommendations on a reasonable time frame to determine if a non-hazardous secondary
material is managed as a valuable commodity brought a range of responses. Many commented
that a one-rule-fits-all policy for the reasonable time frame of storage of non-hazardous
secondary materials is impractical and arbitrary, since the definition of what is "reasonable" will
vary by secondary material, industry, and facility. Instead, they argued that facilities should be
allowed to determine what constitutes the most reasonable time frame, based on what is most
economical. The most appropriate time frame will vary depending upon the non-hazardous
secondary material and the industry and may reflect the rate at which the non-hazardous
secondary material at issue is generated. If a non-hazardous secondary material is generated
continuously, then use and storage is predictable and can be kept consistent. However, some
non-hazardous secondary materials are stored for long periods and may be removed only once or
twice per year.
While many commenters rejected the idea of a specific storage time limit, a limited
number were supportive of such an approach. For example, one commenter recommended that
no more than 180 days of inventory using the design process rate be stored at any given time and
no more than 49 percent of the inventory be in storage for more than 2 years. These time frames
allow the energy/material recovery facility a reasonable amount of time to make arrangements to
establish, buy, and sell the non-hazardous secondary material. Other commenters recommended
a time frame of one year, consistent with the hazardous waste requirements for speculative
accumulation.
EPA's Response:
After further evaluation, EPA agrees with the majority of commenters that "reasonable
time frame" should not be specifically defined as such time frames vary according to the non-
hazardous secondary material and industry involved. The "reasonable time frame" is an
appropriate standard considering the large number of non-hazardous materials that may be
subject to this rule, and is flexible enough to allow accumulation of these materials to be cost-
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effective. In addition, persons will need to document in their records the "reasonable time
frame" selected and the basis for such time frames. (See Section VII.I for further discussion on
documentation of legitimacy decisions.) The Agency did not receive information that such
flexibility would lead to non-hazardous secondary materials being over-accumulated.
Comment T3a-Dl-21:
The Agency solicited comment on this aspect of this criterion, including whether a
"contained" standard, which is a general performance standard, provides sufficient direction to
the regulated community. Other approaches that EPA considered were: (1) providing a more
specific definition of "contained" in the rules, or (2) including specific technical standards or (3)
limiting the types of units in which such non-hazardous secondary materials may be managed, in
order for them to be considered to be "managed as a valuable commodity."
Several commenters recommended that the definition of "contained" be clarified and to
include the concept of maintaining the recyclability of the non-hazardous secondary material. In
contrast, other commenters stated that the proposed "contained" standard provides sufficient
direction to the regulated community and that the definition of "contained" in the proposed rule
adequately describes how and when a non-hazardous secondary material will be considered
"contained." They asserted that industry will use this definition as a general guideline for the
safe handling and storage of non-hazardous secondary materials and that further "specific"
definitions or other approaches would not be beneficial since the current guidance provides clear
and sensible direction.
Others commented that the "contained" standard is inadequate to determine whether a
material is "valuable" or discarded. They argue that the standard does not explain what
adequately contained means nor does it account for differences in the necessary level of
containment for different materials.
EPA's Response:
The Agency recognizes that the "contained" concept can be somewhat difficult to grasp,
but also notes that the "contained" standard is to be used only in those situations where there is
not an analogous fuel product. That is, if there is an analogous fuel product to the non-hazardous
secondary material, then the non-hazardous secondary material must be stored in a similar
manner and, since it is indeed a valuable material, EPA could reasonably expect it to be
contained so as not to be lost to the environment. In EPA's view, a recycler will value non-
hazardous secondary materials that are contributing fuel value to its process or product and,
therefore, will manage those non-hazardous secondary materials in a manner consistent with how
it manages a valuable fuel. If, on the other hand, the recycler does not manage the non-
hazardous secondary materials as it would a valuable fuel, that behavior may indicate that the
non-hazardous secondary materials may not be burned as fuel, but rather released into the
environment and discarded. This criterion's primary focus is on storage in a manner consistent
with the analogous valuable raw material.
However, EPA realizes that in some processes, there is not a raw material that can be
called "analogous" and, in order to allow facilities with those processes to evaluate the
legitimacy of their recycling, EPA added the requirement that the materials be "contained" if
there is no analogous product to achieve the same relative standard of secondary materials being
managed as valuable commodities. Furthermore, EPA has explained what it means to be
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contained in today's preamble and includes that definition in the regulatory text. Specifically, a
non-hazardous secondary material is "adequately contained" if it is stored in a manner that
adequately prevents releases or other hazards to human health and the environment, considering
the nature and toxicity of the secondary material. Thus, we are finalizing the contained standard,
as proposed.
Nevertheless, the Agency recognizes that providing greater clarity to this definition may
be useful to the regulated community and the public. To this end, EPA has agreed to issue a
proposed rule by June 2011 on the definition of solid waste under the hazardous waste provisions
of RCRA (see Section VIII.C for additional details). One of the issues that EPA will be
evaluating as part of that proposal is the "contained" standard, as promulgated in that rule.131
Comment T3a-Dl-31:
Several commenters expressed uncertainty about the meaning of "valuable commodity,"
noting that the definition of valuable commodity should be clarified, or requested that EPA
specify clear criteria for determining whether a non-hazardous secondary material is managed as
a valuable commodity.
EPA's Response:
Given the nature of this legitimacy criterion and the need to apply it to a variety of non-
hazardous secondary materials that are managed in various ways, we have determined that it is
not appropriate or practicable for EPA to develop specific technical standards. The Agency is
using this criterion: materials must be managed as analogous raw materials or, if there are no
analogous raw materials, the materials must be adequately contained; contained is defined to
mean "the non-hazardous secondary material is stored in a manner that adequately prevents
releases or other hazards to human health and the environment considering the nature and
toxicity of the non-hazardous secondary material." This definition provides ample direction and
guidance, as a number of commenters argued, while at the same time provides the flexibility
needed since this criterion will apply to a large number of non-hazardous secondary materials
and industries. As an example, resinated wood residuals are adequately contained since they are
pneumatically transferred through enclosed ducts, stored temporarily in a fuel silo, and then
utilized in boilers to provide heat to hot presses and dryers (see Section V.B.6).
Regarding the term "valuable commodity," EPA's intent with this criterion is that non-
hazardous secondary materials are managed in the same manner as materials that have been
purchased or obtained at some cost, just as fuels or raw materials are. We expect non-hazardous
secondary materials that are used as fuels or ingredients to be managed effectively and efficiently
in order that their full value to the combustion process is realized. The standard for management
of the non-hazardous secondary materials is reasonable for helping assess whether disposal in the
guise of normal manufacturing is occurring. As an example, scrap tires collected under the
oversight of established tire collection programs (see Section VII.C) would generally be
considered managed as a valuable commodity. These programs promote the beneficial use of
131 In a Federal Register notice where EPA announced a public meeting on the Definition of Solid Waste under the
hazardous waste provisions of RCRA, we specifically identified the definition of "contained" as one of the
provisions that EPA was further evaluating. (74 FR 25202, May 27, 2009.) Among other things, the Agency noted
that it could "address this issue by setting specific performance or storage standards as a condition of the transfer-
based exclusion. Finally, EPA could address this concern by developing more detailed guidance on what might
constitute "contained," for different types of units or management practices."
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scrap tires and form established collection infrastructures through coordination with tire
dealerships, haulers, processors and end users. On the other hand, scrap tires that are managed in
waste tire piles would not be considered to be managed as a valuable commodity because they
are stored for long periods of time without any safeguards.
Comments T3a-Dl-41:
One commenter suggested that the tests to determine if a material is managed as a
valuable commodity (determining if it is managed consistent with the management of an
analogous ingredient and used within a reasonable time frame) are irrelevant because solid
wastes are managed in ways similar to commodities (i.e., solid wastes and solid commodities are
stored in piles on the ground, liquid wastes and commodities are stored in tanks and barrels).
Another commenter asked that EPA provide clarity on managing a non-hazardous secondary
material as a valuable commodity and the kinds of practices a facility must implement to
demonstrate that it is managing the non-hazardous secondary material as a valuable commodity.
EPA's Response:
We disagree with the commenter that this criterion is irrelevant because we cannot
determine (nor does our experience suggest) that solid wastes and commodities are always
managed in a similar manner. Commodities, on the one hand, are handled specifically to prevent
the loss of material because of its value. Solid wastes, on the other hand, when they are not
highly regarded for a beneficial reuse, are often not managed in a way that minimizes the release
of the material itself, but more in a way that protects the surrounding environment from the
material. However, we also know that solid wastes, if not properly managed, have created
damages to the environment. For example, the over-accumulation of scrap tires is well known
and has resulted in massive piles of discarded tires that have contributed to the overall solid
waste management problem due to the threat of fires, such as the Rhinehart Tire Fire Dump,132
and because they provide an ideal breeding ground for mosquitoes and rodents.
As discussed previously, given the nature of this legitimacy criterion and the need to
apply it to a variety of non-hazardous secondary materials that are managed in various ways, we
are not identifying specific standards or practices for managing a material as a valuable
commodity beyond those examples for resinated wood and scrap tires outlined above. If any
material, whether a non-hazardous secondary material or a raw material commodity, is mis-
managed in a manner that releases significant material to the environment, a waste problem may
result. Although the raw material commodity is not subject to the RCRA definition of solid
waste, the released material may be. In this rule, where the Agency is dealing with secondary
materials that could either be wastes or commodities, if non-hazardous secondary material is
being released to the environment, it would not be considered a commodity material. All site-
specific practices designed to meet the legitimacy criteria must be documented as outlined in
Section VII.I.
Thus, the final rule will retain the proposed approach that non-hazardous secondary
materials used as a fuel must be managed in a manner consistent with the management of an
analogous fuel (where there is an analogous fuel), or otherwise be adequately contained so as to
prevent releases to the environment.
2. Meaningful Heating Value and Use as a Fuel
132 See 51 FR 21054, June 10, 1986.
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Under the proposed rule, the non-hazardous secondary material must have a meaningful
heating value and be used as a fuel in a combustion unit that recovers energy. In addition to
requesting comment on this criterion, the Agency also requested comment on whether it should
promulgate a bright-line test for determining what is considered a meaningful heating value in an
effort to provide greater certainty to both the regulated community and regulatory officials. For
example, the Agency could establish 5,000 Btu/lb or some other value as the bright-line test. In
addition, EPA requested comment on whether we should identify a Btu/lb cutoff below which
the Agency would declare that the non-hazardous secondary material is being burned for
destruction as opposed to energy recovery. Under this approach, non-hazardous secondary
materials between this lower level and 5,000 Btu/lb (assuming there is a difference) could pass
this criterion provided the facility demonstrates the energy recovery unit can cost-effectively
recover meaningful energy from the non-hazardous secondary materials used as fuels; below this
lower level, all non-hazardous secondary materials that are burned in a combustion unit would be
considered to be burned for destruction and thus a solid waste if combusted.
Comment r3a-D2-11:
Many comments related to the establishment of a Btu threshold claimed that any heating
value is "meaningful." Other commenters expressed opposition to the imposition of a bright-line
test, with one commenter arguing that inflexible Btu/lb cutoffs, as well as "benchmark" values
could prevent utilities and other industries from using alternative fuels to recover energy.
Another commenter echoed opposition to a bright-line test since the use of a non-hazardous
secondary material with any heating value reduces the use of fossil fuels, indicating that any
value for the bright line test would be arbitrary and would result in costly impacts to current
production systems and would stifle technological advancements in combustion unit designs.
Other commenters stated that a minimum heating value, below which the non-hazardous
secondary material would not be considered to have a meaningful heating value will restrict the
marketplace, hamper advances and innovation in energy recovery, and add costs where they are
not justified from an environmental standpoint. If EPA insists on a minimum heating value,
they recommend including a cost effectiveness provision in the rule that would enable facilities
to demonstrate the value of using a material below this threshold.
Commenters from state agencies differed somewhat in their positions regarding the 5,000
Btu/lb threshold. Two state agencies requested that EPA lower the minimum Btu threshold from
5,000 Btu/lb to 4,000 Btu/lb, but another State agency supports the 5,000 Btu/lb threshold. Still
another state commenter recommends that if EPA establishes a lower threshold, below which the
non-hazardous secondary material would not be considered to have a meaningful heating value,
that this value be based on innovation in energy recovery technologies from secondary materials
with lower heating values. Due to the continuing evolution of energy recovery technologies, this
commenter argues that EPA should include a "safe harbor" cut-off level in the rule with a
provision for case-by-case approvals based on the most current proven technology. Another
commenter recommends that if such a lower threshold is established, that it be based on the high
moisture content of wood products that prevent these materials from reaching the minimum
5,000 Btu/lb threshold.
EPA's Response:
After further evaluation, the Agency agrees with commenters that imposition of a strict
bright-line test for minimum heating value could hamper advances and innovation in energy
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recovery, and add costs where they are not justified. The Agency also did not receive persuasive
information that a lower than 5,000 Btu/lb threshold, or entirely eliminating the threshold, would
be an appropriate measure in establishing this legitimacy criterion.
As discussed in the proposed rule, the concept of a 5,000 Btu/lb benchmark was
addressed in the "comparable fuels" rule (63 FR 33781) for hazardous secondary materials. EPA
had previously stated that industrial furnaces (i.e., cement kilns and industrial boilers) burning
hazardous wastes with an energy value greater than 5,000 Btu/lb may generally be said to be
burning for energy recovery; however, hazardous wastes with a lower Btu content could
conceivably be burned for energy recovery due to the devices' general efficiency of combustion.
At the same time, EPA is trying to avoid sham situations where non-hazardous secondary
materials with low Btu value are burned for destruction in lieu of proper disposal.
Thus, the 5,000 Btu/lb limit is a general guideline, which is being adopted in this final
rule, but allows some flexibility. To allow such flexibility for facilities with energy recovery
units that use non-hazardous secondary materials as fuels with an energy content lower than
5,000 Btu/lb, as fired, a person may demonstrate (see Section VII.I Determining That Non-
Hazardous Secondary Material Meets the Legitimacy Criteria) that a meaningful heating value is
derived from the non-hazardous secondary material if the energy recovery unit can cost-
effectively recover meaningful energy from the non-hazardous secondary materials used as fuels.
Factors that may be appropriate in determining whether an energy recovery unit can cost-
effectively recover energy from the non-hazardous secondary material include, but are not
limited to, whether the facility encounters a cost savings due to not having to purchase
significant amounts of traditional fuels they otherwise would need, whether they are purchasing
the non-hazardous secondary material to use as a fuel, whether the non-hazardous secondary
material they are burning can self-sustain combustion, and whether their operation produces
energy that is sold for a profit (e.g., a utility boiler that is dedicated to burning a specific type of
non-hazardous secondary material that is below 5,000 Btu/lb could show that their operation
produces electricity that is sold for a profit).
3. Have Contaminants at Comparable Levels or Lower Than Traditional Fuels.
Under the proposed rule, non-hazardous secondary materials must contain contaminants
at levels comparable to or lower than those in traditional fuels which the combustion unit is
designed to burn. Such comparison is to be based on a direct comparison of the contaminant
levels in the non-hazardous secondary material to the traditional fuel itself. Contaminants were
defined under the proposal as any constituent in non-hazardous secondary materials that will
result in emissions of the air pollutants identified in CAA section 112(b), and the nine pollutants
listed under CAA section 129(a)(4) when such secondary materials are burned as a fuel or used
as an ingredient, including those constituents that could generate products of incomplete
combustion.
The Agency specifically solicited comments on how EPA should interpret the
"comparable to or lower than" standard. For example, should comparable mean the same as or
lower, taking into consideration natural variations in sampling events? Also, instead of requiring
that contaminant levels in non-hazardous secondary materials be comparable to traditional fuels,
the Agency also requested comment as to whether to adopt a "not significantly higher"
standard—that is, contaminants in non-hazardous secondary material used as a fuel in
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combustion units could not be significantly higher in concentration than contaminants in
traditional fuel products.
The Agency also solicited comment on whether the comparison should be based upon the
total level of contaminants, or on the level of contaminants per Btu of heat value, whether the list
of contaminants should be narrower or broader, or whether the Agency should look at other
possible lists. For example, since the Agency is determining which non-hazardous secondary
materials are considered solid waste under RCRA, the Agency could consider the list of
hazardous constituents promulgated in Appendix VIII of 40 CFR part 261, which is a list of
hazardous constituents that have been shown in scientific studies to have toxic, carcinogenic,
mutagenic or teratogenic effects on humans and other life forms. Finally, comment was solicited
as to whether the comparison should be based on an established "bright line" level of
contaminants to those contained in traditional fuels.
Comment r3a-D3-11:
Several commenters addressed the "comparable" standard and the "not significantly
higher" standard. Many of these comments stated that "comparable" should be understood to
mean "similar, higher or lower," not "equal" or the "same." Commenters also requested that
EPA clarify the definition of "comparable" and specifically requested that EPA explain the
concept in greater detail. Of the comments that expressed a preference for either the
"comparable" or "not significantly higher" standard, most preferred the latter, stating that it is
more consistent with the approach used by EPA for hazardous waste in the 2008 DSW Final
Rule and would not discourage beneficial use as much as the "comparable" standard. Two other
commenters argued that instead of using a "not significantly higher" standard, the total
environmental impact of using a non-hazardous material should be considered. For example, a
non-hazardous secondary material may be lower in all contaminants, except one that may be
considered higher than "comparable," but the overall impact is beneficial in terms of less total
contaminants and improved emissions.
Other commenters offered suggestions on how to interpret "comparable," but also on
how to implement the "comparable" standard. For example, "comparable" should refer to the
traditional fuel that would be used if the non-hazardous secondary material was not being burned
or allowed to be burned. Another commenter believed that the "comparable" standard should
only be used as an initial step to determine if the material is a legitimate fuel. For example,
where a material has high levels of a low-impact contaminant or a contaminant is controlled by
the emission control device in the incineration unit, there should be a process to see whether the
material can still be considered a fuel. Similarly, another commenter also recommended using
the "comparable" standard as an initial determination step, with the "not significantly higher"
standard being used as a secondary determination step in some situations. These situations
would primarily be when there is a low-impact contaminant without environmental, health, or
product quality impacts present in concentrations above those found in traditional raw materials.
EPA's Response:
EPA has retained the legitimacy criterion that non-hazardous secondary materials used as
a fuel must contain contaminants at levels that are comparable to or lower than the
concentrations found in traditional fuels which the combustion unit is designed to burn. The
"comparable to or lower than" standard means any contaminants present in non-hazardous
secondary materials that are within a small acceptable range, or lower than, the contaminant in
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the traditional fuel. We have decided to select this standard since we have determined it more
closely reflects EPA's intent with respect to this legitimacy criterion than the phrase "not
significantly higher," which suggests that contaminants can be present in non-hazardous
secondary materials at levels that could reflect discard, especially since we are addressing non-
hazardous secondary materials that are being combusted.
EPA recognizes that combustion is an inherently destructive process, even when energy
is recovered. If a non-hazardous secondary material contains contaminants that are not
comparable to those found in traditional fuels, and those contaminants are related to pollutants
that are of concern at solid waste combustion units, then it follows that discard is occurring.
The contaminants in these cases could not be considered a normal part of a legitimate fuel and
are being discarded, either through destruction in the combustion unit or through releases into the
air. Units that burn such materials are therefore most appropriately regulated under the CAA
section 129 standards for solid waste incinerators.
In response to those commenters requesting further guidance on how to interpret the
"comparable to or lower than" standard, the following examples are provided.
•	A non-hazardous secondary material contains 500 parts per million (ppm) of lead, while
the traditional fuel that would or could be burned in the combustion unit contains 475
ppm of lead. These levels would be considered comparable (since it falls within a small
acceptable range) and thus, would meet this factor. If, on the other hand, the level of lead
in the non-hazardous secondary material was 1,000 ppm, these levels would not be
comparable and it may indicate that the non-hazardous secondary material was being
burned to dispose of the material and that the activity is sham recycling.
•	A traditional fuel contains no detectable amounts of barium, while the non-hazardous
secondary material contains a minimal amount of barium (e.g., 1 ppm). In this situation,
the levels would be considered comparable since it falls within a small acceptable range.
If, however, the barium were at much higher levels in the non-hazardous secondary
material (such as 50 ppm), the levels would not be comparable and it may indicate
discard of the barium and sham recycling
EPA does not agree with those commenters who suggest that in evaluating the constituent
concentrations in non-hazardous secondary materials, that the total environmental impact should
be considered, rather than comparing each constituent to levels found in traditional fuels. Under
such an approach, a non-hazardous secondary material may be judged not to present an
environmental problem when assessing all contaminants together, although significantly higher
levels for one or more contaminants may be present such that they are destroyed or discarded by
means of combustion. This, we have determined, is inconsistent with the concept of discard
under the statute, since it would allow a solid waste to be subject to the CAA section 112
standards, even though the non-hazardous secondary material has been discarded.
We also disagree with commenters who believe that the comparable standard should only
be used as an initial step to determine if the material is a legitimate fuel, particularly in those
situations involving low-impact contaminants. Today's rule does not differentiate low-impact
contaminants from other contaminants, since such an assessment would require a risk analysis of
each chemical. We believe that "comparable" is protective because it ensures that no more
contaminants than those found in traditional fuels are released into the environment. EPA has
already determined that these contaminants pose a threat to human health and the environment.
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Therefore, the Agency will finalize the proposed approach of evaluating all of the contaminants
to ensure that they are present in the non-hazardous secondary material at levels that are
comparable to (or lower than) the concentrations found in traditional fuels that the combustion
unit is designed to burn.
Comment T3a-D3-21:
Many comments discussed whether contaminants, and their concentrations in the non-
hazardous secondary material, should have any bearing on the legitimacy determination for a
given non-hazardous secondary material. Many of these commenters expressed opposition to
using contaminants, and their concentrations in the non-hazardous secondary material, as a basis
for legitimacy decisions. Some of these commenters argued that comparing contaminant levels
would impose an unnecessary burden on emissions sources that are already stringently controlled
under the CAA regulations. Other comments indicated that it would be more appropriate to
compare emissions profiles from the combustion units rather than contaminant levels in the non-
hazardous secondary materials themselves using the CAA section 129 pollutant list and the 112
HAP list. Referring to existing stack testing data and the risk assessment performed by the
cement industry, the commenter states that "it is accepted that organics in fuels do not survive
intact to exit a cement kiln or cause harm to human health and the environment. In addition,
stack testing comparing different fuels (tires, waste-derived fuel, coal, coke, etc) on a single kiln
system under normal operating conditions supports the same conclusion."
States offered a range of comments on this issue. One state contends that using the list of
contaminants in CAA section 129(a)(4) is inadequate because it does not address all heavy
metals or organic hazardous air pollutants. Another commenter argued that while section 112 of
the CAA and Appendix VIII of 40 CFR part 261 would be impractical if parameter testing was
required, the Appendix VIII list of constituents in 40 CFR part 261 would serve as a useful
starting point for evaluating different issues related to those contaminants.
Other commenters suggested that EPA narrow the list of contaminants considered in the
legitimacy criteria. One commenter recommends that those constituents that contribute to the
secondary material's value as a fuel be excluded from the contaminant list. Another commenter
states that the list of contaminants should be limited to only the subset of HAP and pollutants
listed in CAA section 129 that have the potential of being present in the emissions from burning
the non-hazardous secondary materials. Broadening the list and requiring the evaluation and
analysis of more constituents would be unnecessary and a waste of resources. The commenter,
therefore, recommends that the list of contaminants be limited to only those pollutants found in
section 112 of the CAA. Furthermore, this commenter argued that organic HAP do not need to
be included in the legitimacy criteria because the rule is intended to define which non-hazardous
secondary materials are non-wastes, as opposed to which HAP emission standards should be
developed. The commenter further notes that the Boiler and Process Heater MACT will ensure
that the organic HAP are properly controlled. Finally, although not specifically commenting on
the legitimacy criterion for contaminants in the contaminant definition, the Agency received
several comments that pathogens are present in both manure and sewage sludge, and received
specific monitoring data confirming the presence of pathogens in certain varieties of chicken
litter.
EPA's Response:
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EPA is defining the term "contaminant," as constituents that will result in emissions of
the air pollutants identified in CAA section 112(b) and the nine pollutants listed under CAA
section 129(a)(4)) when such non-hazardous secondary materials are burned as a fuel or used as
ingredients, including those constituents that could generate products of incomplete combustion.
EPA has decided that these constituents are appropriate for the comparisons required by this
criterion because these are the contaminants identified in the CAA that are to be considered by
EPA in evaluating which contaminants to establish emission standards. Thus, we disagree with
those commenters who believe that the list should be narrowed, including the commenter who
argued that those contaminants that contribute to the material's value as a fuel be excluded from
the list of contaminants, as well as all organic HAP since they will be burned during the
combustion process. Because EPA is to consider these contaminants as part of the CAA
regulations, they should also be considered in determining whether non-hazardous secondary
materials that contain these contaminants are being discarded, and thus, subject to the section
129 CAA standards.
We also disagree with the commenters who argue that the list is not broad enough
because it does not address all heavy metals, organic hazardous pollutants or pathogens for the
same reasons described above—that is, we should be focusing, in general, on those contaminants
identified in the CAA that EPA will be evaluating to determine whether to establish emission
standards. The Agency also disagrees that Appendix VIII to 40 CFR Part 261 is an appropriate
list for determining which contaminants to consider for the purposes of defining non-hazardous
solid waste, since the purpose of Appendix VIII is to be used by the Agency to make hazardous
waste listing determinations (see 40 CFR 261.11(a)(3)) and the chemicals in Appendix VIII
would not apply to non-hazardous wastes.
Finally, we disagree with those commenters who argue that we should not be considering
the contaminants in the non-hazardous secondary materials themselves as part of the legitimacy
criteria, but, if considered necessary, compare the emissions profiles from the combustion units.
In order for a non-hazardous secondary material to be considered a non-waste fuel, it must be
similar in composition, whereas comparing the emissions profiles between combustion units that
burn traditional fuels and non-hazardous secondary materials only tells one how well the
combustion unit is operating, not what the secondary material is that is being burned. Thus,
while the Agency recognizes that such data can be useful in determining whether or not burning
such secondary materials present a risk to human health or the environment, such a concept says
nothing in terms of whether or not the non-hazardous secondary material is a legitimate non-
waste commodity fuel.
Moreover, when contaminants have no fuel value, and are being destroyed, they do not
have an energy recovery intention. Burning is an inherently destructive process, even if there is
a beneficial use. Therefore, the Agency needs to be cautious in evaluating whether burning a
non-hazardous material for energy recovery, also has a waste destroying intention.
Comment T3a-D3-31:
Some commenters believe the approach of measuring contaminants per Btu was more
scientifically sound, while one commenter argued that comparisons of contaminants should focus
on the loading of contaminants to the process rather than concentrations, which they believe is
similar to measuring contaminants per Btu in ingredients. For example, the commenter indicates
that coal fly ash is utilized in place of bauxite in cement manufacturing. Because coal fly ash
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may contain only 20 percent of the alumina found in bauxite, the process requires five times
more coal fly ash than alumina for a given quantity of cement product. Under this scenario, even
if coal fly ash contains a mercury concentration comparable to bauxite, the loading of mercury to
the combustion unit would be five times higher than that if traditional feedstock was used. The
commenter maintains that the rule should be changed to require a comparison of loading rates
rather than concentrations.
Another commenter argues that any comparison between contaminant levels in the non-
hazardous secondary material and contaminant levels in traditional fuels should consider the
entire characteristics of the material. Some non-hazardous secondary materials may have high
concentrations of some constituents and low concentrations of others, relative to traditional fuels.
Thus, decisions regarding legitimacy will not always be clear cut and the overall characteristics
need to be considered qualitatively. In addition, given the variability of constituent
concentrations in traditional fuels and non-hazardous secondary materials, solid waste
determinations which requires a comparison, should allow for such variability in a reasonable
manner. The commenter supports the method that looks at constituent concentrations (e.g.,
percent by weight or ppm by weight) as a reasonable approach that limits the impact of
variability, whereas using lb/MMBtu compounds the impacts of variability. Since either the
Boiler/Process Heater MACT or CISWI rule will adequately limit emissions from combustion of
non-hazardous secondary materials, there is no justification for evaluating contaminant
comparisons on a heating value basis.
EPA's Response:
The Agency agrees with commenters that a lb/MMBtu approach can serve to normalize
contaminant concentration comparisons across a range of material loading scenarios. At this
time, however, the Agency lacks sufficient lb/MMBtu information for all non-hazardous
secondary materials under consideration. Accordingly, this approach is not being adopted for
today's final rule. As guidance is developed for implementation, a lb/MMBtu approach may be
further considered. Thus, in today's final rule, the assessment of whether the non-hazardous
secondary material has contaminants comparable to traditional fuel products is to be made by
directly comparing the numerical contaminant levels in the non-hazardous secondary material to
the contaminant levels in traditional fuels based on the total level of contaminants, and not on
contaminants per Btu of heat value. This approach is most appropriate because contaminant
information is readily available to the respondent.
The Agency recognizes that variability in constituent levels exist in non-hazardous
secondary materials and traditional fuels, generally based on the source and geographic region
that the material came from. Thus, we agree that such considerations can be taken into account
in a reasonable manner when comparing constituent levels in the non-hazardous secondary
material and the traditional fuel.
We disagree with the commenters that comparison between contaminant levels in the
non-hazardous secondary material and contaminant levels in traditional fuels should consider the
entire characteristics of the material. Such as approach would suggest that contaminants can be
present in the non-hazardous secondary material at levels that are not comparable in
concentration to those contained in traditional fuel products, which could result in contaminants
being combusted as a means of discarding them.
Comment T3a-D3-41:
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Commenters disagreed about whether to implement a bright-line test for contaminants.
One commenter supports the delineation of bright-line contaminant levels that would apply
regardless of the type of traditional fuel burned, while another commenter maintains that it
would not be appropriate to compare contaminant concentrations between non-hazardous
secondary materials and traditional fuels based on a bright line approach. Another commenter
states that the need to classify non-hazardous secondary materials as waste or non-waste may
dictate the need for a bright line test rather than emissions testing from combustion units, given
that emissions controls and limits are established in permits. Other commenters also disagreed
with the establishment of a bright-line level comparison, with one commenter objecting to the
establishment of any other contaminant level comparison, arguing that such a comparison would
provide no benefit to the regulated community and arbitrarily assigns levels of contaminants
without accounting for differences in materials and/or facilities.
EPA's Response:
EPA recognizes that the "bright line" approach may provide greater clarity and
predictability to the regulated community, but that in both cases, the Agency would have to
establish a line for what is acceptable and the line may either be somewhat arbitrary or it may
exclude materials that, if carefully considered, should be considered legitimate. Based on the
comments received on those approaches, we are convinced that they would not be workable. On
the other hand, case-by-case comparisons by each person evaluating this legitimacy criterion can
take into account the wide variety of non-hazardous secondary materials, as well as the
appropriate traditional fuel to which it is being compared. Because this factor must apply to
various different recycling activities and industries, the case-by-case approach is most
appropriate.
E. Comments on Legitimacy Criteria for Ingredients
In the proposed rule, non-hazardous secondary materials used as an ingredient in
combustion units must meet the legitimacy criteria specified in 241.3(d)(2) in order to be
considered a non-waste ingredient. To meet the ingredient legitimacy criteria, the non-hazardous
secondary material must be handled as a valuable commodity, must provide a useful contribution
to the production or manufacturing process, must be used to produce a valuable product or
intermediate, and must result in products that contain contaminants at levels that are comparable
in concentration to or lower than those found in traditional products that are manufactured
without non-hazardous secondary materials.
1. Managed as Valuable Commodities.
Because the criterion "managing as a valuable commodity" for non-hazardous secondary
materials used as an ingredient (storage not exceeding reasonable time frames, manage it
consistent with an analogous ingredient or adequately contain to prevent release) are the same as
those for non-hazardous secondary materials used as a fuel, EPA indicated that if changes are
made to the criteria with respect to those non-hazardous secondary materials that are used as
fuels, we would likewise make the same changes with respect to those non-hazardous secondary
materials used as ingredients. We did solicit comments, however, on whether using these criteria
for managing as valuable commodities (similar to the type of criteria for fuels) are appropriate
for ingredients.
Comment Pa-El-11:
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As discussed in the section on legitimacy criteria for fuels, one commenter suggested that
the criterion that a non-hazardous secondary material be managed as a valuable commodity
(determining if it is managed consistent with the management of an analogous ingredient and
used within a reasonable time frame) is irrelevant because solid wastes are managed in ways
similar to commodities (i.e., solid wastes and solid commodities are stored in piles on the
ground, liquid wastes and commodities are stored in tanks and barrels). Another commenter
requested that EPA provide clarity on managing a non-hazardous secondary material as a
valuable commodity and the kinds of practices a facility must implement to demonstrate that it is
managing the material as a valuable commodity.
EPA's Response:
The final rule will retain the proposed approach that this legitimacy criterion for non-
hazardous secondary material used as ingredients (i.e., that they must be managed as valuable
commodities) will be consistent with that of fuels. As we noted previously, we disagree with the
commenter that solid wastes and commodities are always managed in a similar manner. That is,
commodities, on the one hand, are handled specifically to prevent the loss of the material
because of its value. Solid wastes, on the other hand, when they are not highly regarded for a
beneficial reuse, are often not managed in a way that minimizes the release of the material itself,
but more in a way that protects the surrounding environment from the material. However, we
also know that solid wastes, if not properly managed have created damages to the environment.
Thus, non-hazardous secondary materials used as an ingredient must be managed in a manner
consistent with the management of an analogous ingredient (where there is an analogous
ingredient), or otherwise be adequately contained so as to prevent releases to the environment.
For example, non-hazardous secondary materials that are used as ingredients in cement kilns
must be managed in a manner consistent with the analogous ingredients that these secondary
materials are replacing. An "analogous ingredient" is defined as a manufacturing process
ingredient for which the secondary material substitutes and which serves the same function and
has similar physical and chemical properties as the non-hazardous secondary material. Where
there is no analogous ingredient, the non-hazardous secondary material must be adequately
contained so as to prevent releases to the environment. However, the Agency may provide
further guidance on what we consider to be managed as a valuable commodity.
2. Useful Contribution.
EPA received comments on the five ways the proposed rule states that a non-hazardous
secondary material can add value and usefully contribute to a recycling process (based on criteria
initially developed for hazardous secondary materials): (i) the non-hazardous secondary material
contributes valuable ingredients to a product or intermediate; or (ii) replaces a catalyst or carrier
in the recycling process; or (iii) is the source of a valuable constituent recovered in the recycling
process; or (iv) is recovered or regenerated by the recycling process; or (v) is used as an effective
substitute for a commercial product. The proposed rule stated that we believe that only items (i)
and (v) are specifically relevant to our assessment of whether these non-hazardous secondary
materials provide a useful contribution in combustion scenarios. We requested comment,
however, on whether the non-hazardous secondary materials we are assessing as ingredients can
provide useful contributions in other ways.
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A commenter requested that the EPA remain flexible and acknowledge that there may be
other ways to demonstrate a secondary materials' useful contribution.
EPA's Response:
The Agency was unable to identify, and commenters did not identify any other way a
non-hazardous secondary material could contribute to the recycling process, so the language in
the final rule was not changed. The two ways to determine if the material provides a useful
contribution are sufficiently flexible and will provide for accurate assessments. Thus, the final
rule will continue to maintain that non-hazardous secondary materials contribute valuable
ingredients to a product or intermediate and that non-hazardous secondary materials are used as
an effective substitute for a commercial product will be used to determine if a material provides a
useful contribution as an ingredient.
3. Quantifying an Ingredient's Contribution to Production/Manufacturing Activity.
Not all of the constituents or components of the non-hazardous secondary material have
to make a contribution to the production/manufacturing activity. EPA solicited comments on
whether the Agency should quantitatively define how much of the non-hazardous secondary
material must provide a useful contribution, or alternatively, the quantity of constituents or
components in a non-hazardous secondary material there would need to be before the non-
hazardous secondary material would not be considered to provide a useful contribution.
Comment r3a-E3-11:
Generally, commenters disagreed with the establishment of a quantitative definition as to
how much of a material must provide a useful contribution. One state agency is opposed to a
quantitative definition because the numbers will vary by non-hazardous secondary material.
Similarly, another state commenter also opposed a nationwide definition or percentage
stipulating what constitutes a "useful contribution" because of the different possible reuse
processes that may vary in terms of the amount of material that is deemed useful. One other
commenter also objected to the establishment of any limits, but specifically commented on the
establishment of a quantitative definition. They explain that a given non-hazardous secondary
material can have several useful components, but the ability to use those components is
dependent on the available manufacturing process or technology type. This variation would
make it difficult and inefficient to apply a general quantitative rule of useful contribution.
EPA's Response:
We agree with the commenters that quantifying the amount that all non-hazardous
secondary materials must contribute to a production/manufacturing activity would be a
challenge, if at all possible, given the breadth and depth of ways that non-hazardous secondary
materials may be used as ingredients in combustion processes. As the non-hazardous secondary
materials vary significantly in their character, composition and uses, trying to define useful
contribution quantitatively would not, in our view, be practical. The complexities of defining
"useful contribution" so that it can be determined through a bright-line test, and remain
appropriate across industries, different recycling processes, and a variety of recycled non-
hazardous secondary materials are too great for the Agency to design in a simple and
straightforward manner so as to be used in making such determinations. In addition, legitimacy
determinations are best made on a case-by-case basis, with the facts of a specific situation in
hand. Thus, we have not defined a quantitative amount that non-hazardous secondary materials
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must contribute.
In general, the regulated community should look to typical industry recovery rates in
similar manufacturing processes to determine if the recycling recovery rates are reasonably
efficient in terms of the ingredient making a useful contribution to the recycling process or
product. In addition, it should be noted that EPA would generally look at the quantity required,
the duration, and the extent of processing, and/or the rate of recovery of the overall process, not
the recovery rate of a single step in the process, when analyzing this criterion for legitimacy. For
example, if one step in the process recovers a small percentage of the constituent, but the overall
process recovers a much larger percentage, the Agency would consider the overall efficiency of
the recycling process in determining whether the non-hazardous secondary materials are
providing a useful contribution. This assumes that there is enough of the target constituent or
component present in the non-hazardous secondary materials to contribute meaningfully as an
ingredient to the recycling process.
In addition, the Agency is reiterating its longstanding position that not every constituent
or component in a non-hazardous secondary material would have to contribute to a recycled
product or intermediate or to the recycling process in order for there to be an overall
contribution. Thus, we agree with commenters who raised questions about this and have restated
our position in this preamble to the final rule.
4. Contaminants in Ingredients.
The Agency requested comments on whether we should have a different definition of
contaminants that applies specifically to ingredients. That is, since contaminant comparisons for
the contaminant legitimacy criterion apply to a comparison of products rather than to the non-
hazardous secondary material, we requested comment on whether a different list of contaminants
should apply or whether we should generically define contaminants to be constituents that may
be a concern with respect to the product that is produced.
Comment r3a-E4-11:
Commenters suggested that when comparing the products derived from non-hazardous
secondary materials and traditional raw materials, the Agency be mindful of the fact that the
concentrations of contaminants can vary geographically. In terms of cement production, a few
commenters said that the current stringent product standards effectively keep cement kilns from
using contaminated ingredients. One state supports the use of the same contaminant list for non-
hazardous secondary material fuels and ingredients, but notes that EPA should recognize that
constituent concentrations for a given virgin fuel or feedstock can vary dependent on the
geographic region of where it is produced. Another commenter said that since all processes
differ, the states should be allowed to establish a petition process for ingredients where industry
can demonstrate that the higher contamination in a given non-hazardous secondary material will
not result in harm to human health or the environment (i.e., through either risk assessment or
handling restrictions). Another commenter argued that using the list of contaminants in CAA
section 129(a)(4) is inadequate because it does not address all heavy metals or organic hazardous
air pollutants. Still, another commenter suggested that although the CAA section 112 HAP list
and the list of constituents in Appendix VIII of 40 CFR part 261 would be impractical if
parameter testing was required, Appendix VIII of 40 CFR part 261 would be a good starting
point for evaluating different issues related to those contaminants. Finally, one state agency
recommends the Agency develop a list of currently acceptable non-hazardous secondary
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materials used as ingredients for quick reference and develop guidance to assess materials not on
the list.
EPA's response:
EPA is defining the term "contaminant" to include constituents that may result in
emissions of air pollutants identified in CAA section 112(b) and the nine pollutants listed under
CAA section 129(a)(4)) when such non-hazardous secondary materials are burned as a fuel or
used as an ingredient, including those constituents that could generate products of incomplete
combustion. These constituents are appropriate for the comparisons required by this criterion
because these are the contaminants identified in the CAA that are to be considered by EPA in
evaluating which contaminants to establish emission standards. That is, the contaminants to be
considered in the legitimacy criteria should generally be the same that EPA is to consider in
establishing emission standards. Thus, we disagree with the commenter who argues that this list
is not broad enough because it does not address all heavy metals or organic hazardous pollutants.
Appendix VIII to 40 CFR Part 261 is also not an appropriate list for determining which
contaminants to consider for the purposes of defining non-hazardous solid waste, since the
purpose of Appendix VIII is to be used by the Agency to make hazardous waste listing
determinations (see 40 CFR 261.11(a)(3)) and the chemicals in Appendix VIII would not apply
to non-hazardous wastes. Please see the related response on usage of the Appendix VIII list with
regard to fuels (Section V.D.3).
With that said, the Agency recognizes and agrees with the commenters that variability in
constituents exist between non-hazardous secondary materials based on the source and
geographic region that it may come from. Thus, such considerations can be taken into account in
determining which contaminants to evaluate. Regarding the comments dealing with state
program involvement, EPA's response to these comments is described in Section IX. "State
Authority." Finally, with respect to the commenter who requested that EPA develop a list of
acceptable non-hazardous secondary materials that are used as ingredients for quick reference
and develop guidance to assess non-hazardous secondary materials on this list, we have made
some general conclusions throughout the preamble on which non-hazardous secondary materials
when used as an ingredient in a combustion process would generally meet the legitimacy criteria.
Persons may also refer to the various Materials Characterization Papers that are in the docket to
today's rule. However, each person will need to confirm that such non-hazardous secondary
material ingredients meet the legitimacy criteria and provide documentation, as required in the
CAA rules.
5. Comparing contaminant levels in products.
EPA requested comment on whether, instead of requiring that contaminant levels in
products manufactured from non-hazardous secondary material ingredients be comparable in
concentration than those found in traditional products, that the Agency adopt a criterion under
which contaminants in the product could not be significantly higher than found in the traditional
products that are manufactured without the non-hazardous secondary material.
Comment r3a-E5-11:
A number of commenters disagree with the contaminant comparison criteria for non-
hazardous secondary material ingredients to the final product. One commenter asserts that EPA
should not use the term "contaminant" in connection with the legitimacy criteria for ingredients.
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Instead, the Agency should refer to constituents that may actually be a concern with respect to
the product that is produced. The same commenter also recommends that the "toxics along for
the ride" criterion only should be considered and not required, and that the Agency should adopt
a "not significantly higher" standard. Also, while the Agency should retain the focus of the
"toxics along for the ride" criterion upon products, that criterion should refer to constituents that
may actually be a concern with respect to the products that are produced and should not use the
defined term "contaminant."
Other commenters oppose any limits on contaminants in ingredients. It was argued that
Portland cement is manufactured to meet strict chemical and performance specifications under
such organizations as ASTM and the American Association of State Highway and Transportation
Officials (AASHTO). These specifications dictate, to a large degree, the ingredients that can be
used in cement manufacturing. There are a wide range of raw materials and fuels that can be
used to meet cement manufacturing quality objectives. The levels of contaminants in these
traditional raw materials and fuels can vary significantly. These variations occur within
materials taken from the same source (e.g., single quarry) and also between different sources.
For the purpose of comparing levels of contaminants found in non-hazardous secondary
materials with levels found in traditional products, the non-hazardous secondary material
contaminant should be allowed to be compared to multiple sources of the traditional raw
materials that are available across the market to the facility. Such a comparison should be
allowed regardless of whether or not the traditional material is being used by the facility at the
time of the comparison. Doing so would allow for the variability of constituent levels to be
properly accounted for when going through the comparison process. Variability needs to be
considered because multiple sources of a single traditional material are typically available to a
facility
EPA's Response:
In today's action, EPA is finalizing this criterion as a part of the legitimacy requirement
because it is essential in determining whether a non-hazardous secondary material that is
combusted is in fact being legitimately used or is essentially being discarded—that is destroyed,
in the name of legitimate recycling. EPA is also retaining the requirement that the recycling
process must result in products that contain contaminants at levels that are comparable to (or
lower than) concentrations found in traditional products that are manufactured without the non-
hazardous secondary material. Establishing "comparable to or lower than" contaminant levels
more closely reflects its intent that non-hazardous secondary materials that are legitimately used
must have levels of contaminants within a small acceptable range of those found in traditional
products than the phrase "not significantly higher." (See Section V.D.3 for further discussion of
this issue and EPA's response.) With that said, we agree with those commenters who argue that
there are a wide range of raw materials and fuels that can be used and that the level of
contaminants in these secondary materials can also vary. Thus, for purposes of comparing levels
of contaminants found in non-hazardous secondary materials to traditional products, a person can
make that comparison with traditional raw materials and fuels that come from multiple sources,
provided such sources can be used in the combustion unit. Such a comparison, as the
commenters argue, would account for the natural variability that needs to be considered in
making such a comparison.
With respect to the comment requesting that EPA change the word "contaminant" to
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"constituent" when referring to the legitimacy criteria, EPA is retaining the use of the word
"contaminant" in this criterion as it has been defined in this rule and accurately describes which
individual constituents EPA is seeking to control in this criterion. The selection of that term was
originally discussed in the ANPRM and was chosen since it refers to the constituents in
secondary materials that may be of a concern when burned as a fuel or used as an ingredient.
Finally, EPA notes that industry specifications can be very useful in making a legitimacy
determination and, in particular, in evaluating compliance with this criterion. However, EPA
cannot rely solely on product specifications to cover all possible situations and is including the
contaminant comparison between products as a critical part of the legitimacy requirement.
F. Comments on Non-Waste Determination Petitions
The proposed rule established a non-waste determination process that would provide
persons with an administrative process for receiving a formal determination from the EPA
Regional Administrator that non-hazardous secondary materials that are burned as a fuel in a
combustion unit and have not been managed within the control of the generator, have not been
discarded in the first instance, and are indistinguishable in all relevant aspects from a fuel
product are not solid wastes. This assumes all the criteria for the non-waste determination at
§241.3(c) are met.
Industry and state agencies both submitted a number of comments on the non-waste
determination process included in the proposed rule. While many of these comments supported
the idea of a non-waste determination process in order to include appropriate fuels, many
commenters suggested that the process would be difficult to implement since the requirements
are vague, and too resource intensive. Many commenters did not want the process at all for
opposing reasons; some said it was too lenient in that the process could allow the inappropriate
use of non-hazardous secondary materials, while others said it was unnecessary in that CAA
section 112 third-party combustors should be able to use appropriate comparable fuels without
the inconvenience of a petition process. The specific comments are detailed below. The
overview of the petition process is described in Section VII.G. The petition requirements in
today's rule are found at §241.3(c).
Comment T3a-F-11:
A large number of commenters (including many from state agencies) argued that state
agencies should be provided the authority to make non-waste determinations as part of the
petition process. Some commenters suggested that States be allowed to grant such petitions
under their existing beneficial use programs and encouraged EPA to allow the States' existing
regulatory structures to remain in place. Many commenters expressed a preference for the
approach currently used by States to determine the acceptability of used materials for beneficial
use whereby specific classes of non-hazardous secondary materials considered wastes (in that
State) are assessed and, if determined acceptable, are considered non-waste or exempt from the
State waste licensing, permitting and other requirements. State procedures for beneficial use
determinations vary, some requiring more extensive characterization of materials and uses than
others, and some requiring a degree of processing and others not. Some beneficial use
designations are more stringent than others since they are material-specific.
Many commenters, including state agencies were still concerned that this rule could
jeopardize or interfere with the State beneficial use designations and procedures and requested
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that EPA clearly indicate that today's rule applies only for purposes of determining CAA 129
applicability to non-hazardous secondary materials that are burned for energy recovery. They do
not want today's rule to set a precedent or interfere with their ongoing programs to allow and
encourage the beneficial use of secondary materials which otherwise would be waste.
EPA's Response:
CAA section 129 states that the term "solid waste" shall have the meaning "established
by the Administrator pursuant to the Solid Waste Disposal Act" Id. at 7429(g)(6). Accordingly,
the Administrator (or Regional Administrator) must establish the meaning and make the
determinations, and the states' definition of solid waste would not be applicable for purposes of
the definition of solid waste under RCRA for establishing emissions standards under the CAA.
No federal approval procedures for state adoption of today's rule are included in this rule under
RCRA subtitle D. Although EPA does promulgate criteria for solid waste landfills and approves
state municipal solid waste landfill permitting programs, RCRA does not provide EPA with
authority to approve state programs beyond municipal solid waste landfill permitting programs.
With that said, EPA would like to utilize the expertise and interest residing in the state
beneficial use programs to bolster Agency decisions on non-waste determination petitions. The
Agency may request the assistance of states or may utilize the information and contaminant data
from state beneficial use determinations if it is applicable to the non-hazardous secondary
material when used as a fuel or an ingredient in combustion units. These state beneficial use
programs have been developed to encourage recycling and reuse, provided that the uses maintain
the specified state's acceptable level of risk, protect human health and the environment, and are
managed in accordance with the conditions of the determination.
Generally, when a state beneficial use determination has been granted (thus no longer a
solid waste within that state), it may have chemical and physical properties that are comparable
to the raw material it is replacing or, when incorporated into a product, its use is beneficial to the
final product. Assuming the data to support the beneficial use determination remains available, it
could help support EPA's investigation of the contaminant concentrations for the purpose of
making the legitimacy criteria determination.
State beneficial use determinations and procedures will continue intact for purposes of
State laws, regulations, and programs. Thus, we do not expect that this rule will set a precedent
or interfere with the States' solid waste programs and the States will continue to employ their
procedures to assess and regulate the management and use of non-hazardous secondary materials
for purposes of State laws and regulations. In addition, as we have stated elsewhere in today's
preamble, this rule is limited for purposes of determining CAA 129 applicability for non-
hazardous secondary materials that are burned for energy recovery or as an ingredient in a
combustion unit. Thus, EPA will not be making any determination that non-hazardous
secondary materials are or are not solid wastes for other possible beneficial uses. Such beneficial
use determinations are generally made by the state for these other beneficial uses and EPA will
continue to look to the states to make such determinations (e.g., land application, reuse as non-
waste, etc.).
Comment T3a-F-21:
Commenters indicated that the petition process does not consider potential scheduling
issues regarding compliance with the section 112 Boiler MACT or the 129 CISWI standards.
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Therefore, the non-waste determination petition process should include deadlines for both
petition submissions and rulings from regulators so that the applicant would know which
emission standards requirements they would be subject to—that is, the CAA section 112
standards or the CAA section 129 standards. Some commenters (including many state agencies)
also expressed concern that EPA would not have the resources necessary to address such non-
waste determination petitions within a schedule consistent with State deadlines for their air
permits (e.g., 90 days). In addition, a few commenters questioned the environmental benefits of
shifting the burden of determination to EPA instead of the generators in question.
EPA's Response:
EPA is not imposing deadlines for the petition decisions, either for the submission of
such petitions or on EPA making decisions on petitions that are submitted, since the Agency
believes that before a final decision is made, that the necessary information be submitted, and the
public afforded an opportunity to comment on such draft decisions. Setting a time limit may
make it difficult to make such informed decisions. Nevertheless, EPA commits to work with the
State (where the combustor is located) in an effort to not hold up, to the extent practicable, the
State air permitting process. We recognize that the non-waste determination decision should be
finalized prior to any related State air permit. We would also note that EPA's responsibility for
the petition decisions in the final rule should maintain national consistency, while recognizing
the state's interest and expertise in this area.
Comment T3a-F-31:
If EPA maintains authority for non-waste determinations, commenters request that EPA
Regional offices notify States when requests and determinations are made. In addition, several
environmental groups requested that the public notification be required for any petitions for non-
waste classification.
EPA's Response:
Today's rule outlines the petition process for the Regional Administrator to follow. As
part of that process, the draft decision will be published in local media and will be available on
EPA's website, and thus, all draft decisions will be available to the public for comment. In
addition, although not in the regulations, EPA will inform the State Agency of a petition request
in their states, and work with them, to the extent practicable.
Comment T3a-F-41:
State Agencies recommended that EPA maintain a state or publicly available database of
non-waste determination decisions if the Agency maintains decision-making authority under the
petition process.
EPA's Response:
EPA agrees that it would be appropriate for EPA to maintain a database that is a
compilation of decisions made on non-hazardous secondary material non-waste
determinations. This would allow decisions made in one EPA Region, including the basis for the
decision, to be available to other EPA Regions pertaining to the same or similar non-hazardous
secondary materials and would support national consistency and minimize redundant
efforts. Thus, the Agency expects to put together such a database and will make it available not
only to its Regions, but will also make such a database publicly available.
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Comment T3a-F-51:
Some commenters said States (or non-State Agencies) should be able to submit a non-
waste determination on behalf of the petitioner.
EPA's Response:
As stated in the proposal and in the final rule, states, or private entities, can submit non-
waste determination petitions to the EPA Regional Administrator on behalf of petitioners. They
can petition for a single combustor or a class of combustors (e.g., a specific usage of a non-
hazardous secondary material in a particular state).
Comment T3a-F-61:
Many commenters did not want the petition process included in the rule. Some
commenters said it was too lenient in that the process could allow the inappropriate use of non-
hazardous secondary materials.
EPA's Response:
We disagree with the commenters since the petition process provides a vehicle to
accommodate those instances where it is not apparent that the non-hazardous secondary material
is not discarded and that it complies with the legitimacy criteria and thus, is not a solid waste
under RCRA. Those requirements would be documented in addition to the other petition
requirements. This would provide the needed assurance that it is an appropriate non-waste fuel.
In addition, all draft decisions will be made available to the public (local newspaper
advertisement or radio broadcast and on EPA's website) and the Regional Administrator may
hold public hearings, such that the public will be informed and has the opportunity to comment
and be involved in the process.
Comment T3a-F-71:
Commenters mentioned that the process will be difficult to implement since the
requirements in proposed §241.3(c) are too vague. A few commenters mentioned that they
preferred the clarity in state determinations where they have criteria specific to each secondary
material they regulate or make specific beneficial use determinations, as opposed to this petition
process where all non-hazardous secondary materials have to comply with the same guidelines.
Commenters requested that we create clear guidance on the petition process and on related
implementation.
EPA's Response:
We disagree with the commenters who argue that the petition process is vague and will
be difficult to implement. All petitions that are submitted must clearly explain how the non-
hazardous secondary material has not been discarded and meets the other relevant criteria,
including the legitimacy criteria. All draft decisions will also be subject to notice and comment,
so any particular issues or concerns can be raised for the Agency's consideration. With that said,
the Agency expects to develop additional guidance to assist petitioners in the implementation of
the petition process.
G. Comments on the Other Approaches for Defining Solid Wastes
In addition to the proposed approach, EPA also identified and solicited comment on two
other approaches for defining which non-hazardous secondary materials are solid wastes when
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combusted. One approach, which was called the "alternative approach," was intended to be
broader than the proposed approach, but still consistent, in the Agency's judgment, with RCRA
and relevant case law. Under the alternative approach, non-hazardous secondary materials that
are burned in a combustion unit would be considered solid wastes, unless such non-hazardous
secondary materials would remain within the control of the generator and meet the legitimacy
criteria; in this limited instance, the non-hazardous secondary materials would not be considered
solid wastes. Thus, under the alternative approach, fuels and ingredients that are generated from
the processing of discarded non-hazardous secondary materials would be considered a solid
waste, as well as non-hazardous secondary materials used as ingredients that are combusted at
facilities that are not within the control of the generator. In addition, the alternative approach did
not provide for a non-waste determination petition process, as described elsewhere in this
preamble. The proposed rule noted that this approach could be adopted in a final rule if
warranted by information presented during the public comment period and solicited comment on
all aspects of the alternative approach.
The other approach on which we requested comment was to identify all non-hazardous
secondary materials that are burned in combustion units for energy recovery or as an ingredient
as solid wastes and thus, all non-hazardous secondary materials would be subject to the section
129 CAA requirements. The proposal noted that while the Agency believes there are legal
constraints to taking such a broad approach in defining solid waste under RCRA, we solicited
comment on this approach and specifically requested that commenters provide the basis for their
position, in light of the existing case law on the issue of "discard."
Comment T3a-G-11:
All commenters addressing the alternative approach were opposed to the Agency
adopting such an approach in the final rule. Several commenters argued generally against any
approach that would allow any non-hazardous secondary material to ever be burned as non-waste
fuels or ingredients, regardless of whether or not the secondary materials remained within the
control of the generator. These commenters strongly urged the Agency to adopt a final rule that
considers all non-hazardous secondary materials burned in a combustion unit for energy recovery
or used as an ingredient to be included within the definition of solid waste and therefore, subject
to the CAA section 129 requirements. These commenters argue that non-hazardous secondary
materials that are burned in combustion units fall within the unambiguous meaning of the term
"discarded material," and therefore, both EPA's proposed and alternative approach are unlawful,
as well as arbitrary and capricious.
On the other hand, industry commenters generally contended that the alternative
approach was unacceptable as a matter of law and policy, but for different reasons. These
commenters, who also disagreed with the proposed approach's classification that non-hazardous
secondary materials used as fuels which did not remain within the control of the generator are
solid waste unless granted a non-waste determination, strongly opposed the alternative approach
for many of the same reasons. Of particular concern of the commenters was their disagreement
with EPA that one may not look to a material's transfer between entities to determine whether
the non-hazardous secondary material has been discarded and constitutes a solid waste under
RCRA, a concept which would apply equally to non-hazardous secondary materials being used
as ingredients, as well as to non-hazardous secondary materials used as fuels. In addition, these
same commenters also strongly disagreed with the other approach on which the Agency solicited
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comment—that is, the approach that would characterize all non-hazardous secondary materials
as solid waste when burned in a combustion unit for energy recovery or as an ingredient. These
commenters argued that this would exceed the Agency's authority to regulate secondary
materials that have not been discarded.
EPA's Response:
Although some commenters supported a broader definition of solid waste than described
in the alternative approach, the Agency did not receive any support for the alternative approach,
and has therefore decided not to adopt it in this final rule. Regarding comments that advocated
for all non-hazardous secondary materials burned in a combustion unit for energy recovery or as
an ingredient to be discarded and, thus, solid waste, EPA has replied to this comment above in
Section V. A. The Agency presumes that these commenters would like neither our proposed
approach nor any alternative that allows any non-hazardous secondary material to be burned as
other than a waste.
Regarding industry comments which opposed the alternative approach because its
characterization that all non-hazardous secondary materials that do not remain within the control
of the generator are solid waste, we respond to the issue of transferring non-hazardous secondary
materials off-site in Section V.A.
EPA continues to believe that today's final rule is a reasonable interpretation of the statutory
definition of discard to consider that non-hazardous secondary materials under the control of its
generator that are legitimately burned as fuels are not solid waste, that certain non-hazardous
secondary materials (i.e., scrap tires under the oversight of established tire collection programs
and resinated wood) that are not discarded and are legitimately used as fuels or ingredients are
not solid waste, that non-hazardous secondary materials that are legitimately burned as
ingredients are not solid wastes, and that fuels and ingredients that are produced from the
processing of discarded non-hazardous secondary materials are not solid wastes.
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PART 3b: Other Comments on the Proposed Rule and EPA Responses
A. Proposed Approach
1. Definition of the Term Discard.
Comment r3b-Al-11:
Commenters requested that EPA clarify the following with respect to the definition of
solid waste as included in this rulemaking:
a)	The rule applies only to the RCRA Subtitle D definition of solid waste specific to use as
fuel or ingredients in combustion units as regulated by federal air pollution laws and
regulations;
b)	The rule does not alter the federal definition of "solid waste" found at 40 C.F.R § 257.2;
c)	The federal rule does not preempt any state statutory or regulatory definition of solid
waste;
d)	The EPA should clarify and specify that the fuels may be simultaneously regulated as a
fuel, product, or recycled material pursuant to air pollution control programs, but as a
solid waste by state solid waste programs;
EPA's Response:
The responses for most of these issues are listed in Section "IX. State Authority" under "C.
Clarifications on the Relationship to State Programs:"
a)	State Agencies that responded to the proposal requested further clarification in the final
rule. Specifically, the Federal rule applies only to the RCRA subtitle D definition of
solid waste for determining use as fuel or ingredients in combustion units (as regulated by
the CAA).
b)	Correct, the rule "does not alter the federal definition of "solid waste" found at 40 C.F.R
§ 257.2."
c)	Today's rule does not preempt a State's statutory or regulatory definition of solid waste,
and only applies for purposes of determining which facilities must comply with the CAA
section 129 standards.
d)	Non-hazardous secondary materials (NHSM) may be simultaneously regulated as a non-
waste fuel or ingredient for use in combustion units under §241.3, but as a solid waste by
the State's solid waste programs for state management purposes. Also, see the discussion
in the beginning of this Section (IX. State Authority) in the final rule.
Comment T3b-Al-21:
The commenter urges the EPA to reconsider the definition of "secondary material." EPA
proposes to define the term "secondary materials" 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." Proposed 40 C.F.R. § 241.2, 75 Fed. Reg. at 31,892. This
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definition is much broader than the definition provided in the Final DSW Rule.
In the Final DSW Rule, EPA defined "hazardous secondary material" as "a secondary
material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as
hazardous waste under part 261 of this chapter." 40 C.F.R. § 260.10; 73 Fed. Reg. at 64,757.
The key part of this definition, for purposes of comparison with this proposed rule, is EPA's
inclusion of only spent materials, by-products and sludges as "secondary materials" potentially
subject to regulation.
In contrast, EPA's proposed rule broadens the definition of "secondary material" by
including co-products produced at production facilities, as well as normal manufacturing
intermediates that are proceeding from one step of the production process to the next sequential
step. Unlike the definition of "byproduct" at 40 C.F.R. § 261.1, this proposed definition does not
even recognize that there may be more than one primary product of a manufacturing or
commercial process.
EPA's Response:
EPA does not agree that the definition of "secondary material" in 40 CFR 241.2 is
broader than the definition of "hazardous secondary material" in 40 CFR 260.10. The two
definitions cite different examples but are not fundamentally different. EPA agrees with the
comment that a manufacturing process can have more than one primary product (co-product),
and that it can also produce an intermediate product that goes on to be used to make a primary
product.
Comment T3b-Al-31:
The commenter believes that, in order to be consistent with RCRA and also to be
consistent with the manner in which the term "secondary material" is used in industry, EPA
should either not define the term "secondary material" in its final regulations, or, if it believes
that some definition is necessary, define the term to include "spent materials," "byproducts, " and
"sludges, " as those terms are defined in 40 C.F.R. § 261.1(c).
EPA's Response:
EPA does not agree that the definition of "secondary material" in 40 CFR 241.2 should
include the same examples as the definition of "hazardous secondary material" in 40 CFR 260.10
(e.g., spent materials, by-products and sludges). The two definitions cite different examples but
are not fundamentally different. Sludges, by-products, and spent materials are also considered to
be included in the definition of secondary materials.
Comment T3b-Al-41:
The NEWMOA-member states are concerned with the potential for creation of a dual
regulatory system that will confuse facilities that process or use NHSM. For example, the
proposed rule appears to establish a dual system whereby an NHSM that meets the legitimacy
requirement and is managed by the generator (who maintains control over the NHSM and uses it
as fuel in a combustion facility regulated under Section 112) is not a solid waste; whereby the
same NHSM that is discarded remains a solid waste, resulting in the combustion facility that
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wants to use it being regulated under Section 129 even though the combustion unit may be
identical.
EPA's Response:
The Agency disagrees with the commenter that the non-hazardous secondary materials
rule creates a dual regulatory system, i.e. the same material is non- waste when combusted on
site but is considered to be a waste when transferred off-site. When non-hazardous secondary
material fuels are transferred to another party, the material is generally considered to be
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.133
EPA is not, however, making a sweeping arbitrary assumption in categorizing transferred
secondary materials as discarded. 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. EPA has decided that it is appropriate to be cautious
when deciding that a material transferred for combustion is a waste or not due to the inherent
destructive nature of combustion - even if used for energy recovery.
Between these broad parameters, EPA has examined a number of specific materials,
recycled on-site and transferred 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 resinated wood residuals. Commenters
discussing resinated wood residuals provided specific information regarding how these
secondary materials were managed when they no longer remained within the control of the
generator and the frequency with which these materials were collected and transferred off-site.
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 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).
The preamble to the final rule also discussed the utilization of pulp and paper sludge
outside the control of the generator. In one case presented by a commenter, pulp and paper
sludge generated less than a mile away is loaded into trucks for the short haul to the steam
boilers, dumped into the wood handling system, conveyed to covered storage where it is
contained and burned in the boiler all within the span of several hours. They suggest that this is
a legitimate use of pulp and paper sludge off-site and is, therefore, not a waste. The Agency
agreed that the use of secondary materials off-site (which we assume the commenter means not
133 As noted in the preamble, we do not 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.
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within the control of the generator) is not always indicative of waste activity and would generally
agree that the case provides an example of when secondary materials may be legitimately used as
non-waste fuels by a different company. However, we did not have information generally about
the transfer of those pulp and paper sludge to other companies, including how the material might
be handled as a valuable product, to make a broad determination about pulp and paper sludge
used off-site as a fuel.
In another example, commenters to the proposed rule generally discussed the use of coal
combustion residuals (CCRs) as fuels outside the control of the generator. Commenters provided
legal arguments that case law holds that transfers between companies were irrelevant for
determining whether a recycled material was properly viewed as a solid waste. See Section
V.A.I of the final rule for our response to these legal arguments on the issue of "transfer" as it
relates to the concept of discard. These commenters did not, however, specify how the proposed
rule's presumption that non-hazardous secondary materials that are used as fuels and are
managed outside the control of the generator are solid wastes was inappropriate for CCRs. In
general, the DC Circuit has not accepted such presentations in "broad abstraction." ABR at 1056
Because commenters did not provide sufficient information detailing how CCRs are
managed when transferred outside the control of the generator, we were unable to determine
whether such movement of CCRs outside the control of the generator is, or is not indicative of
discard. As such, the determination is best left to the non-waste petition process, as finalized in
today's rule. As we've discussed, this 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. For a discussion of non-waste determination petitions, see
Section VII. G of today's rule.
Comment T3b-Al-51:
In the rule, contained is defined as meaning the non-hazardous secondary material is
stored in a manner that both adequately prevents releases or other hazards to human health and
the environment considering the nature and toxicity of the material. The word "both" seems to
be an orphan and, with no obvious second clause, should be deleted. The last phrase
"considering the nature and toxicity of the material" does not seem to add value to the previous
language.
EPA's Response:
EPA agrees with the commenter that the word "both" can be deleted from the definition.
The definition now reads: Contained means the non-hazardous secondary material is stored in
a manner that adequately prevents releases or other hazards to human health and the environment
considering the nature and toxicity of the non-hazardous secondary material. Clarifying changes
are also made in the associated preamble discussions. The Agency disagrees with the
commenter that the last phrase "considering the nature and toxicity of the material" does not
seem to add value to the previous language. The nature of the material, particularly whether the
material is solid, liquid or gas, and the degree of toxicity of the material are directly relevant to
the degree of containment required. For example, pulp and paper sludges are contained in
aerated stabilization basins with frequent removal of the biosolids. Proper containment of scrap
tires is important to prevent tire fires that may cause contamination of soil, ground and surface
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water, and air, and may also produce thousands of gallons of oil from the pyrolysis of tire rubber.
Air pollutants from tire fires include black smoke containing toxins such as polycyclic aromatic
hydrocarbons (PAHs), heavy metals, CO, SO2, and NOx.134
Comment T3b-Al-61:
Several commenters argue that when a material is not discarded (it has been purchased
from the generator) and it is the same material that the combustor already burns, the petition
process ought not to be required. Commenters state the petition process should not be required
at all for such traditional fuels, but at the very least should not be required for purchased
secondary material, including biomass, when the same type of material is generated on the
facility site in the first place. At most pulp and paper facilities, secondary material including, but
not limited to, biomass generated on site is augmented with purchased biomass that is identical in
nature. Therefore, if EPA will not remove the artificial distinction between generator and third-
party generated traditionally-used fuels, then EPA should at least remove the petition process for
purchased materials that are similar in nature to those generated on site.
EPA's Response:
The commenter discusses both traditional fuels and non-hazardous secondary materials
combusted outside the control of the generator. As codified in today's rule, §241.2 states that
traditional fuels are not secondary materials and are not solid wastes unless discarded.
Accordingly, the provisions in §241.3 relating to whether materials combusted outside the
control of the generator are wastes or non-wastes, as well as provisions relating to the non-waste
petition process are not applicable to units combusting traditional fuels.
Under the other scenario described by the commenters, a non-hazardous secondary
material is combusted outside the control of the generator by a third party that is identical to a
non-hazardous secondary material that is generated on site by that combustor, such as biomass
that is generated at pulp and paper mills. As discussed in comment/response above (3b-Al-4),
when non-hazardous secondary material fuels are transferred to another party, we generally find
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. EPA has decided that it
is appropriate to be cautious when deciding that a material transferred for combustion is a waste
or not due to the inherent destructive nature of combustion - even if used for energy recovery.
Beyond this broad parameter, EPA has examined a number of specific materials, recycled on-
site and transferred for recycling, and determined whether they are discarded and 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.
As outlined in the comment/response above on dual regulatory systems, the preamble
discussed the utilization of pulp and paper sludges generated less than a mile away and stated
that the material is loaded into trucks for the short haul to the steam boilers, dumped into the
wood handling system, conveyed to covered storage where it is contained and burned in the
134 U.S.EPA Description of Non-Hazardous Secondary Material Events that Resulted in Adverse Environmental
Impacs (Docket # EPA-HQ-2008-0329) September 2009.
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boiler all within the span of several hours. They suggest that this is a legitimate use of pulp and
paper sludges off-site and is, therefore, not a waste. The Agency agreed that the use of
secondary materials off-site (which we assume the commenter means not within the control of
the generator) is not always indicative of waste activity and would generally agree that the case
of the power plant provides an example of when secondary materials may be legitimately used as
non-waste fuels by a different company. However, we did not have information generally about
the transfer of those pulp and paper sludges to other companies to make a broad determination
about pulp and paper sludges used off-site as a fuel.
The Agency makes a similar finding here i.e. that the scenario described may be a
legitimate use of non-waste fuel. However additional information about the transferred material,
including how the material would be handled as a valuable commodity, would be needed to
make a final determination. We also disagree with the commenter that we should remove the
petition process for purchased materials that are similar in nature to those generated on site. The
petition process remains a valuable tool for a facility to address those instances where transfer of
the non-hazardous secondary material to a different company meets the relevant criteria—that
the secondary material has not been discarded in the first instance and is indistinguishable in all
relevant aspects from a fuel product.
2. Processing Requirements.
Comment T3b-A2-11:
Commenters argue that the definition of processing is somewhat unclear, as it appears
that EPA is requiring chemical processing, because no physical processing step would by itself
be sufficient to satisfy this requirement. Based on the definition of processing and the Agency's
description of sufficient processing steps, EPA appears to suggest that actually chemically
processing previously discarded materials is necessary before the Agency will find the
processing requirement is satisfied. The commenter believes this is a serious error in judgment,
which will either result in companies eliminating the use of previously discarded materials or
expending resources and generating new waste streams of chemicals to "process" materials that
already satisfy EPA's legitimacy criteria.
EPA's Response:
Today's final rule codifies "processing" as meaning any operations that transform
discarded non-hazardous secondary material into a non-waste fuel or non-waste ingredient
product. Processing includes, but is not limited to, operations necessary to: remove or destroy
contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying
the material in combination with other operations; chemically improve the as-fired energy
content; or improve the ingredient characteristics. Minimal operations that result only in
modifying the size of the material by shredding do not constitute processing for purposes of this
definition.
We do not agree with commenters that EPA is requiring chemical processing in order to
meet the definition of sufficient processing. In fact, "chemically" improving the as-fired energy
content is only one of the several examples the Agency includes within the definition to illustrate
the types of operations which would meet the definition.
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In order to clarify the definition of sufficient processing, examples of sufficient
processing for other non-hazardous secondary materials include the following: processing of
used oil to produce on-specification used oil and also the construction and demolition (C&D)
wood processed into fuel by sorting to remove contaminants (e.g. lead-painted wood, treated
wood, non-wood materials), and sizing it. In all these instances, the secondary material is being
sufficiently changed, either chemically or physically to produce a non-waste product. While the
extent of processing that may be required may vary for different types of non-hazardous
secondary materials, a sufficient amount of processing must occur to produce a non-waste
product from secondary materials. Chemical processing may be sufficient to render some
NHSMs a non-waste legitimate fuel or ingredient, but is not necessary in all cases.
Comment T3b-A2-21:
One commenter expressed concern that the definition of processing is insufficient and
that its implementation across states will not be consistent. The commenter suggested that a list
of activities that constitute adequate processing would be useful.
EPA's Response:
Given the heterogeneity of NHSMs that may be affected by this rulemaking, it is not
possible to produce a comprehensive list of processing procedures that are sufficient to render a
material a non-waste (provided it meets the legitimacy criteria). The basic principle that must be
satisfied is that the discarded non-hazardous secondary material must undergo a sufficient level
of processing that produces either a new fuel or ingredient product (the definition of processing
is outlined in §241.2). The definition of processing in fact includes a list of operations that
would meet the definition: "Processing includes, but is not limited to, operations necessary to:
remove or destroy contaminants; significantly improve the fuel characteristics of the material,
e.g., sizing or drying the material in combination with other operations; chemically improve the
as-fired energy content; or improve the ingredient characteristics." The definition of processing
also includes examples to illustrate the types of operations that would not meet our definition of
processing, stating, "minimal operations that result only in modifying the size of the material by
shredding do not constitute processing for purposes of this definition."
In order to clarify the definition of sufficient processing further, several examples of
sufficient processing for other non-hazardous secondary materials were discussed in the
preamble to the final rule, including: processing of used oil to produce on-specification used oil
and also the construction and demolition (C&D) wood processed into fuel by sorting to remove
contaminants (e.g. lead-painted wood, treated wood, non-wood materials), and sizing it. In all
these instances, the secondary material is being sufficiently changed, either chemically or
physically to produce a non-waste product. While the extent of processing that may be required
may vary for different types of non-hazardous secondary materials, an important part of the
Agency's position is that a sufficient amount of processing must occur to produce a non-waste
product from secondary materials. We have provided a sufficient list of examples to illustrate
what types of operations would and would not meet our definition of processing.
We also direct the commenter to Section VII.F of the preamble, which discusses the types
of notification and recordkeeping requirements, including documentation as to how the non-
hazardous secondary material would satisfy our definition of processing, that a facility using
discarded secondary materials that have undergone processing to produce a legitimate fuel or
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ingredient are subject to.
Comment T3b-A2-31:
One commenter discussed the unique properties of biomass feedstocks that often
originate as residues from industrial and agricultural processes. The commenter argues that re-
sizing, sorting, and drying should be considered sufficient processing to convert "unadulterated
discarded wood secondary materials" into useful, valued fuel.
EPA's Response:
It is not completely clear what types of secondary materials the commenter is discussing.
We assume that by "unadulterated" the commenter means "clean" and that such materials would
fit within the definition of "clean cellulosic biomass." In today's final rule, clean cellulosic
biomass includes those residuals that are akin to traditional cellulosic biomass such as forest-
derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, sawdust, trim,
and tree harvesting residuals from logging and sawmill materials), corn stover and other biomass
crops used specifically for energy production (e.g., energy cane, other fast growing grasses),
bagasse and other crop residues (e.g., peanut shells), wood collected from forest fire clearance
activities, trees and clean wood found in disaster debris, clean biomass from land clearing
operations, and clean construction and demolition wood. As codified in §241.2, we consider
clean cellulosic biomass to be an "alternative fuel," which is included within the definition of
"traditional fuels."
It is also unclear from the comments how these materials are discarded. As noted above,
we believe that unadulterated wood would be considered an alternative fuel and within the
definition of traditional fuel. As such, to the extent that the commenter is concerned that the
transfer of these materials outside the control of the generator would be indicative of discard
(e.g., from an industrial facility to a sorting facility), today's final rule would not consider such
transferring of traditional fuels to be indicative of discard, as traditional fuels do not have the
potential incentives for sham recycling as do secondary materials.
As it is unclear the types of materials the commenter is concerned with and whether the
materials themselves are in fact being discarded, we refer the commenter to Section V.B.3 of
today's final rule for a response to comments concerning "Other Biomass." We also note that
Section V.A.I and V.A.2 responds to comments regarding both the concepts of discard and
processing, respectively.
Comment T3b-A2-41:
One commenter claims that various secondary material streams that clearly constitute
legitimate fuels will contain incidental materials that cannot practically be screened out. Even
so, incidental materials make no discernable difference to the environmental impact of the fuel
stream, and either have fuel value or do not detract from fuel value. Therefore, the commenter
urges EPA to allow the burning of such incidental materials as part of the fuel stream.
EPA's Response:
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EPA notes that secondary material streams that contain incidental material must pass the
legitimacy criteria described in the final rule. If the "incidental materials" cause them to fail the
legitimacy criteria for contaminants, they are considered solid waste when burned as a fuel or
ingredient. For more information on the legitimacy criteria, we direct the commenter to Section
VII.H of the final rule.
B. Comments on Specific Materials Used as Fuel
1. Traditional Fuels
Comment [3b-B 1 -1 ]:
The final rule should confirm that the examples given in the rule do not constitute an
exhaustive list of all qualifying clean cellulosic biomass materials.
EPA's Response:
The Agency acknowledges that the description of clean cellulosic biomass found in the
definition of traditional fuels (codified at §241.2) may not be an exhaustive list of every material
that may conceivably fall under the clean cellulosic biomass category. The Agency believes,
however, that the definition together with the preamble discussion should provide the basic
guidance needed for the regulated facility to determine whether the material qualifies as a
traditional fuel. In addition, any person can petition EPA under the Administrative Procedures
Act (APA) section 7004 of RCRA and general principles of administrative law for any
modifications to its regulations. Thus, if a person believes that additional materials should be
included as a traditional fuel or alternative fuel, they may petition EPA under that provision to
request such a change through rulemaking. The petition would also need to include a
justification and rationale for the change.
Comment T3b-Bl-21:
Commenters request that EPA include information on the composition of unadulterated
wood in the docket and that data used in defining wood and bark as traditional fuels. Information
located in the Traditional Fuels Paper, identified as coming from Stultz and Kittoo, 1992
describes the components of "bark only" as a fuel and provides no information on unadulterated
wood. Additionally, while the table on page 16 of the docket item 0461.2 contains values for
lead, cadmium, and mercury in wood fuel, there is no data presented in Stultz and Kittoo, 1992
on those three inorganics in either bark or wood. European data on the emissions of these
inorganics indicate that levels of these inorganics in unadulterated wood do not create significant
inorganic emissions during the combustion process.
EPA's Response:
The commenter notes that the lead, cadmium, and mercury estimates for wood fuel do not
appear in the referenced source. EPA acknowledges that this appears to be an error in the
traditional fuels paper and has revised both the paper and the final rule constituent data for
unadulterated wood. This would give the generators and users of the wood information to allow
them (and EPA in an enforcement proceeding) to determine whether the wood is a traditional
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fuel or merely a waste material being burned. The information may also be useful in those cases
where contaminants in a non-hazardous secondary material are being compared to unadulterated
wood as a traditional fuel for purposes of meeting the legitimacy criterion relating to
contaminant levels.
Comment T3b-Bl-31:
EPA should clarify that traditional fuels transferred to a third party are not waste and
therefore do not have to go through the petition process. The proposed rule states that NHSM
are not solid wastes (when combusted) if they remain within the control of the generator and
meet the legitimacy criteria (§ 241.3(b)(1)). A petition process has been established for materials
that do not meet the legitimacy requirements. Presumably, that includes those materials that
would not satisfy the generator-controlled criteria (i.e. where an entity purchases the material
from a third party.) Thus, for material that may be considered a "traditional fuel," but where it is
utilized by an entity that did not generate it, that alone would require it to go through the petition
process despite the fact that it is a traditional fuel and the generator of that same material would
not have to go through the petition process. This is an adverse result that could unnecessarily
adversely affect competition among companies competing for low cost fuels within a highly
competitive industry.
EPA's Response:
The definition of traditional fuels, codified in today's rule in §241.2, states that traditional
fuels are not secondary materials and are not solid wastes unless discarded. Accordingly, the
provisions in §241.3 relating to non-hazardous secondary materials that are used within the
control of the generator, processed into new fuel products from discarded non-hazardous
secondary material or are subject of a non-waste petition are not applicable to traditional fuels.
Comment T3b-Bl-41:
One commenter believes that the EPA properly confirms that traditional fuels, including
"clean" cellulosic biomass, are not solid waste, but should bring greater clarity to the final rule.
Specifically, the EPA should extend the clean cellulosic biomass definition to dead trees and
wood residues.
EPA's Response:
Under the final rule, forest-derived biomass, including green wood, forest thinnings,
clean and unadulterated bark and tree harvestings residuals, is considered an alternative
traditional fuel. The categories would encompass dead trees and wood residues. See Section
VILA of the final rule.
2. Manure
Comment T3b-B2-11:
One commenter notes that among other distinctions in the biomass category of fuels, it is
important to note that within manure there are differences between dry manures and wet
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manures. The commenter suggests that EPA establish a separate category of "non-cellulosic dry
manure biomass fuel" to which the generator control requirement is inapplicable.
EPA's Response:
Although we recognize that there are differences between dry and wet manures, the
commenter does not provide sufficient information that warrants establishing a separate category
of "non-cellulosic dry manure biomass fuel." While the commenter provides a general statement
suggesting separate categories for "wet" and "dry manure, the commenter does not suggest
specific standards or definitions for how best to delineate between the two categories. For
example, it is unclear how the commenter would determine the suggested new categories.
Would it be more appropriate to create categories based on the type of animal manure or by
moisture content or by some other factor? Thus, we do not have sufficient information to create
different categories within the manure discussion. Further, such distinctions are not necessary,
as all manure, regardless of whether it is wet or dry, must meet the legitimacy criteria in order to
not be considered a solid waste.
Further, the commenter does not provide sufficient information to support the argument
that dry manure should be presumed not to be discarded if burned outside the control of the
generator. In fact, the commenter provides no rationale for this position other than to request
that the requirement that non-hazardous secondary materials used as fuels remain within the
control of the generator not be applied to "non-cellulosic dry manure biomass fuel." Unlike the
general information provided in these comments, commenters discussing scrap tires and
resinated wood residuals provided specific information regarding how these secondary materials
were managed when they no longer remained within the control of the generator and the
frequency with which these materials were collected and transferred off-site. Consequently,
today's final rule has determined that these secondary materials should not be considered a solid
waste when transferred beyond the control of the generator, provided the legitimacy criteria are
met. Based on the limited comments provided here, we cannot make a similar determination for
dry manure.
3. Other Biomass
Comment r3b-B3-11:
One commenter states that the EPA is incorrect in determining the fuel legitimacy of
treated wood as a class.
EPA's Response:
In the Final Rule, EPA does not evaluate treated wood as a class. The discussion of
"Other Biomass" in the final rule discusses several types of treated wood separately, with
determinations specific to each type of treated wood discussed.
Comment T3b-B3-21:
Building materials coated with lead-based paint should be classified as solid waste to
allow processing of these materials, including thermal processing. As proposed, the rule
impedes implementation of technologies capable of meeting EPA's proposed emission standards
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and diverting useable building products and leachable lead away from landfills for useful,
legitimate, recycling.
EPA's Response:
We note that discarded C&D-derived wood that is not clean would be considered a solid
waste under today's rule. C&D-derived wood, however, can be classified as a non-waste fuel if
it has been sufficiently processed and meets the legitimacy criteria. C&D-derived wood is
typically sorted to remove contaminants (e.g. lead-painted wood, treated wood, non-wood
materials), and size reduced prior to burning, producing material that likely meets the processing
and legitimacy criteria for contaminants—that is, sufficiently processed. The data provided by
one company demonstrates that C&D-derived wood can be sufficiently processed to meet the
legitimacy criterion for four contaminants, even when these contaminants are compared to
untreated wood concentrations presented in the background document, "Preliminary
Characterization Study - Traditional Fuels and Key Derivatives, Prepared In Support of the Final
Rulemaking -Identification of Nonhazardous Secondary Materials That Are Solid Waste." A
complete determination, however, would also include the comparison of As and Cr
concentrations. As with other NHSMs, C&D-derived wood can contain de minimis amounts of
contaminants and other materials provided it meets the legitimacy criterion for contaminant
levels. We would also note that based on the data presented, C&D derived wood also meets the
meaningful heating value criterion.
Comment T3b-B3-31:
The definition of fuel processing in the proposed rule indicates that chipping and drying
of a wood product would not be sufficient to allow for a "discarded secondary material" such as
logging slash or wood left on a log landing after a harvest to be re-classified as a fuel and not a
solid waste. Commenters request that EPA define re-sizing, sorting and/or drying as sufficient
treatment to convert unadulterated "discarded" woody secondary materials (e.g., silvicultural
residues which have been "discarded" and then chipped) into a fuel.
EPA's Response:
The final rule does not include processing language for this clean wood-based biomass;
as described above. This material is considered a traditional fuel under the final rule. We refer
the commenter to Section VILA of the final rule.
Comment T3b-B3-41:
Many commenters state that all forms of biomass should be considered to be legitimate
fuels and not waste. In particular, clean biomass in the form of bark, sawdust, shavings and trim
generated in peeling and manufacturing operations at wood preserving facilities may serve as an
environmentally friendly fuel. The combustion of this material produces no net addition of CO2
since the CO2 emitted is equal to the CO2 removed from the atmosphere in the creation of wood
fiber. Also, woody biomass is a very clean fuel with very low levels of mercury, chlorine, and
other non-mercury metallic HAPS.
EPA's Response:
We disagree that all forms of biomass should be considered a legitimate fuel as some
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forms of biomass may be discarded and/or not meet the legitimacy criteria outlined in the final
rule. We note, however, that clean cellulosic biomass is considered a traditional fuel under this
final rule. This includes forest-derived biomass (e.g., green wood, forest thinnings, clean and
unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill
materials), corn stover and other biomass crops used specifically for energy production (e.g.,
energy cane, other fast growing grasses), bagasse and other crop residues (e.g., peanut shells),
wood collected from forest fire clearance activities, trees and clean wood found in disaster
debris, clean biomass from land clearing operations, and clean construction and demolition
wood. Such historically managed traditional fuels and alternative traditional fuels are not
secondary materials or solid wastes unless discarded.
Clean biomass is defined as biomass that does not contain contaminants at concentrations
not normally associated with virgin biomass materials. This definition has been modified from
the proposed rule to clarify that biomass that is processed to remove contaminants is considered
to be "clean" biomass.
Comment T3b-B3-51:
Some commenters recommended that urban wood be considered a non-waste legitimate
fuel under the rule, and some suggested that this material is a traditional fuel.
EPA's Response:
In responding, we note that the definition of urban wood differed across some of these
commenters. Some commenters appear to be referring to C&D-derived wood when discussing
urban wood, while others refer specifically to tree trimmings, stumps, and related forest-derived
biomass from urban settings, while others include a mixture of both.
For commenters referring to urban wood as what EPA would describe in the Final Rule
as forest-derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark,
sawdust, trim, and tree harvesting residuals from logging and sawmill materials), this material
falls under the definition of "clean biomass" and therefore, when burned as a fuel, is considered a
traditional fuel. However, in response to commenters referring to C&D-derived wood, this
material is only classified as a non-waste fuel if it has been sufficiently processed and meets the
legitimacy criteria. EPA refers the commenter to the discussion of C&D-derived wood and
forest-derived wood in the Final Rule (Sections V.B.3 and VILA, respectively).
Comment T3b-B3-61:
Commenters argue that unadulterated wood and bark should be considered traditional
fuel and that man-made woods like particleboard, plywood, and oriented strand board (OSB) can
be burned efficiently in combustors as a legitimate fuel. The commenter asserts that the
government has a right and need to randomly spot check wood fuel for hazardous contaminants,
but the small percentage of adulterated wood should not condemn all wood to being checked
before classified as a fuel. The commenter also notes that resizing, sorting and/or drying should
be sufficient treatment to convert unadulterated wood into fuel.
EPA's Response:
We agree with the commenter that unadulterated wood and bark are traditional fuels.
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Both are clean biomass, which is considered a traditional fuel under the final rule. We refer the
commenter to Section VILA of the final rule for our definitions of traditional fuel and clean
biomass. With respect to the man-made wood mentioned by the commenter, these NHSMs must
meet the legitimacy criteria to be considered a non-waste legitimate fuel and, if discarded, must
meet the processing requirements of the rule. As noted in Section V.B.3 of the final rule, sorting
C&D wood to remove contaminants (e.g., lead-painted wood, treated wood, non-wood materials)
and reducing its size prior to burning produces a material that likely meets the processing
requirements of the rule.
Comment T3b-B3-71:
Information on the composition of unadulterated wood should be provided and used in
defining wood and bark as a traditional fuel.
EPA's Response:
EPA provides information on the composition of unadulterated wood in the traditional fuels
paper posted on the docket: "Materials Characterization Paper in support of the Final
Rulemaking: Identification of Nonhazardous Secondary Materials That Are Solid Waste -
Traditional Fuels and Key Derivatives." The composition data presented in this paper helped
inform the development of the final rule.
Comment T3b-B3-81:
Several commenters asserted that "contaminated" construction and demolition materials
and chromate copper arsenate (CCA) treated wood can be processed to be viable fuel stock. In
addition, wood generated at construction and demolition sites has contaminants that are
comparable to traditional fuels.
EPA's Response:
In response to the commenter's concerns regarding the application of the rule to C&D
material, the proposed rule included clean construction wood in the definition of traditional fuels
and the final rule retains this conclusion (see the final rule). However, discarded C&D-derived
wood that is not clean, including CCA-treated wood, would be considered a solid waste under
today's rule. C&D-derived wood also can be classified as a non-waste fuel if it has been
sufficiently processed and meets the legitimacy criteria. C&D-derived wood is typically sorted
to remove contaminants (e.g. lead-painted wood, treated wood, non-wood materials), and size
reduced prior to burning, producing material that likely meets the processing and legitimacy
criteria for contaminants and management as a valuable commodity. As with other NHSM's,
sufficiently processed C&D-derived wood can still contain de minimis amounts of contaminants
and other materials as long as the material meets all of the legitimacy criteria. The commenter
has not provided any data to support the argument that CCA-treated wood included in C&D
debris is sufficiently processed to meet the legitimacy criteria. The commenter is encouraged to
use the non-waste determination process included in today's final rule to obtain a more definitive
response on this issue.
Comment T3b-B3-91:
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Because EPA's plans to consider clean cellulosic biomass as a traditional fuel not subject
to the Proposed Rule are addressed in the preamble to the Proposed Rule rather than the
Proposed Rule itself, some commenters requested that EPA reiterate in the preamble to the final
rule ("Final Rule") that it will treat clean cellulosic biomass as a traditional fuel, and therefore
not subject to the Final Rule.
The commenter also requests that EPA clarify what constitutes clean biomass in the
preamble to the Final Rule, so that it is clear that the drying of otherwise clean biomass material
does not cause it to lose its status as a traditional fuel.
For this reason, the commenter encourages EPA to utilize a definition of clean biomass
similar to that in Section VII.C.5.a of the preamble to the Proposed Rule, which states that clean
biomass:
"must not be altered (either chemically or through some type of production
process), such that it contains contaminants not normally associated with virgin
biomass materials, to ensure that the material being burned does not introduce
contaminants not normally associated with virgin biomass materials. "
75 Fed. Reg. at 31,861.
Accordingly, the commenter respectfully requests that EPA make clear in the preamble to
the Final Rule that it will use this second definition to classify material as clean biomass. In the
alternative, if EPA wishes to use a standard similar to its first definition of clean biomass, the
commenter respectfully requests that all measurements of contaminant concentrations be on a
dry weight basis, thereby allowing wet and dry biomass to be evaluated on an equal playing
field.
EPA's Response:
Clean cellulosic biomass is a traditional fuel and not a solid waste unless discarded
(discarded defined as abandoned, disposed thrown away [see Section IV]). As such, drying of
the material would not impact its status as a traditional fuel. The definition of traditional fuels
and clean biomass has been changed from the proposed rule (see Section V.B. 1). To provide
certainty in the application and the meaning of traditional fuel, the definitions of "traditional
fuel" and "clean biomass" have been added to §241.2, as indicated below.
Traditional fuel is defined in Subpart A §241.2 Definitions of the final rule as follows:
".. .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.
Clean cellulosic biomass includes those residuals that are akin to traditional
cellulosic biomass such as forest-derived biomass (e.g., green wood, forest
thinnings, clean and unadulterated bark, sawdust, trim, and tree harvesting
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residuals from logging and sawmill materials), corn stover and other biomass crops
used specifically for energy production (e.g., energy cane, other fast growing
grasses), bagasse and other crop residues (e.g., peanut shells), wood collected from
forest fire clearance activities, trees and clean wood found in disaster debris, clean
biomass from land clearing operations, and clean construction and demolition
wood. Such historically managed traditional fuels and alternative fuels are not
secondary materials or solid wastes unless discarded."
Section 241.2 of the final rule establishes the following definition for clean biomass:
"... biomass that does not contain contaminants at concentrations not normally
associated with virgin biomass materials."
As indicated above, this description of clean is slightly modified from the proposal. The
definition in the proposal included non-hazardous secondary material that has not been altered
(either chemically or through some type of production process), such that it contains
contaminants at concentrations normally associated with virgin biomass materials. The final rule
also clarifies that clean refers to cellulosic biomass.
Comment r3b-B3-101:
Various commenters argued that there is no justification for considering secondary
materials from cellulosic biofuel/biomaterial products as solid waste. The use of cellulosic fuels
may significantly reduce greenhouse gas (GHG) emissions, but as proposed, the rule would
create a disincentive to use these fuels.
EPA's Response:
We disagree that there is no justification for consideration of secondary materials from
cellulosic biofuel/biomaterial products as solid waste. Like other NHSMs, cellulosic biomass
must meet the criteria for non-waste fuels outlined in today's final rule to be considered a non-
waste legitimate fuel. In some circumstances, cellulosic biomass may not meet these criteria.
For example, if cellulosic biomass is not "clean" as defined in today's final rule, it may include
contaminants at higher concentrations than traditional fuels. Thus, the combustion of this
material may be a waste activity. Clean cellulosic biomass is considered a type of traditional
fuel under this final rule.
Comment r3b-B3-111:
Two commenters expressed concern that the Agency was willing to expand the category
of cellulosic biomass that would not be considered solid waste to include painted and treated
wood.
EPA's Response:
Similar to other NHSMs, painted or treated wood may be considered a non-waste
legitimate fuel under the final rule if it meets the legitimacy criteria and, if discarded in the first
instance, is sufficiently processed.
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Comment T3b-B3-121:
Some commenters asserted that pellets produced at its facilities from cellulosic biomass
meet the legitimacy and processing requirements included in the proposed rule and should be
considered a non-waste legitimate fuel.
With respect to processing, the pelletizing process transforms non-hazardous secondary
biomass materials into a new fuel that also significantly improves the fuel characteristics of the
secondary biomass material. Pellet manufacturers take secondary biomass materials and refine
them into pellets that are uniform in size, shape, moisture, density and energy content. Pellets go
through a full range of manufacturing processes which can involve debarking, chipping, drying,
and hammer-milling. Basically, pellets are produced by putting biomass through a hammer mill
which reduces the particle size yielding a uniform sized biomass fiber. The biomass is then fed
through a pellet mill where it is forced through a die producing a pellet to the required
specifications. The high pressure of the press causes the temperature of the wood to significantly
increase, and the natural lignin in the wood binds the pellet together as it cools. Because the
wood fibers are broken down by the hammer mill, there is little to no difference in the finished
pellets between different wood types. Finally, the finished product is bagged or shipped in bulk
to market.
The commenter maintains that pellets produced from this process meet the legitimacy
criteria. The sale of these pellets to third parties to use as a substitute is indicative of its
management as a valuable commodity. With respect to meaningful heating value, the
commenter notes that dried and pelletized biomass exhibit Btu/lb values well above the 5,000
Btu/lb threshold listed in the proposed rule. Finally, the commenter notes that, with the
exception of the deposition of atmospheric dusts, woody biomass is, for the most part,
considered clean (uncontaminated material). The residues created by processing are also
considered clean unless they have been chemically treated in any manner. The commenter adds
that wood that has been chemically treated is specifically prohibited for use by its densified fuel
certification program, as are feedstock materials with a high level of probability of contamination
(including construction waste debris, pallets, and post-consumer recycled wood). There are,
however, some situations in which contamination can be incidental. Situations that have been
historically observed include contact with sea water (salt water) along coastal regions and
contact with salt in northern regions where chloride based salts are applied to roads for the
purpose of melting ice in the winter months.
EPA's Response:
Clean cellulosic biomass is a traditional fuel and, therefore, does not need to be
processed. Pelletizing the material would not affect the material's status as a traditional fuel.
The commenter mentions, however, that there could be some "incidental" contamination in the
material. Under the definition of clean biomass, if the material contains contaminants at
concentrations not normally associated with virgin biomass materials, the material would no
longer be considered clean, and thus not an alternative traditional fuel as defined in§241.2.
Comment T3b-B3-131:
Some commenters indicated that many of the materials in question are blends containing
biomass such as non-recyclable paper, which have heat value comparable to or greater than
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virgin biomass fuels. To classify these as waste simply because they are not "virgin" will
effectively sabotage the goals and objectives established by Congress, the Administration, and
EPA to move toward more renewable biofuels and reduce dependence on fossil fuels.
EPA's Response:
EPA supports the development of biofuels and technologies to reduce dependence on
fossil fuels. With respect to the NHSM blends referenced by the commenter, the commenter did
not provide sufficient information to determine whether these blends as a whole meet the non-
waste criteria included in today's final rule. Owners and operators of affected facilities
combusting non-hazardous secondary materials that are not considered solid wastes must ensure
that the non-hazardous secondary materials meet the legitimacy criteria in §241.3(d) (and
continue to meet those criteria) when combusted. Non-hazardous secondary materials that no
longer meet these legitimacy criteria would be considered solid wastes and the units combusting
those non-hazardous secondary materials would be considered a commercial or industrial solid
waste incineration (CISWI) unit (see 40 CFR 60.2875).
Comment T3b-B3-141:
One commenter expressed concern over the amount and quality of the data used by EPA.
According to the commenter, EPA should collect more data and perform additional analyses in
order to develop a better grasp of the way in which certain materials are currently used within
and among related industries, particularly the wood products industry. Subsequent to further
data collection and analysis, EPA should consider treating resinated wood and other secondary
wood materials as a "traditional fuel."
EPA's Response:
EPA disagrees with this comment. During the public comment period for the ANPRM
and proposed rules, EPA collected additional data and information on NHSMs currently burned
as fuels and ingredients. Based on this information, other input from stakeholders, and
information compiled in the development of the materials characterization papers, EPA has
assembled much information on the use of various NHSMs. EPA refers the commenter to the
materials characterization papers on the docket for this rulemaking, and the discussion of various
NHSMs in the preamble to the final rule.
4. Scrap Tires
Comment T3b-B4-11:
Certain aspects of the proposed regulation do not take into account several new
developments in the scrap tire market. The regulation deals with two extremes (shred and whole
tires), but excludes, in particular, types of processes like non-combustive reverse polymerization,
where preprocessing is not necessary. Reverse polymerization is a patented process using a
microwave based gasification process, at very low heat. Plants using this process will be
supported by Power Purchase Agreements to purchase the electricity generated on-site from the
gasses released in the microwaving process and the oil condensed from the gas. New regulation
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will severely harm markets for such emerging technology. Consequently, the environmental
benefits of improved technology will be lost.
EPA's Response:
The commenter indicates that reverse polymerization is a new technology that is a
microwave based gasification process. As discussed in the final rule, gasification is a chemical
production process that converts carbonaceous material into a synthesis gas that can be used for
energy production (or as a building block for other chemical manufacturing processes).
Synthesis gas can meet the requirements of a fuel product produced from processing of discarded
non-hazardous secondary materials, provided the syngas has been adequately processed to
remove contaminants.
In general, the Agency would require additional information on new technologies, such
as reverse polymerization to determine whether these materials would be considered wastes or
non-wastes in the context of today's rule. In particular, information would be required as to how
the carbonaceous material (scrap tires) is converted into a synthesis gas or synthesis oil that
meets legitimacy criteria including specific processes for removal of contaminants from the
synthesis gas prior to combustion as a fuel.
Comment T3b-B4-21:
One commenter argues that in order to prevent tire consumers from avoiding recycling
fees, a mandatory environmental fee should be charged for each tire manufactured or installed,
regardless of where the tire was purchased (on the internet or in a shop). This would provide for
disposal of every tire removed.
EPA's Response:
The commenter suggests the establishment of a mandatory recycling fee for all tires. We
note, however, that the purpose of this rule is to determine which non-hazardous secondary
materials are solid waste when combusted. Thus, this comment is outside the purview of this
rule.
Comment T3b-B4-31:
One State Environmental Program (The Commonwealth of Kentucky, Docket
document ID: EPA-HQ-RCRA-2008-0329-1188) originally commented on the ANPRM
that whole waste tires are a solid waste under their state law and did not want a rule that
interfered with their rules and enforcement, but in the response to the proposal said,
"After further reflection, one way to ensure that scrap tires are headedfor
the user instead of a tire pile is use of a full manifest system... where the
individual manifest is returned to the original generator after receipt by
the recycler. In the case of scrap tires, this would usually be the processor
returning the signed manifest or electronic document to the tire retailer.
This system has been used in Texas for over 15 years and provides a
checkable paper trail without an undue paper burden on the regulatory
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system itself. This method means that groups of tires must be separately
tracked through the system, from the tire retailer to the processor and
back again and can be verified by checking copies at a receiving location
(for instance, a cement kiln). "
The Texas Commission on Environmental Quality (TCEQ) considers these non-wastes
for their state program. Please see TCEQ's full comments in the docket under document
ID # EPA-HQ-RCRA-2008-0329-1306.2.
EPA's Response:
EPA has not established a tracking or manifest system for scrap tires or any other
NHSMs under this final rule, but notes that this could be a component of an "Established Tire
Collection Program" (defined at §241.2).
Tires that are collected from vehicles under the oversight of an established tire collection
program are non-waste (see the full requirements at §241.3 (b)(2)(i) of today's rule. The
legitimacy criteria need to be met in order for the scrap tires to be non-waste. In particular, the
material has to also be managed as a valuable commodity (§241,3(d)(l)(i)). That is one of the
components of the legitimacy criteria and based on our assessment, tires or TDF would typically
meet the other two components of the legitimacy criteria (in having meaningful heating value
(§241,3(d)(l)(ii) and comparable contaminants to the traditional fuels they replace
(§241,3(d)(l)(iii)). See the response to comments in the final rule for more detail on meeting the
criteria (Section V.B.5 of the final rule).
Comment T3b-B4-41:
A number of commenters contend that a system whereby dedicated, hired trucking
haulers are contracted by the receiving user, such as a kiln, to bring tires or other NHSMs
exclusively from the generator to the end user, that this should qualify as non-waste tires.
EPA's Response:
Private management and trucking arrangements that have been developed for collection
and transport of scrap tires need to be considered with regard to whether they satisfy the
regulatory requirements of an "established tire collection program," as defined at section 241.2
and described in the preamble.
Comment T3b-B4-51:
Many commenters claim that the proposed rule would make it financially difficult or
impossible to dispose of scrap tires in an environmentally friendly manner. Specifically, the
proposed rule would create barriers to the beneficial use of scrap tires in certain markets that
have traditionally been looked at as fuel uses for tire derived fuel. An industry commenter
believed they would be less able to handle scrap tires, hurting established markets that have been
responsibly built up over the last several decades. The proposed rule would undo the years of
progress that has been made in developing markets for scrap tires. Commenters argue that the
combination of the proposed rule and a difficult economic climate creates a new and very serious
threat to small businesses', employees', and families' well-being.
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EPA's Response:
The answer to these related comments are largely addressed in the response to comments
in the final rule (Section V.B.5).
The commenters are referring to annually generated tires collected from tire retailers and
other auto-related shops. In regard to the specific comment on "the proposed rule would create
barriers to the beneficial use of scrap tires in certain markets that have traditionally been looked
at as fuel uses for tire derived fuel.. .and would undo the years of progress that have been made
in developing markets for scrap tires;" we anticipate that most annually generated tires will be
non-waste through compliance with §241.3(b)(2)(i) or processed in accord with §241.3(b)(4).
The commenters concern is mitigated as a result of the changes made to the final rule concerning
scrap tires that are collected as part of an established tire collection program from vehicles at tire
shops described in yours and related comments. The tires are expected to be able to continue to
be used as a non-waste fuel (per §241.3(b)(2)(i)) similar to how they are managed prior to the
rule (in those instances).
Comments T3b-B4-61:
One commenter argues that if used whole tires are classified as solid waste and the
commenter will be subject to the CISWI standards applicable to energy recovery units (ERUs),
EPA needs to develop a separate subcategory of ERUs applicable to dedicated tire-fired units.
EPA's Response:
This comment addresses the CISWI standards applicable to energy recovery units. The
purpose of today's rule is to identify the requirements and procedures for the identification of
solid wastes used as fuels or ingredients in combustion units under section 1004 of the Resource
Conservation and Recovery Act and section 129 of the CAA. We refer the commenter to the
docket for the CISWI rule for information on this rule (See docket EPA-HQ-OAR-2003-0119).
5. Used Oil
Comment T3b-B5-11:
One commenter indicated that burning off-spec used oil in asphalt, lime, and cement
plants has several advantages relative to combusting natural gas, diesel fuel, or virgin fuel oil at
facilities. In addition, off-spec used oil is more efficient by perhaps 6% than natural gas which
forms water vapors when burnt and therefore delivers less energy. Finally, burning off-spec oil
reduces imports and provides a needed market for material that presently does not have another
market.
EPA's Response:
We recognize that there can be benefits associated with burning non-hazardous secondary
materials that are solid wastes. However, we have determined that off-spec used oil is a solid
waste when burned in combustion devices.
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Comment T3b-B5-21:
Commenters note that the distinction between on-spec and off-spec used oil fuel has
nothing to do with its heating quality. Both categories of used oil fuel will generally have the
same Btu content (approximately 140,000 British Thermal Units per gallon) the equivalent of
virgin petroleum oil if the water content is the same. Commenters also argue that less fuel is
used as there are more Btu's per gallon (more heat) as compared to many other traditional fuels.
EPA's Response:
EPA recognizes that both on-spec and off-spec used oil have a high heating value, but
this alone does not make it a non-waste. See Section V.B.7 of the preamble for a discussion on
when used oil does and does not meet the legitimacy criteria.
Comment T3b-B5-31:
Many commenters argue that used oil can be off-spec (per 40 CFR 279) due to a low
flash point which does not affect the fuel quality nor should one presume low flash fuel releases
CAA pollutants.
EPA's Response:
We are not reopening any of the provisions of 40 CFR part 279 for used oil. Section
279.11 provides the requirements for used oil to be considered on- or off-spec and, as a result,
part 279 places restrictions on the use of off-spec used oil, including for burning. The off-spec
used oil would, therefore, be a solid waste. The current non-hazardous secondary material rule-
-is not separately evaluating each provision of part 279. On-spec used oil, on the other hand,
could be burned with no restrictions, in the same method as oil that is directly refined, and is
considered a valid traditional fuel.
Comment T3b-B5-41:
Several commenters argue that designating used oil as a solid waste will harm the
development and maintenance of the country's transportation infrastructure.
Many commenters expressed concern that the proposed regulation will reduce the
available recycling markets for used oil and unravel the success of the Federal recycling program
without justifying any environmental benefits. Fewer outlets and less incentive to recycle in
today's stressed economy will invite wildcat dumping, thus reducing America's sustainability
efforts.
Commenters mentioned that classifying used oil as a waste does not provide additional
environmental protection or environmental benefits.
The commenters mentioned that the fine-tuned used oil market EPA helped foster is very
effective and they are concerned that this rule would impair that. Due to this effective process
and because used motor oil is cleaner than in previous decades, there exists no justification for
changes in how this used commodity is regulated.
EPA's Response:
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The purpose of this rule is to establish criteria for determining whether non-hazardous
secondary materials are solid wastes when burned as fuels or ingredients. Other policy matters
are not being considered in this context. Regardless, the commenter has not provided data to
show the infrastructure problems. On-spec used oil is considered to be a traditional fuel and not
solid waste. Thus, the demand for this material is likely to continue to be strong, and used oil
processors will continue to collect used oil. For CISWI applicability to units that use used oil,
like space heaters, refer to the response under 3b-B5-5. The current data that we have suggests
that most used oil is on-spec.
The final rule does not change the regulations under 40 CFR 279.
See used oil response to comments in Section V.B.7 of the preamble for additional
information on used oil.
Comment T3b-B5-51:
Many commenters urge EPA to continue allowing used oil to be used as a viable fuel for
small space heaters. Otherwise, the rule would create an undue burden on the environment,
human health and the generators of this oil. For example, the commenters argue that the rule
would result in (1) steep cost increases for small business fast lube operators, (2) the unraveling
of 40 CFR Part 279 such that used oil-fired space heaters could no longer be utilized, and (3)
reduced collection of used oil from do-it-yourself oil changers.
EPA's Response:
EPA is not changing the ability to use off-spec used oil in space heaters, nor changing
part 279 regulations. The effect of this rule would be that space heaters burning off-spec used oil
are burning it as a solid waste and would theoretically be subject to CAA 129 regulations - if
applicable. EPA's regulations under CAA 129 do not apply to space heaters. For additional
details on the applicability of CAA section 129 requirements for space heaters, refer to the
revised CISWI applicability under 40 CFR 60.2025.
Also see the other related responses: The response for comment 3a-B7-9 provides
additional discussion on space heaters. The response in 3b-B5-4 also addresses the implication
for used oil changers and associated costs. The response in 3a-B7-10 discusses the burden of
compliance in general.
Comment T3b-B5-61:
The Federal Standards for the Management of Used Oil already prescribe the specific
types of combustion devices when burning for energy recovery. Kindly refer to Subpart H of the
Standards for the Management of Used Oil and 40 CFR 279.61. We believe our current air
permits meet their stated goal of protecting the environment under the existing Clean Air Act.
EPA's Response:
EPA disagrees that the provisions of 40 CFR 279.61 provide the standards under the
CAA for the burning of off-spec used oil. Those are the devices that may burn off-spec used oil,
but there is no determination under the CAA whether those devices are to be subject to CAA 112
or 129. As has been discussed in the preamble, today's final rule does not change the
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requirements under RCRA regulations. Thus, section 279.61 is not relevant to the CAA
requirements. Persons may burn the off-spec used oil in those facilities described under section
279.61.
Comment T3b-B5-71:
One commenter argues that blending off-specification used oil to produce on-
specification used oil is not feasible for significant quantities of off-specification used oil. For
example, blending is not economically or physically feasible for used oils generated by industries
using metalworking fluids (which are formulated by the manufacturer to contain non-hazardous
chlorinated paraffins). In addition, using an industrial facility located in the Midwest as an
example, the commenter notes that the halogen content of off-spec used oil generated in the
Midwest is much higher than the national average due to the virgin fuel oil formulations in that
region. For the example facility, the observed concentration provided by the commenter was
11,880 ppm. While it is possible to blend that off-spec used oil with on-spec used oil to create
an on-spec blend (with a halogen content just below 4,000 ppm), doing so results in a net
financial loss, given that the on-spec used oil to be blended with the off-spec costs $0.90 per
gallon and the blend would command a price of just $0.65 per gallon.
EPA's Response:
We recognize that producing on-spec used oil from off-spec used oil may be infeasible in
some cases. Off-spec used oil has been determined to be a waste fuel because of the level of
contaminants it contains. In fact, used oil in this case has such high levels of contaminants that
turning it into a marketable product is not economically feasible. Thus, combusting it is
indicative of waste activity rather than legitimate fuel activity. In the event the combustion is for
disposal of unwanted used oil, this is a waste activity and the used oil is a waste.
Comment T3b-B5-81:
As discussed in the preamble, a number of industry comments argue that off-spec used
oil should be considered a product and not a waste under the rationale that used oil is a
commercial chemical product. These comments claim that, since commercial chemical products
are not a solid waste when burned for energy recovery if they are themselves fuels, this principle
should apply to off-spec used oil, even if the oil was originally used for lubrication, or other
purposes, rather than energy recovery. 135 EPA replies to the basic arguments on off-spec used
oil in the preamble.
However, comments also argue that the proposed rule's characterization of off-spec used
135 Comments cite 40 CFR 261.33 and 40 CFR 261.2(c)(2)(B)(ii), which they claimed to represent an "exclusion"
from the subtitle C definition of solid waste for commercial chemical products. They also cite 50 FR at 614, 616n.4
and 618-19 (Jan 4, 1985), as well as 50 FR at 14219 (April 11, 1985), for the proposition that off-specification
commercial chemical products may be burned for energy recovery and not be considered a waste. EPA replies in
the preamble to the general point regarding the hazardous waste regulations. However, the Agency also wishes to
note that there is no "exclusion" from the definition of solid waste for commercial products that are fuels. The effect
of the Agency regulatory and preamble statements on commercial chemical products that are themselves fuels is
merely to state the obvious - that products manufactured in order to burn for energy recovery are simply products
and not wastes.
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oil as a waste is inconsistent with EPA's prior interpretations of what is a fuel, citing the
following four letters and memos from the Agency in support of this contention.
1.	An August 8, 2002 letter from Elizabeth Cotsworth, then Director of the Office
of Solid Waste, to Richard Wasserstrom of the American Forest & Paper Association
(AF&PA), which found that crude sulfate turpentine is a commercial chemical
product which is itself a fuel, and therefore is not a solid waste when it is burned for
energy recovery. Comments claim that EPA based this determination on the
longstanding use of turpentine as a fuel and its fuel value.
2.	An April 21, 2006 memorandum from Ron Fein, Office of Regional Counsel,
EPA Region 1, which states that the test of whether or not burning as a fuel is a
"normal use and/or an original intended use of the product," is to look at either
present commercial use or an established history of use as a commercial fuel source.
The comment claims that used oil, whether on-spec or off-spec, meets both of those
tests, as it is has both present commercial use and an established history of use as a
commercial fuel source.
3.	A December 30, 1992 letter from Sylvia Lowrance, then Director of the Office of
Solid Waste, to Karl Bremer, Chief, RCRA Permitting Branch, EPA Region 5, which
states that butane and propane propellants that have been recovered from aerosol cans
are not solid wastes when burned for energy recovery because butane and propane are
themselves fuels.
4.	A February 19, 1999 letter to Gregory Stephens of the Aaron Oil Company from
then Director Cotsworth, which discusses that petroleum products recovered from
absorbent pads are excluded from the definition of solid waste even when burned as
fuels because of the exclusion for off-specification commercial chemical products.
EPA's Response:
As stated numerous times on the record of this proceeding, EPA is not revisiting its
Subtitle C regulations. Nevertheless, our determination that off-specification used oil is a solid
waste is consistent with our previous interpretations of what is a solid waste under Subtitle C
regulations. In general, the referenced letters stand for the proposition that for commercial
chemical products to not be considered a solid waste when burned for energy recovery they must
themselves be fuels. In essence, we are talking about materials that never become wastes in the
first place - not secondary materials.136 All of the materials discussed in the cited letters (crude
sulfate turpentine, a propellant mixture containing butane and propane, and petroleum products
recovered from absorbent pads) are to be used as fuels. Thus, when these materials are burned
for energy recovery, they had never become secondary materials.
The crude sulfate turpentine was described as "extracted from wood during the pulping
process and collected and sold as a raw material" and can be used to replace "more traditional
fossil fuels." The turpentine is, therefore, one of those materials that, with time and technology,
can be produced as a fuel product.
The April 21, 2006, Region 1 memorandum actually identifies particular commercial
chemical product fuels. Off-specification used oil is not one of them. Moreover, the
136 We would note that "commercial chemical products" as listed or identified in the subtitle C rules only apply to
unused commercial chemical products or off-specification unused commercial chemical products, and not products
that have been used.
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memorandum lays out the requirements to consider whether a commercial chemical product is a
fuel with the same basic reasoning that this regulation uses to decide whether a material is a
"traditional fuel." While the memorandum uses the term "fuel to fuel exemption," the
memorandum is clearly referring to material that is "produced for use as (or a component of)
fuel."137 "Present use or established history" is one element of whether a material is a product
fuel, but it by no means trumps every other factor. Again, a waste may be historically used as a
fuel, but that alone does not make it a product fuel. It would be a waste fuel.
The letter on propane and butane very clearly states that these materials are normally
used as fuels and "when unused" can be burned as fuels. There is no indication that the extracted
propane and butane were contaminated or not treated as a commodity. They were unused
materials that had been manufactured as propellants, were not used, but could now be used as
fuels.
The letter discussing petroleum products recovered from absorbent pads states quite
plainly that the "recovered products are never disposed of' and are used as fuels, which was their
intended purpose. The reference to off-specification commercial chemical products is rather
unclear in the letter. Nevertheless, as we have noted, the off-specification used oil is not an
"unused commercial chemical product" produced as a fuel, so 40 CFR 261.33 does not apply.
Off-spec used oil has been used as a lubricant, coolant, heat (non-contact) transfer fluid,
hydraulic fluid, heat transfer fluid or for similar uses. It was not produced for use as a fuel.
Comment T3b-B5-91:
Certain commenters believe that the metals data from a 2003 study presented in EPA's
Materials Characterization Paper is inaccurate (Used Oil MCP, p. 7), asserting that the data
presented are based on only one sample and are not representative of used oil generally.
EPA's Response:
The Material Characterization Paper for used oil has been revised based on comments.
We have revised it to use additional data from objective tests (representative of used oil)
provided by the commenters.
During the public comment period for the ANPRM and proposed rules, EPA collected
additional data and information on NHSMs currently burned as fuels and ingredients. Based on
this information, other input from stakeholders, and information compiled in the development of
the materials characterization papers, EPA has assembled information on the use of various
NHSMs. EPA refers the commenter to the finalized materials characterization papers on the
docket for this rulemaking.
6. Coal Refuse
Comment r3b-B6-ll:
Commenters expressed concern that the rule, as proposed, may make it difficult to realize
137 As cited in text, above, the provisions cited do not create an "exemption," but merely state a fact that certain
material does not become a waste in the first place.
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environmental benefits associated with reclaiming legacy coal piles. The benefits of reclaiming
this coal refuse include elimination of unstable and eroded steep slopes, elimination of sources of
AMD, reduction of potential sources of pile fires, and reclamation of the land with vegetation.
In addition, EPA's proposed definition of legacy coal as solid waste does not incorporate
the concepts of life cycle assessments and full cost accounting. As noted in an Office of Surface
Mining rulemaking in the Federal Register dated May 1, 2008 (page 24125): "...we believe that
removal of all refuse material would be the most beneficial way to ensure complete reclamation
of the site" DMME estimates the cost to reclaim piles in southwest Virginia to exceed $150
million. Classifying legacy piles as solid waste will inhibit removal of "gob" piles due to
prohibitive cost without offsetting coal sale revenue.
EPA's Response:
The commenter claims that the proposed rule's classification of legacy coal piles as solid
waste will make it difficult to realize environmental benefits associated with reclaiming legacy
coal piles. Regarding coal refuse placed in legacy piles, we acknowledge the significant impacts
that these legacy piles can have on the environment, especially the degradation of water quality
of local watersheds in areas adjacent to these legacy piles. What does and what does not
constitute a solid waste, however, hinges on whether or not the material at issue has been
discarded in the first instance. EPA is constrained by the statutory definition of solid waste
under RCRA. Mere beneficial reuse of a discarded material does not change its status. Wastes
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 it decision on the policy, but must evaluate whether a
secondary material is a solid waste under RCRA.
Regarding the commenter's assertion that the proposed rule does not incorporate the
concepts of life cycle analysis and full cost accounting, the final rule aims to facilitate materials
management to the extent allowed by the statute, as noted in the preamble. Again, we note that
we are constrained by the statutory definition of solid waste under RCRA, which hinges on
whether or not the material is discarded. In the case of coal refuse placed in legacy piles, these
secondary materials have clearly been discarded in the first instance.
As discussed in the final rule, coal refuse is unique from other non-hazardous secondary
materials in that it is a byproduct of fuel production processes and is itself a raw material that can
be used as a fuel. Because coal refuse is essentially raw material coal, which is generated in the
production of fuel and can be used itself as fuel, we find that it would be illogical to require a
different level of processing for discarded coal refuse than is used for virgin coal. Under the
final rule, coal refuse that is recovered from legacy piles and used as fuel that is subjected to the
types operations that are used to process virgin coal, which serve to both increase energy values
as well as reduce contaminants, would meet our definition of processing and would not be
considered solid waste, provided these materials satisfy our legitimacy criteria, which we they
do since currently mined coal is certainly a legitimate fuel and is the same as those from the
legacy piles. While the final rule continues to consider coal refuse that has been placed in legacy
piles to be considered a solid waste as it has clearly been discarded, so long as this discarded coal
refuse is subjected to the same processing as virgin coal and meets the legitimacy criteria, such
processed coal refuse would not be considered a solid waste.
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Comment T3b-B6-21:
The commenter expressed concern that the term "coal fine" is not defined in the proposed
rule. The term could be construed as broad enough to classify as a "waste" and as a "solid
waste" relatively small amounts of coal that are moved by rainfall from a coal-burning unit's
coal storage pile into the storm water management system near the coal storage pile. By design,
these "coal fines," or "residual coal," normally settle out of the water column in the water
management system and then can be collected, returned to the coal pile, and dried for use as fuel
with the rest of the coal in the storage pile. This residual coal has a reduced Btu value due to the
higher soil content than typically exists in mined coal, but the Btu content of this material is still
approximately 8,000 to 8,500 Btu/lb, higher than the average Btu value of mined lignite, which
is approximately 6,300 to 8,300 Btu/lb. This residual coal is used as a fuel in the normal
combustion process to produce electricity and clearly is not "discarded," "abandoned,"
"disposed," or managed in any other way that warrants its description as a "waste" or "solid
waste" under the proposed rule.
EPA's Response:
It appears that the coal fines referenced by the commenter are a natural occurring part of
virgin coal piles that are located at combustion facilities. As such, we agree with the commenter
that these materials are essentially "residual coal" and are not discarded and should not be
considered solid waste.
We note, however, that to the extent that the coal fines are associated with coal refuse
piles, we would view these coal fines similarly to coal refuse in today's final rule. That is, coal
fines that are currently generated as part of coal mining operations would be considered to be an
alternative fuel and not a solid waste. Coal fines that are contained in legacy coal refuse piles
would clearly be discarded and would have to be processed to not be considered a solid waste;
however, to the extent that coal fines are included within coal refuse piles and are processed in a
manner similar to virgin coal, such materials would be rendered non-wastes. This is because all
the coal in the refuse piles should be treated the same and fines are coal.
7. Sewage Sludge
Comment r3b-B7-11:
One commenter notes that dewatered sewage sludge when combusted is clearly a solid
waste in EPA's opinion irrespective of the myriad ways to dewater it. Pelletized sewage sludge
apparently meets EPA's "adequate processing" criteria because the process destroys pathogens
and bacteria. The commenter states that it could be argued that pelletizing is nothing but a more
sophisticated moisture removal process and that EPA's justification for classifying pelletized
sewage sludge as a non-waste fuel suggests that pathogens and bacteria are included in the
legitimacy test for sewage sludge. The commenter would like to understand EPA's reasoning
behind these new and unique criteria, apparently applicable only to sewage sludge, by having
this addressed in the final rule.
EPA's Response:
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To be clear, neither in today's final rule, nor in the proposed rule did we determine that
pelletized sewage sludge is a non-waste fuel. The proposed rule discussed sewage sludge
processed into fuel pellets as an example of adequate processing. However, the proposed rule
also noted that although we consider sewage sludge processed into fuel pellets to meet our
definition of processing, the fuel pellets would still have to meet the legitimacy criteria to be
considered a non-waste fuels. The proposed rule (as well as this final rule) determined that
sewage sludge has contaminant levels that are higher than traditional fuels in use today, and
would not satisfy the contaminant legitimacy criterion. Although both the proposed rule and the
commenter note that the process of turning sewage sludge into fuel pellets destroys pathogens, it
is not clear whether or not the process of turning sewage sludge into fuel pellets would remove
contaminants at levels that would allow the sewage sludge pellets to meet the contaminant
legitimacy criterion. Therefore, we did not make such a determination in the proposed rule and
we do not today, as commenters did not provide additional information on this point.
Further, dewatering alone does not meet our definition of processing. While dewatering
does improve the fuel characteristics of the material, this action is not sufficient to make the
material sufficiently processed into a non-waste fuel as it is generally part of normal waste
management activities (e.g., prior to landfilling, or prior to burning the sludge for disposal in an
incinerator). The commenter states that it could be argued that pelletizing is nothing more than a
sophisticated moisture removal process. However, the commenter does not provide any
additional information to argue this point. As stated in the proposed rule, sewage sludge can be
processed into fuel pellets by biosolid drying. Specifically, raw sewage sludge is moved to
digesters where microbes decompose the organic solids. The resulting biosludge is pressed with
wide fabric belts into sheets and water is removed. This sludge cake is then baked in "tumble-
drying" ovens that destroy the bacteria, removing any remaining water, and rotate the sludge into
the final pelletized product. We continue to consider that these types of operations to meet our
definition of processing, but again note that the resulting fuel pellets must still meet the
legitimacy criteria in order to be considered a non-waste fuel.
The definition of processing is not uniquely being applied to sewage sludge. Today's
final rule codifies "processing" as meaning any operations that transform discarded non-
hazardous secondary material into a non-waste fuel or non-waste ingredient product. Processing
includes, but is not limited to, operations necessary to: remove or destroy contaminants;
significantly improve the fuel characteristics of the material, e.g., sizing or drying the material in
combination with other operations; chemically improve the as-fired energy content; or improve
the ingredient characteristics. Minimal operations that result only in modifying the size of the
material by shredding do not constitute processing for purposes of this definition. We use the
examples listed in this final definition of processing to guide our determination of whether or not
any particular material has been sufficiently processed.
For example, one commenter provided a detailed description of slag processing
procedures. The iron and steel slag material the commenter uses is extracted and dug out of an
old slag bank with bulldozers with rippers and fed into a grizzly feeder and hopper where
oversized steel slag is removed from the process for further size reduction. The slag which
passed through the grizzly is then conveyed over a magnet to remove iron-bearing scrap and then
screened to size the aggregate. Depending on the size of the aggregate, it may need to be
crushed at several stages, rescreened and it again passes over magnets to remove metals for
further separation or non-magnetic metal may be picked from the slag.
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In determining that such operations would constitute sufficient processing, we noted that
the processing of the discarded slag includes not only rigorous operations to extract the slag from
the discard environment, but also the concerted removal of contaminants through magnetic
separation. In other words, the operations described by commenters appear to both remove
contaminants as well as improve the ingredient characteristics of the slag. This is the same
criteria and rationale for not only sewage sludge processed into fuel pellets, but the processing of
any non-hazardous secondary material.
Comment T3b-B7-21:
One commenter expressed concern that the language in the proposed rule appears
to be a permanent determination and that no local entity can self-implement some other,
different site-specific determination with respect to sewage sludge:
"EPA is not proposing to list specific non-hazardous secondary materials
as either wastes or non-wastes in regulatory language, but is rather
specifying the criteria to be used to determine if these secondary materials
are or are not solid wastes. . . However, it is EPA's goal in this proposal
...to indicate, as clearly as possible, which non-hazardous secondary
materials used in fuels or ingredients in combustion units are or are not
considered solid waste based on this criteria. " [31860]
The foregoing language should be clarified to allow local determinations to be made,
including determinations with respect to sewage sludge.
EPA's Response:
It is not appropriate to list all specific non-hazardous secondary materials as either wastes
or non-wastes in regulatory language in recognition of changes in economies, technologies,
markets, and material processes. There could be instances where determinations of whether a
particular non-hazardous secondary material meets the various legitimacy criteria will have to be
based on site-specific information; a national designation that in all circumstances a particular
non-hazardous secondary material is, or is not, a solid waste may not be possible.
As the commenter noted, we also stated in the proposal and continue to maintain that
EPA's goal is to indicate, as clearly as possible, which non-hazardous secondary materials used
as fuels or ingredients in combustion units are or are not considered solid waste based on this
criteria. As evidence of this, we have included several specific non-hazardous secondary
materials (e.g., scrap tires collected and managed under the oversight of established tire
collection programs and resinated wood residuals) in the regulatory text of the final rule where
we have determined that such a designation is appropriate. However, these materials must still
meet the legitimacy criteria in order to not be considered a solid waste (see §241.2).
Further, EPA has tried to make solid waste determinations for as many non-hazardous
secondary materials as possible based on all information available to the Agency in order to
establish the appropriate MACT floors for the respective final rules promulgated today under
sections 112 and 129 of the CAA as well as to provide clarity for the regulated community.
For the reasons stated in the preamble to the final rule, we have determined that sewage
sludge when used as a fuel in a combustion unit is a solid waste. In short, this determination is
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based on our findings that sewage sludge would be unable to meet the contaminant and
meaningful heating value legitimacy criteria. (For a full discussion regarding sewage sludge, see
Section V.B.10 of today's final rule).
Today's final rule is self-implementing in nature in that owners and operators of affected
facilities combusting non-hazardous secondary materials that are not considered solid wastes
must ensure that the non-hazardous secondary materials meet the legitimacy criteria in section
241.3(d) (and continue to meet those criteria) when combusted. Under this framework, owners
and operators can make a non-waste determination for an NHSM burned as a fuel or ingredient if
they are able to demonstrate that the material meets the legitimacy criteria and, if previously
discarded, has been sufficiently processed to create a legitimate fuel or ingredient. With respect
to sewage sludge, EPA outlines several reasons why it considers sewage sludge to be a solid
waste when combusted in the final rule). Any determination that sewage sludge is not a solid
waste must address each of these issues.
We also direct the commenter to Section VII.I of the preamble, which discusses the types
of notification and recordkeeping requirements, including documentation as to how the non-
hazardous secondary material meets the legitimacy criteria, that a facility using these secondary
materials as fuels that remain within the control of the generator are subject to.
Comment T3b-B7-31:
One commenter argued that incineration is an important option for sewage sludge
management. According to the commenter, POTWs have a limited number of options available
for management of sewage sludge materials, and they are under constant pressure to find a
workable approach that fits their operational needs and budget. The commenter believes that the
incineration of sewage sludge is a cost-effective and safe management option. If EPA designates
sewage sludge as a solid waste and requires sewage sludge combustion units to comply with
CAA §129, many POTWs lack the financial ability to upgrade their incinerators or will be forced
to shift to other, more costly, options.
EPA's Response:
The comment admits that the sewage sludge is being incinerated - burned for destruction.
Therefore, CAA section 129 is the appropriate regulatory provision. This seems to comport with
EPA's position that sewage sludge is burned not for energy recovery, but for destruction. We
also note that our rule does not preclude the burning of sewage sludge; however, as we have
determined that sewage sludge is a solid waste, any combustion unit burning sewage sludge must
be subject to the requirements of CAA section 129.
We understand that compliance with Section 129 may lead to increased costs for POTWs
that burn sewage sludge. We also note that any potential costs that may impact POTWs,
including upgrading emissions control equipment or shifting to other management options, are
considered in the Sewage Sludge Incinerator Rule being promulgated under section 129 of the
CAA. For more information on this related rulemaking, see Docket ID No. EPA-HQ-OAR-
2009-0559.
Comment T3b-B7-41:
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Some commenters argue that sewage sludge is managed as a valuable commodity as is
outlined in the legitimacy criteria in the proposed rule. They claim that sewage sludge is not
stored for an unreasonable amount of time and it is adequately contained to prevent releases to
the environment. Additionally, sewage sludge is never discarded prior to its combustion in an
SSI or other energy producing incineration unit. Other commenters propose that sewage sludge
satisfies the valuable commodity criteria because historically it has been beneficially used for its
nutrient and organic value in land application which demonstrates its value as a commodity.
EPA's Response:
EPA finds that sewage sludge, when burned, is a solid waste. Even if the sludge is
managed as a valuable commodity, it still is unable to meet the legitimacy criteria for
contaminants and meaningful heating value and therefore would still be considered solid waste.
EPA has emphasized during this rule that it is not examining the solid waste status of any
material other than that used in a combustion unit. EPA is articulating a framework for
determining whether a non-hazardous secondary material is or is not a solid waste when burned
as a fuel or ingredient in a combustion unit. Moreover, even if a secondary material has value in
applications other than combustion, that is not relevant to the determination whether the material
meets the legitimacy criteria for combustion.
Comment T3b-B7-51:
One commenter notes that EPA acknowledges gasification processes, which produce
syngas, to be an adequate process for producing a non-waste fuel product. As such, EPA
acknowledges that sewage sludge would be a legitimate fuel and not a solid waste when
processed by gasification. The commenter recommends that EPA modify its definition of the
gasification system to include the close-coupled variety, which does not require syngas cleaning
to remove impurities.
EPA's Response:
Unfortunately, the commenter did not provide sufficient data and information to
determine if this close-coupled gasification system would constitute sufficient processing. The
commenter noted that our discussion of gasification includes the provision that the syngas has
been adequately processed to remove contaminants. As the close-coupled gasification system
referenced by the commenter does not require the syngas to be cleaned and impurities removed,
it is unclear whether the resulting syngas would contain contaminants at levels comparable to or
less than traditional fuels, which would make the resulting syngas from such processing unable
to meet the contaminant legitimacy criterion and therefore a solid waste.
The "Detailed Discussion and Rationale for Today's Final Rule" section of the preamble
also describes how the legitimacy criteria are met. In all situations in which an NHSM is
determined to be non-waste, it must meet the legitimacy criteria per §241.3(d). The processing
requirements are established in §241.3(b)(4) and "processing is defined in §241.2."
C. Comments on Specific Materials Used as Ingredients
Comment T3b-C-11:
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In response to EPA's request for comment on slag processing in the proposed rule, one
commenter provided a detailed description of slag processing procedures. The iron and steel
slag material the commenter uses is extracted and dug out of an old slag bank with bulldozers
with rippers and fed into a grizzly feeder and hopper where oversized steel slag is removed from
the process for further size reduction. The slag that passed through the grizzly is then conveyed
over a magnet to remove iron-bearing scrap and then screened to size the aggregate. Depending
on the size of the aggregate, it may need to be crushed at several stages, rescreened, and passed
over magnets again to remove metals for further separation, or non-magnetic metal may be
picked from the slag. Finish product is conveyed to individual stockpiles depending on quality,
metal content, and size gradation for loading into customer tractor trailer dump trucks for use as
construction aggregate or possible use in a combustion process to make cement. Except for the
metal separation process, comparable processes are employed at natural aggregate pits or
quarries.
EPA's Response:
Today's final rule codifies "processing" as meaning any operations that transform
discarded non-hazardous secondary material into a non-waste fuel or non-waste ingredient
product. Processing includes, but is not limited to, operations necessary to: remove or destroy
contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying
the material in combination with other operations; chemically improve the as-fired energy
content; or improve the ingredient characteristics. Minimal operations that result only in
modifying the size of the material by shredding do not constitute processing for purposes of this
definition.
Regarding the description provided by the commenter on the extent of processing
conducted on slags that have been previously discarded, it appears that this level of processing
would meet our definition of processing, as the processing includes not only rigorous operations
to extract the slag from the discard environment, but also the concerted removal of contaminants
through magnetic separation. In other words, the operations described by commenters appear to
both remove contaminants as well as improve the ingredient characteristics of the slag.
Assuming the processed slag meets the legitimacy criterion for ingredients, the slag resulting
from the processing operation would constitute a non-waste ingredient and would not be
considered a solid waste.
D. Comments on Legitimacy Criteria for Fuels
Comment r3b-D-11:
Many commenters assert that the proposed rule's legitimacy criteria are more stringent
than those for hazardous waste regulated under RCRA Subtitle C and states that there is no
defensible legal or logical basis for proposing legitimacy criteria recycling for non-hazardous
materials that are more stringent than legitimacy criteria for hazardous materials. Commenters
claim that non-hazardous secondary materials by definition do not present "substantial"
environmental dangers. The relatively moderate burdens of non-hazardous waste regulation do
not create incentives for sham recycling. Finally, materials will generally be burned in tightly
regulated combustion processes, whether they are classified as wastes or as fuels, and may well
be subject to tighter pre-combustion standards as fuels than as wastes.
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All these factors point toward a legitimacy framework that gives more weight to
promoting recycling than is the case for hazardous substance regulation. Yet EPA proposes to
regulate the reuse of these non-hazardous materials more tightly than it regulates the reuse of
hazardous materials. EPA offers no factual justification for this approach.
EPA's Response:
EPA considered these points in various parts of the final rulemaking, in particular, see the
response under 3a-Al-13 which also applies to this comment. In addition see Section III,
Section IV, and Section VIII.C of the final rule.
Comment T3b-D-21:
It is not clear whether all three legitimacy criteria have to be met to qualify the fuel as
legitimate or if any single criteria is sufficient. The rule should be explicit if "ANY of the
following criteria" is sufficient, or if "ALL of the following criteria" must be met. Meeting any
of the three criteria should be sufficient to exempt the fuel from classification as a solid waste. A
requirement to meet ALL three criteria would amount to triple jeopardy. If a fuel is managed as
a valuable commodity it implies that such fuel has a "meaningful heating value" to the user. To
require all three criteria to be met is redundant and unfair to the user. Likewise, the issue of
"contaminant levels" has been addressed fully by the facility air permit. Simply put, the air
permit will not allow the use of any contaminated material which is likely to exceed the permit
limits of the facility.
EPA's Response:
The final rule states that all legitimacy criteria must be met in order for a fuel or
ingredient to be considered a non-waste. The legitimacy criteria are a necessary component of
this rule since they are designed to ensure that non-hazardous secondary materials are not being
combusted as a means of disposal but rather for their use as an ingredient or fuel. If the
combustion unit is not using the NHSM to replace a regular fuel, but is combusting in order to
discard unwanted items, that constitutes disposal and that would be a "solid waste" NHSM.
Management prior to combustion does not automatically indicate that the secondary
material has meaningful heating value. Moreover, the purpose of this rule is to identify under
RCRA which non-hazardous secondary materials are solid waste when burned. Permit limits are
specifically designed to deal either with wastes or non-wastes. They are irrelevant to determine
whether material is a waste or not in the first instance.
Comment T3b-D-31:
One commenter recommends that EPA establish a representative minimum value for
meeting the heating value legitimacy criteria. This minimum value should be based on an
assessment of non-hazardous secondary materials that are commonly used as fuels. The
commenter notes that EPA's proposed minimum value of 5,000 Btu/lb (as received) is not
representative of some of the fuels that are cost-effectively burned within industry, including
pulp and paper sludge, recycled fly ash, and some waste coals.
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EPA's Response:
The 5,000 Btu/lb limit is a general guideline, which is being adopted in this final rule, but
allows some flexibility. To allow such flexibility for facilities with energy recovery units that
use non-hazardous secondary materials as fuels with an energy content lower than 5,000 Btu/lb,
as fired, a person may demonstrate (see Section VII.I Determining That Non-Hazardous
Secondary Material Meets the Legitimacy Criteria) that a meaningful heating value is derived
from the non-hazardous secondary material if the energy recovery unit can cost-effectively
recover meaningful energy from the non-hazardous secondary materials used as fuels.
Please see additional details about this discussion in the response to comments final rule
in Section "V.D.2. Meaningful Heating Value and Use as a Fuel."
Comment T3b-D-41:
Regarding the contaminant legitimacy criterion, one commenter seeks clarification from
EPA as to whether EPA intends for facilities to test for 190 pollutants in each secondary material
and traditional fuel. The commenter argues that this expectation is unrealistic and will result in
non-compliance and large economic cost.
EPA's Response:
Facilities will not be required to test for all possible contaminants (189 HAPs under CAA
112 and 9 pollutants under CAA 129) and can instead use their expert knowledge of the
secondary materials to determine if testing is necessary to ensure compliance with this aspect of
the rule. In the case of an enforcement action, facilities may be required to explain to EPA their
reasoning in determining which contaminants would be of possible concern for a secondary
material.
The testing expectations expressed here comport with various hazardous waste testing
protocol.
Comment T3b-D-51:
Commenters believe that the rule should include a qualitative comparison of the
incremental risk presented by use of alternative fuels that may contain higher contaminant levels.
Some alternative fuels may contain higher concentrations of some contaminants, yet lower
concentrations of others. This should be taken into account when determining whether a
materials exhibits "comparable" levels of contaminants. In some instances, the fractional heat
input of the alternative fuel may be a small percentage of the total heat input to the combustion
unit, such that the incremental emissions may be nearly indistinguishable from the emissions of
solely traditional fuel. This may be especially true in the circumstance where a high-efficiency
control device is in place on the combustion unit. The incremental increase in emissions may be
of such a small magnitude to be essentially inconsequential.
EPA's Response:
This comment implies that the contaminant legitimacy criterion should consider the
emissions profile of NHSMs rather than constituent concentrations in these materials. We
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disagree. In order for a non-hazardous secondary material to be considered as a non-waste fuel,
it must be similar in composition, whereas comparing the emissions profiles between combustion
units that burn traditional fuels and non-hazardous secondary materials only tells one how well
the combustion unit is operating, not what the material is that is being burned. Thus, while the
Agency recognizes that such data can be useful in determining whether or not burning such
material presents a risk to human health or the environment, we find it says nothing in terms of
whether or not the non-hazardous secondary material is a legitimate non-waste fuel.
E. Comments on Legitimacy Criteria for Ingredients
Comment Pb-E-ll:
The commenter states that the definitions section of the rule should explicitly state that
"ingredients" are associated with combustion units, and not with other processes. The proposed
rule explicitly addresses secondary materials used as fuels or ingredients in combustion units.
We believe that describing an ingredient in the proposed rule as "ingredient used in combustion
unit" is a significant advantage and suggest that a definition of ingredient be added to the
definitions section of the rule to assure awareness of the limitation to ingredients used in
combustion units. As we understand, the proposed rule does not apply to non-combustion
processes, so feedstocks for non-combustion processes are regulated as solid wastes under
Wisconsin's regulations. We believe that the proposed rule will avoid causing impacts to
Wisconsin's beneficial reuse program (NR 538, in our solid waste code series), as long as the
word "ingredients" in the proposed rule continues to be limited to "ingredients used in
combustion processes".
EPA's Response:
Section 241.3(b)(3) explicitly refers to "ingredients used in combustion units." The
Agency disagrees with the commenter that additional clarification in the rule is needed. EPA
also notes that the determination in this rule regarding materials in combustion units does not
make any statement regarding what a state regulation does. Whether a state regulation considers
a material a waste, or note, is not relevant to this rule.
F. Comments on Non-Waste Determination Petitions
Comment T3b-F-11:
The commenter recommends that EPA consider establishing "presumptive
determinations" as part of the non-waste determination process for certain materials that EPA
has universally deemed to be "non-solid wastes." These presumptive determinations might
include a generic description of the material and its application and perhaps a range of acceptable
HAP concentrations. EPA could develop and refine these presumptive determinations on an
ongoing basis using the information they receive in the petition process.
EPA Response:
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EPA will record petition decisions on specific NHSMs in an effort to make subsequent
petition decisions on similar NHSMs more efficient. EPA intends to also record EPA's
decisions and supporting materials regarding NHSM non-waste determination petitions, and will
make the information available on the internet for reference in future decisions.
Due to the wide range and variability in non-hazardous secondary materials and their use
as fuels or ingredients, the Agency has not codified a presumptive determination for specific
broad categories of materials within the petition process in the final rule.
Today's rule does decide that scrap tires and resinated wood may be transferred to third
parties under certain conditions and be non-waste without undergoing the petition process (See
241.3(b)(2) in today's rule). The preamble to the final rule also discusses how EPA may make
other non-waste determinations for specific categories of materials including OCC rejects and
pulp and paper sludge (see Section V.B) that can be used in petition determinations.
In regard to determinations made outside the petition process, refer to the response under
comments in the petition section (comment 3b-Il-l).
Today's rule does codify the definition of traditional fuels which reduces inappropriate
petition applications for traditional fuels.
Comment T3b-F-21:
The commenter requests input on the timetable for cessation of combustion of solid waste
fuels. Regardless of the provisions in the final rule, there must be an avenue and a timetable by
which a source can stop accepting a given fuel if the fuel is classified as a solid waste, thus
subjecting the source to the CISWI rule. This would allow a source to make an economic
decision and allow it to stay within the boiler rules that have always applied.
EPA's Response:
Regarding the commenter's request for input on the date by which facilities must stop
burning NHSMs considered to be solid wastes to avoid CISWI requirements, we refer the
commenter to the CISWI rule (EPA-HQ-OAR-2003-0119).
G. Comments on Implementation of the Rule
Comment T3b-G-11:
One commenter requests that the EPA establish a viable process of updating the rule and
the legitimacy requirements for fuels and ingredients to take into account changes in
technologies, prices and the environmental costs of using primary materials.
EPA's Response:
EPA recognizes that practices regarding the use of different secondary materials are
changing as technology continues to advance and finds that the legitimacy criteria give the
regulated community enough flexibility to use NHSMs as non-waste fuels, as technologies and
markets change over time. The Agency has designed the Final Rule to be self-implementing to
give the regulated community the flexibility to adapt to these changes and foster the development
of new technologies. As mentioned several places in the preamble (see sections V.D.2 on
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meaningful heating value and V.F on the petition process) the Agency plans to develop and issue
guidance on the rule to assist the regulated community in implementation of rule provisions.
Comment T3b-G-21:
Many commenters expressed concerns with the EPA not promulgating the final NHSM
rule prior to the Section 112 and 129 standards that the Agency is developing in conjunction with
this rulemaking. The commenters believe that the development and implementation of the air
rules relies heavily on the determination of what materials are considered legitimate non-waste
fuels and ingredients and which are considered solid waste when burned for these uses. Without
that initial determination, it will be impossible for owners/operators to understand the effect of
the rules on their facilities, to make economic decisions as to which fuels to use, to install the
appropriate pollution control equipment, and to conduct test burns in a timely manner. The
commenters question whether a smooth implementation is feasible without promulgating the
NHSM rule well before the suite of Clean Air regulations.
EPA's Response:
We concur that the rules being finalized under the CAA are interrelated to the NHSM
rule. While we would prefer to have that flexibility for the CAA rules to be finalized after this
rule is finalized for the reasons stated by the commenter, the CAA rules are under a court ordered
deadline to promulgate their rules. The developments of the NHSM final rule and CAA final
rules have been closely coordinated throughout the rulemaking process.
Comment T3b-G-31:
State agencies and environmental groups expressed concern that the proposed rule
establishes a self-determination process that will impose significant challenges to inspection and
compliance staff at the local and state level. Specifically, the rule includes no mechanism that
ensures a facility is appropriately determining whether the material is a secondary material or a
solid waste. Nor is there a mechanism to confirm and approve by the state or federal agencies.
EPA's Response:
EPA recognizes the issues for the inspection and compliance staff at the state and local
level and strove to minimize the resource burden while providing a vehicle to enforce
combustor's compliance with the criteria established in this rule. The Boiler MACT rule, Boiler
Area Source rule, and CISWI rule in conjunction with this rule provide that assurance for
appropriate implementation by the combustors. Specifically, the owners or operators of
commercial or industrial facilities that combust materials that are not traditional fuels are
directed to the recordkeeping and reporting requirements in CAA section 112 regulations for
boilers (§63.7530, 63.7555 and 63.11225(c)(2)(ii) [for area sources]), and the CAA section 129
regulations for commercial and industrial incinerators (§60.2175(v)). In those regulations,
facilities must comply with reporting or recordkeeping provisions related to compliance with
applicable §241 requirements. For more detailed information, please see Section "VII. I
Determining that Non-hazardous Secondary Materials Meet the Legitimacy Criteria" in the final
rule.
Refer to the respective air rules for the full discussion on enforcement and
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implementation.
H. Comments on Economic and Environmental Impacts
Comment r3b-H-11:
Many commenters argued that classifying various NHSMs as solid waste would
adversely affect industries that rely on these materials as fuels or ingredients by increasing
production costs and reducing competitiveness. In particular, commenters argued that facilities
that burn NHSMs classified as solid waste when burned as a fuel or ingredient would either incur
higher emissions control costs under CAA Section 129 emission standards or incur costs
associated with substituting to virgin fuels and/or ingredients. The commenters maintain that
these increases in costs cannot be passed on to consumers because the choice of energy source
will not be based on availability and economics, but on arbitrary determinations that a particular
material is a waste, rather than a fuel. Other commenters expressed concern that the NHSM Rule
will allow an untold number of facilities to burn non-hazardous secondary materials without
emissions controls, air monitoring, or reporting requirements. According to the commenters, the
EPA is failing to meet its responsibility to protect the environment and human health.
Also related to the costs of the rule, one commenter maintains that EPA minimizes the
difficulty of being regulated under Section 129 versus regulation under Section 112 of the CAA
by simply comparing the two sections in a chart in the supporting documentation for the
proposed rule. In California, for example, it is substantially more difficult, if not impossible, to
site an incinerator of any kind, but especially a Section 129 incinerator, if for no other reason,
because of the stigma that the moniker "Section 129" carries.
The additional numerical limits of the specified eight compounds in addition to other
Section 112 (b) compounds that may be regulated, coupled with the periodic monitoring
requirements of Title V, while difficult and expensive in themselves, are small compared to the
pre-construction site risk assessments that must "minimize, on a site-specific basis, to the
maximum extent practicable, potential risks to public health or the environment," criteria which
are almost impossible to meet in California. Handling of ash from additional Section 129
incinerators is also an expensive and ongoing problem for operators that the proposed rule's
Regulatory Impact Analysis (RIA) completely fails to address.
EPA's Response:
This final rule alone does not directly invoke any costs138 or benefits. This rule is
published as part of a four-rule package that includes the Boiler MACT and CISWI rules. Costs
to the regulated community and corresponding benefits to human health and the environment are
captured under these rules. As such, the Agency has not prepared a separate economic
assessment in support of this final rule.
The costs and benefits indirectly associated with this action are the corresponding
impacts assessed in the regulatory impact analyses prepared in support of the Boiler MACT and
CISWI rules. These independent regulatory impact analyses measure, among other factors, the
estimated net change in social welfare associated with these actions. In the development of these
138 Excluding minor administrative burden/cost (e.g. rule familiarization) and voluntary petition costs.
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analyses, EPA worked to ensure that the methodologies and data applied in these assessments
captured appropriate RCRA related costs (e.g., secondary material diversions). These
assessments were designed to adhere to Agency and the Office of Management and Budget
(OMB) guidelines and procedures. These documents are available in the docket established for
this action.
EPA disagrees that the NHSM Rule will allow an untold number of facilities to burn non-
hazardous secondary materials without emissions controls, air monitoring, or reporting
requirements. Although the rule determines whether a given combustion unit-burning non-
hazardous secondary materials-would be regulated pursuant to Section 112 or Section 129 of the
Clean Air Act, regulations promulgated under both sections of the Act include requirements to
protect human health and the environment from harmful air pollutant emissions. Additional
information on the Section 112 major and area source Boiler NESHAPs and the Section 129
CISWI standards developed in conjunction with the Final NHSM rule are available on EPA
docket numbers EPA-HQ-OAR-2002-0058, EPA-HQ-OAR-2006-0790 and EPA-HQ-2003-
0119, respectively.
Comment T3b-H-21:
EPA's benefits analysis for the NHSM rule focuses primarily on criteria pollutant
reduction with emphasis on PM2.5 reduction. There is no analysis of any true benefit between
compliant, well-managed Section 112 incinerators and Section 129 incinerators or a
comprehensive health risk assessment analysis between the two scenarios showing any relative
betterment to the environment under the proposed definition. The benefits analysis also ignores
the negative corollary impacts of fewer Section 112 incinerators and the additional trucking of
secondary materials to new management options, potential impacts on landfill and landfill
emissions, etc. The cost/benefit analysis "disclaimer" [31889] should address these phenomena
as a direct result of this rulemaking and not defer it to future NESHAPS/NSPS/EG incinerator
rulemaking analyses.
EPA's Response:
This final rule alone does not directly invoke any costs139 or benefits. This rule is
published as part of a four-rule package that includes the Boiler MACT and CISWI rules. Costs
to the regulated community and corresponding benefits to human health and the environment are
captured under these rules. As such, the Agency has not prepared a separate economic
assessment in support of this final rule.
The costs and benefits indirectly associated with this action are the corresponding
impacts assessed in the regulatory impact analyses prepared in support of the Boiler MACT and
CISWI rules. These independent regulatory impact analyses measure, among other factors, the
estimated net change in social welfare associated with these actions. In the development of these
analyses, EPA worked to ensure that the methodologies and data applied in these assessments
captured appropriate RCRA related costs (e.g., secondary material diversions). These
assessments were designed to adhere to Agency and the Office of Management and Budget
(OMB) guidelines and procedures. These documents are available in the docket established for
this action.
139 Excluding minor administrative burden/cost (e.g. rule familiarization) and voluntary petition costs.
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Comment T3b-H-31:
EPA fails to develop a Regulatory Flexibility Analysis. EPA does not offer a factual
basis for making the assertion that the rule will not have a significant impact on a substantial
number of small entities.
EPA's Response:
EPA disagrees with this comment. After considering the economic impacts of today's
final rule on small entities, EPA certifies that this action will not have a significant economic
impact on a substantial number of small entities. No small entities, as defined by the Small
Business Administration's (SBA) regulations at 13 CFR 121.201, are directly regulated by this
final rule (see Section XI.C of the Final Rule). Any potential impacts to small entities in these or
any other potentially affected sectors are addressed in the regulatory flexibility analyses prepared
in support of the CAA rules that are linked to this action.
Comment T3b-H-41:
The fundamental issue that environmental justice, environmental and public health
groups have raised with the EPA for two decades now has been the obvious unequal protection
that the agency and state environmental agencies have allowed to exist. Some communities have
seen an effort to reduce toxic air emissions while others have watched toxic emissions escalate to
dangerous levels with no abatement in sight. Advocates for environmental justice have been
fighting an uphill battle against industrial and commercial facility operators and state regulatory
agencies that have not ensured that all communities are being provided the full protections of the
Clean Air Act. As a result of this negligence, people living in some overburdened communities
are being exposed to excessively high levels of noxious air pollutants on a daily basis.
To provide protections for environmental justice communities, the commenter urges EPA
to promulgate the most protective definition possible. By excluding any NHSMs from the
regulatory definition of "solid waste," the EPA's rule would exempt thousands of industrial
facilities that burn these materials from the monitoring and siting requirements that Congress
enacted to protect communities from the toxic emissions that waste burning is known to
generate.
EPA's Response:
Under the final rule, if a non-hazardous secondary material is not discarded in the first
instance and is legitimately recycled, it is not considered a solid waste. While the Agency is
constrained by the statute and case law in defining what is a solid waste under this final rule, we
recognize and are sensitive to environmental justice concerns. As such, we have prepared an
environmental justice summary paper140 designed to assess the potential for unequal protection
of sensitive communities. This document summarizes the overall environmental justice (EJ)
140 "Summary of Environmental Justice Impacts for the Non-Hazardous Secondary Material (NHSM) Rule, the 2010
Commercial and Industrial Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source Boiler NESHAP,
and the 2010 Area Source Boiler NESHAP," January 2011.
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impacts of the four-rule package.141 Presenting the EJ impacts of each of these rules individually
would be complicated, and could be misleading by the fact that the four rules are interdependent.
We found that environmental justice impacts that may result from the four rules are likely to be
related to the following: emissions from regulated combustion units, emissions from the
diversion of non-hazardous secondary materials from their current fuel or ingredient use
applications to disposal or other beneficial uses, and potential other impacts related to material
diversion (e.g., noise, aesthetics, water pollution, etc.).
Based on our assessment of the emissions changes and other environmental impacts of
the rules, and the demographics of populations near affected combustion units and waste
management facilities, we have concluded the following:
1.	Emissions changes from affected combustion units are unlikely to lead to adverse and
disproportionate impacts for low-income and minority populations;
2.	Increases in emissions associated with the diversion of non-hazardous secondary
materials away from their current fuel or ingredient uses are minimal compared to the
emissions reductions resulting from the rules. Thus, in net terms, the emissions impacts
of the rules are unlikely to lead to adverse and disproportionate impacts for low-income
and minority populations;
3.	Low-income and minority populations located near waste management facilities (not
including boilers) are disproportionately high relative to the national average
Overall, this rulemaking package is expected to result in net emissions reductions and
corresponding net environmental improvement to communities of concern, on a national level.
Comment T3b-H-51:
One commenter asserts that the rule, as proposed, would adversely affect the financing of
integrated recycling programs. In many areas, the financing of these programs is based largely
on the amount of solid waste managed in a state. If materials are deemed not to be solid wastes,
the commenter argues that financing based on waste volumes would decline.
EPA's Response:
We note that the scope of this final rule is limited to identify the requirements and
procedures for the identification of solid wastes used as fuels or ingredients in combustion units.
We are articulating a narrow definition in this final rule and are not making solid waste
determinations that apply to other beneficial uses. States may employ their own definition of
solid waste either for this rule or for other purposes. However, the state solid waste
determination would not affect whether materials are burned in 112 or 129 units. This rule
applies to those materials.
141 (1) Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources:
Commercial and Industrial Solid Waste Incineration (CISWI) Units (the CISWI Rule); (2) National Emission
Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers (the area
source Boilers Rule); (3) National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heaters (major source Boilers Rule); and (4) Identification
of Non-hazardous Secondary Materials that are Solid Waste (the NHSM rule).
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Comment T3b-H-61:
One commenter noted that the Obama Administration has pressed Executive Order 12898
to be a key consideration in government decision-making, recommitting the Federal government
to addressing environmental justice in minority and low-income populations. The commenter
claims that the anticipated effect of the proposed rule has serious implications for the
Administration's overarching efforts to alleviate environmental injustice. Vulnerable
populations will confront even greater environmental injustice in the wake of this purposed rule.
The environmental burdens of land disposal units and material recovery facilities will be greater
as increased utilization of these entities will be accompanied by increases in transportation,
odors, and noise.
EPA's Response:
EPA has determined that this final rule will not have disproportionately high and adverse
human health or environmental effects on minority or low-income populations. The four-rule
package that consists of this rule plus the three CAA rules142 will generally result in an improved
level of environmental protection. No disproportionately high and adverse human health or
environmental effects on any population, at a nationwide level, including any minority or low-
income population, is expected.
Comment T3b-H-71:
One commenter argues that the proposed rule will create greater dependence on foreign
fuel, not less. Although EPA has not undertaken a calculation of this fuel displacement, by any
measure it is a massive amount of energy. In addition, EPA has failed to calculate the energy
costs of disposing of the vast quantity of solid waste-derived fuels into landfills. Consequently,
the commenter believes that it is clear that the proposed rule (as well as the Alternative
Approach) would constitute "a significant energy action" within the meaning of Executive Order
13211 and it was improper for EPA, particularly without any analysis, to reach the opposite
conclusion.
EPA's Response:
EPA disagrees with this comment. This action is not a "significant energy action" as
defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have
a significant adverse effect on the supply, distribution, or use of energy. This action,
independent of the CAA rules,143 is not expected to directly affect energy use or use patterns.
142	National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and
Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heaters; and, Standards of Performance for New Stationary
Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration
(CISWI) Units
143	National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and
Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heaters; and Standards of Performance for New Stationary
Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration
(CISWI) Units.
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The purpose of this rule is to determine which non-hazardous secondary materials are solid waste
when combusted. On its own, this rule will not lead to direct changes in the ability of facilities
to use non-hazardous secondary materials as a source of energy. The Agency acknowledges that
interactions between this rule and the section 112 and section 129 CAA emission standards
promulgated in conjunction with the final rule may affect the use of non-hazardous secondary
materials as a source of energy. We refer the commenter to those rules for information on these
energy impacts.
Comment T3b-H-81:
One commenter argues that the total capacity of section 129-permitted facilities is not
sufficient to manage all of the solid waste-derived fuels encompassed by this proposed rule.
Based on CISWI unit capacity data released by EPA as part of the CISWI rulemaking, the
commenter presents the results of an analysis suggesting that CISWI units would not have
sufficient capacity to manage used oil considered to be a solid waste under the rule, let alone the
other NHSMs diverted from their current fuel or ingredient uses as a result of the rule.
According to the commenter, EPA has not adequately focused on the real world consequences of
its policy choices in this rulemaking. Instead of net environmental benefits, the realistic outcome
of implementing this proposed rule would be an environmental disaster.
EPA's Response:
The purpose of this final rule is to establish which non-hazardous secondary materials are
solid wastes for the purpose of combustion under CAA section 129. The determination of total
available capacity of section 129-permitted facilities is beyond the scope of this rule. However,
it appears that the commenter's assessment of capacity fails to account for several factors that
could alleviate potential capacity constraints. First, with respect to used oil, the commenter
appears to assume that no off-spec used oil would be blended with on-spec used oil to create an
on-spec oil blend. To the extent that such blending occurs, this could significantly reduce the
amount of used oil diverted from its current fuel use applications. In addition, the commenter
does not consider the possibility that non-combustion beneficial use markets for various NHSMs
could expand over time, or that generators may engage in source reduction activities to minimize
the quantity of waste NHSMs generated on an annual basis.
I. Comments on Materials Not Specifically Identified in the Preamble
1. Using the General Framework of the Regulations
Comment Pb-Il-ll:
Commenters asked about whether specific materials were a waste or a non-waste or were
a traditional fuel. Commenters also requested that EPA create a list of wastes and non-wastes in
the final rule.
EPA Response:
Usage of the "regulatory framework"
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In the preamble of the final rule, we list most of the commonly used NHSMs, the
available data for the NHSMs, and discuss the waste status based on the available information.
In order to determine if it is a traditional fuel, refer to the definition in §241.2 and refer to the
discussion in the preamble of the final rule for additional detail.
In order to determine whether an NHSM used as a fuel or ingredient is or is not a solid
waste, the combustor using the NHSM is expected to use the regulatory framework described in
today's rule at §241.3 and comply with the applicable CAA regulations, including the
notification and record-keeping requirements discussed in the preamble to today's rule. See
Section VII in the final rule under "I. Determining That Non-Hazardous Secondary Materials
Meet the Legitimacy Criteria"
The purpose of today's rule is to identify the requirements and procedures for the
identification of solid wastes used as fuels or ingredients in combustion units under section 1004
of the Resource Conservation and Recovery Act and section 129 of the CAA (See §241.1
Purpose). In recognition of changes in economies, technologies, markets and material processes,
EPA is not finalizing a list of specific non-hazardous secondary materials as either wastes or
non-wastes in regulatory language, but is rather specifying the criteria to be used to determine if
these secondary materials are or are not solid wastes. There could be instances where
determinations of whether a particular non-hazardous secondary material meets the various
criteria will have to be based on site-specific information; a national designation that in all
circumstances, a particular non-hazardous secondary material is or is not a waste may not be
possible.
EPA has gathered data in a series of Material Characterization Papers (available in the
docket) that would be applicable to the commenter's material in question. We believe that the
non-hazardous secondary fuels and ingredients discussed in these Materials Characterization
Papers account for the vast majority of all non-hazardous secondary materials used in
combustion processes in the U.S., although there are some variations in the broad material
categories that were not specified in the rule. In addition, EPA collected data for traditional fuels
that can be used for comparison (which is also in the Material Characterization Papers in the
docket).
Please note that the Material Characterization Papers were developed using the best
available data and data from commenters (that relied on professional judgment for inclusion).
The papers have been offered for comment during public comment periods for the ANPRM and
for the proposed rule and have been updated after each comment period. EPA intends to
maintain the Material Characterization Paper for traditional fuels for use in implementation.
The preamble of the rule describes how the waste determinations are to be made and
how the rule should be implemented in Section "VII. Detailed Discussion and Rationale for
Today's Final Rule."
The basic principle therein, is that the generator of the material must be able to show that
it is not discarded, is treated as a valuable commodity in that it is handled so as not to lose it, has
real fuel value, and is not being burned to dispose of materials.
2. Questions on Waste Status of Substances used as Fuel in General
Comment r3b-I2-11:
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Black liquor solids — Black liquor solids are clearly a valuable fuel product and not a
waste material. EPA's proposed rule reaffirmed prior interpretations that black liquor solids are
not regulated as solid wastes under RCRA Subtitle C hazardous waste regulations when
combusted under certain conditions and that EPA therefore has no intention of regulating black
liquor solids as a solid waste under the Clean Air Act (CAA) requirements of Section 129. The
commenter supports EPA's intention not to consider black liquor solids a solid waste under CAA
Section 129. Black liquor solids combustion in a chemical recovery furnace is essential to
maintaining a closed-loop system within a pulp mill, allowing the recovery of chemicals and the
generation of steam for process use or electricity generation. Black liquor solids are clearly a
valuable fuel product and not a waste material
EPA's Response:
EPA has stated that secondary materials excluded from the definition of solid waste
under the RCRA subtitle C regulations for hazardous waste will remain non-wastes under this
rule. We are not reopening the RCRA subtitle C rules. This was also mentioned in the response
to comments in the final rule (Section V.A).
In the event that it is not excluded from the definition of solid waste under the RCRA
subtitle C regulations for hazardous waste, please refer to the "regulatory framework" response
described above.
Comment T3b-I2-21:
Treated Seeds — One commenter requests that EPA add treated seeds to the scope of materials
which may be considered under the rule. The commenter currently burns treated seeds in a
boiler as an alternative to coal. The commenter states that the seeds have been discarded, and
would not meet the standards for clean biomass as described in the rule. Chemicals applied to
seeds are fungicides intended to preserve the seed and colorants intended to classify the seeds.
The fungicides currently used as active ingredients (subject to change) include certain chemicals
which may contain chlorine or fluorine. The quantity of fungicides used on seeds is measured in
terms of ounces of material per 100 pounds of seeds treated. The total quantity of material
applied is generally no more than one to two percent on a weight basis, with the active ingredient
being a fraction of the quantity applied. Thus, the quantity of chlorine or fluorine expected in
treated seeds is a very small amount. Based on current corn fungicides and the associated
application rates, the overall content of these materials on treated seeds is less than 0.039 %
chlorine by weight and 0.0014 % fluorine by weight. The commenter notes that these levels are
lower than contaminant levels in coal.
The commenter also provided information that treated corn seed has an average heating value of
7,245 Btu per pound (as received). Because of the substantial investment in such seed material,
the commenter stated that the seeds are managed as a valuable commodity as bulk seeds are
placed in secure bins and bagged seeds remain bagged until they are fed in a combustion unit so
as to avoid contamination from other materials, minimize losses and reduce exposure to
moisture. Obsolete seeds are managed as a valuable commodity reflecting its valuable heat
content.
EPA's Response:
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The commenter has not provided sufficient information about treated seeds to determine
whether they would or would not be considered solid wastes when burned. More information
would be needed to make complete determinations. The commenters may wish to petition for a
non-waste determination. The treated seeds have been discarded and must be processed if they
are to be considered non-waste fuels. Specifically, as stated in section 241.3(b)(4), discarded
non-hazardous secondary materials that have not been processed to produce a non-waste fuel or
ingredient would be considered a solid waste. Accordingly, as the commenter stated that the
seeds have been discarded, information about processing of the material would be required. EPA
would also need additional information about the process of managing the obsolete and non-
obsolete seeds from the time it is determined that they should be burned as a fuel until they are
combusted.
Comment T3b-I2-31:
Paint Chips —One state agency commenter suggests that paint chips/sludge from an
automotive assembly plant will be affected by the final rule and describes how energy is
currently recovered from this material. The commenter has approved this material as an
alternative fuel for use in the boilers. Use of the material is regulated as part of the facility's Title
V air permit and has been determined by KYDEP to not present a risk to human health or the
environment. Commenters are concerned that further EPA regulation will prohibit the use of
State-of-Kentucky approved alternative fuels.
Tall Oil — A limited number of commenters view tall oil as a valuable commodity and a
legitimate fuel, and seek EPA's concurrence that tall oil would not be considered a discarded
waste material. In certain instances, facilities will combust tall oil in place of fuel oil. The
Commenters view tall oil as a valuable commodity and a legitimate fuel and seek EPA's
concurrence that tall oil would not be considered a discarded waste material.
Cullet from Glass Melting Furnaces — The commenter urges EPA to avoid any rule-
making or modification to the proposed rule that would result in cullet being classified as a solid
waste or that would result in glass melting furnaces being subject to regulation under CAA § 129.
Such a result would be counter to the CAA's purposes and plain language, as well as inconsistent
with prior EPA regulatory actions. The commenter urges EPA to confirm that cullet use will not
subject glass manufacturing plants to regulation as a solid waste incinerator.
Plastics — One commenter asserts that scrap plastics have a high energy content ranging
from 8,250 to 19,000 Btu per pound, comparing favorably and even better than coal in terms of
fuel value. Accordingly, the legitimacy criteria should be developed in a manner to minimize
what must be demonstrated to avoid solid waste classification of scrap plastics.
Others — There were additional items raised as well, including auto shredder residue,
steel drums, and carpet to name a few.
EPA's Response:
Please refer to the "regulatory framework" response above.
Some comments imply that a non-hazardous secondary material should pass the
legitimacy test if it has a meaningful fuel value, regardless of whether the material is managed as
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a valuable commodity or contains contaminants in higher concentrations than virgin fuels. We
disagree. As indicated in the final rule, we all three legitimacy criteria for fuels are necessary to
ensure that the combustion of an NHSM is not a waste activity.
EPA notes that current state permits are not determinative of whether the combustor is to
be regulated under CAA 112 or 129.
In regard to plastics, (as stated in the proposed rule [75 FR 31872], polyvinyl chloride
plastics would contain contaminants (halogens [chlorine]) that are not comparable to the
traditional fuel which the unit is designed to burn. Refer to the Materials Characterization Paper
on scrap plastics located in the docket for today's rule.
In addition, see the applicability of CAA section 129 requirements.
3. Questions on Gases (Flared, Contained Gases, etc)
Comment [3b-I3-11:
Vented Gas — Commenters request clarification on whether biogas that would otherwise
be flared to the atmosphere is considered discarded and therefore solid waste. The commenter is
concerned that, if such streams are considered "discarded" boilers and process heaters that are
being used as effective control devices could be classified as CISWI units, and that facilities
would choose alternative control options where no beneficial use is being derived from the
stream to avoid being subject to the proposed CISWI rules.
EPA's Response:
This rule does not apply to vented gas that is not contained and simply goes into the
atmosphere. We are not dealing with whether such vented gases are subject to the definition of
solid waste. To the extent a biogas is combusted as a non-hazardous secondary material, to
determine whether the material is or is not a solid waste, the combustor using the material is
expected to use the framework described in today's rule at §241.3. The preamble of the rule
describes how the waste determinations are to be made and how the rule should be implemented.
See comment below on contained gas.
Comment [3b-I3-21:
Landfill Gas and Sewage Digester Gas — Commenters asked EPA to clarify that landfill
gas and sewage digester gas are unequivocally "traditional fuels" and are not solid wastes if they
are combusted in any type of boiler. The commenter is concerned that in the numerous times the
expression "traditional fuels" appears in the proposed rulemaking, there is no mention of landfill
gas and/or sewage digester gas, fuels that have been used for many years by local governments
around the United States to produce substantial amounts of renewable electrical power.
EPA's Response:
The Agency disagrees that landfill gas or sewage digester gas are traditional fuels. They
are extracted from landfills, which contain wastes. They may be considered commodity fuels
that have been processed from waste materials but they would have to meet all the requirements
necessary to be considered a processed commodity fuel.
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Comment T3b-I3-31:
Syngas — Creosote-treated wood may be beneficially used as an ingredient in other
products. While the most common current reuse of treated wood is combustion as fuel, other
technologies are evolving that do or will utilize treated wood as an ingredient to make other
products. The commenter lists the following as examples:
•	Enerkem is now completing a commercial scale biofuels plant in Westbury, Ontario that
is producing syngas from treated wood utility poles and will this year begin production of
ethanol.
•	American Cogeneration, LLC has licensed technology from the Energy and
Environmental Research Center at the University of North Dakota to gasify wood
biomass, including creosote treated crossties, to produce syngas for heat and power
production. A plant utilizing out of service ties from the Canadian Pacific Railway is
under construction.
•	Engineered wood products, such as glue-laminated shapes, plywood, or particle board
may be manufactured using out-of-service treated wood. The new products may benefit
from preservatives already in the wood and/or may be treated further to extend their use
lives.
EPA's Response:
In the first two examples, the commenter discussed use of creosote treated wood as
ingredient in a gasification process. As indicated in the final rule, gasification is a chemical
production process that converts carbonaceous material into a synthesis gas that can be used for
energy production (or as a building block for other chemical manufacturing processes).
Synthesis gas can meet the requirements of a fuel product produced from processing of discarded
non-hazardous secondary materials, provided the syngas has been adequately processed to
remove contaminants. In general, however, the Agency would require additional information on
the specific gasification process, and in particular, how the carbonaceous material (creosote
wood) is chemically converted into a synthesis gas to determine whether these materials used in
the gasification process would be considered as ingredients, and correspondingly, whether the
material would be required to meet applicable legitimacy criteria.
In the last example on engineered wood products of a plant utilizing out-of-service
treated wood, additional information on the manufacturing process would be required for a
determination. From the description provided, it appears the treated wood would be used as a
raw material rather than a fuel or ingredient in a combustion process. Today's rule is not
applicable to other such end uses.
Comment T3b-I3-41:
Contained Gas — A limited number of commenters indicated that the final rule should
contain a definition of "contained gaseous material." The statutory definition of solid waste
includes "solid, liquid, semisolid or contained gaseous material." 42 U.S.C. § 6903(27)
(emphasis added). EPA has interpreted the term "contained gaseous material" to include gases in
containers, but not gases flowing through pipes to combustion units. Under the June 4, 2010
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proposed revisions to the CISWI rule, the existing definition of solid waste will be removed, and
the rule will rely upon the proposed definition of solid waste here (proposed 40 C.F.R. Part 241).
The commenters state that the preamble language in the proposed rule could be read to
suggest that gaseous fuels are to be included in the Part 241 definition of solid waste. In
discussing which traditional fuels are to be used for comparison purposes in applying the
legitimacy criterion concerning contaminants, the proposed rule says:
"For example, if the boiler burns fuel oil, the level of contaminants to be
compared would be the level of contaminants in fuel oil or other liquid traditional
fuels that is or can be burned in such unit, while for gas-fired boilers, the level of
contaminants in the non-hazardous secondary material fuels would be compared
to natural gas."
The commenter assumes that EPA does not intend to regulate gaseous fuels through this
rule or otherwise under CAA section 129. Consistent with the statutory definition of solid waste
and with EPA's approach in the 2000 CISWI rule, EPA should make clear that "contained
gaseous material" is only meant to cover gas in a container when that container and its contents
are combusted.
EPA's Response:
As a preliminary matter, EPA wishes to correct certain misconceptions in these
comments. First, we wish to make it clear that the statement regarding secondary material fuels
replacing natural gas in gas-fired boilers only refers to fuels that are secondary materials. It does
not refer to a situation in which a gas-fired boiler can use, for example, refined fuel oil. EPA is
aware that fuel oil and gas may be used interchangeably in some boilers. The preamble
statement, however, only applies to a secondary material, not a product fuel. Since on-
specification used oil is considered an alternative "traditional fuel," it would not be considered a
secondary material.
Next, EPA also acknowledges that this rule does not apply to vented gas that is in no way
contained and simply goes into the atmosphere. We are not dealing with whether such vented
gases are subject to the definition of solid waste. Vented gas simply will not be used as a
secondary material in any gas-fired boiler and thus, is not part of this rulemaking; nor is EPA
reopening any rules regarding such vented gases.
Further, EPA is not considering viewpoints regarding how it regulates gases under the
hazardous waste regulations - specifically, whether gases in pipelines are contained. The
Agency needs to evaluate whether the non-hazardous secondary gaseous material that will be
used as substitutes in gas-fired boilers are solid wastes, or not, under the statutory definition.
EPA's determination in this rule is based on the plain language of the statute.
This leads EPA to the situation covered in this rule. In the first place, we are unable to
find any Agency reasoning supporting previous EPA interpretations that only gases in containers
may be considered "contained." Based on the facts of this case, EPA cannot see how gaseous
secondary material that is generated in any particular system and is somehow sent to a gas-fired
boiler, even through a pipeline, can be considered an "uncontained gas." This even assumes that
"uncontained gas" is not covered under the definition of solid waste, which EPA does not
concede in this rulemaking. This would mean that a clean gas-fired boiler could still burn under
CAA 112 secondary material that is handled through a seriously leaking pipeline, has little to no
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real fuel value, and is full of dirty contamination, simply because the material is not a "contained
gas" under the definition of solid waste. EPA rejects any such formulation.
4. Questions on Waste Status of Substances used as Ingredients
Comment Pb-M-ll:
One commenter argues that metal-bearing slag, flue dust, and used carbon are all
recycled as part of the standard gold production process in order to recover their carbon or metal
values. The specific processes employed by the commenter for these materials are as follows:
Flue dust — As part of the smelting process, gold-bearing "dust" is generated in smelting
furnaces. This dust is conveyed by pipe to, and filtered in, a baghouse located in the refinery
building. Dust from the baghouse is collected in barrels, which are stored in the refinery
building. This dust is then sent to a dedicated leaching circuit for recovery of its gold content.
At times in the past, however, this flue dust has been conveyed directly back to the smelting
furnaces in order to recover its gold values.
Slag — Slag, the primary gold-bearing material stream emerging from the retort furnaces
at the commenter's Nevada facility, is mixed with a flux composed of silica and borax and
smelted in an induction furnace. The product of this induction furnace is molten dore, which is
poured into molds and allowed to cool and harden. After hardening, the dore (which is the final
"product" produced by Newmont) is sent off-site. Metal-bearing slag, which is attached to the
dore, is broken off the dore and then placed into barrels inside the refinery building. The slag is
then processed for gold recovery. Newmont has at times processed the slag by placing it directly
back into the induction furnaces as an ingredient for gold recovery.
Used Carbon — The commenter conveys used carbon to carbon regeneration kilns in
order to drive off the impurities so that the carbon can be used anew in gold production
operations. The regenerated carbon is used as a substitute for carbon that the commenter would
otherwise have to purchase if it did not regenerate its used carbon. The used carbon is thus a
valuable commodity. Another commenter said that carbon regeneration is a long-established and
standard part of gold beneficiation, and has been investigated and documented on numerous
occasions by EPA while developing its RCRA rules and in other rulemakings. The carbon is
recycled continuously and is not discarded. The commenter believes the proposed rule as drafted
would not apply to carbon regeneration kilns, and that EPA did not intend with the proposal to
identify carbon used and reused at gold mines as a solid waste. Even if the carbon were "solid
waste" under the terms of the proposed rule, it is not "combusted" or "burned" as EPA uses those
terms in the proposed rule. Finally, carbon regeneration kilns qualify as "material recovery
facilities," as defined in Section 129, and as such, are not subject to emission standards
promulgated for solid waste incineration units.
EPA's Response:
If the flue dust, slag, and used carbon processed using the procedures described by the
commenter are recycled in a continuous process as described, they are not discarded, but they
still need to pass the legitimacy criteria to be non-waste.
Regarding the commenter's request to consider carbon used in carbon regeneration units
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as a non-waste; in order to determine whether an NHSM used as a fuel or ingredient is or is not a
solid waste, the combustor using the NHSM is expected to use the framework described in
today's rule at §241.3 and comply with the applicable CAA regulations.
See the response above for the basic framework of the regulations (§241.3) to determine
if the NHSM is a waste or non-waste.
5. Other Questions on Waste Status
Comment r3b-I5-11:
Analysis of Lab Samples — One commenter believes that EPA has overlooked the
management of laboratory samples in the rule. The analysis of samples has a definite purpose
completely separate from disposal of the sample material. The samples themselves, as well the
analytical procedures, have a value and the results of the analysis provide a useful function. The
taking of samples and their subsequent analysis do not constitute discard because there is a
definite use involved. A number of analytical methods involve thermal destruction of the sample
to generate the analytical result (e.g., ash analysis, flame ionization detection, bomb calorimetry,
atomic absorption spectroscopy, total organic carbon, etc.). The commenter requests that EPA
clarify in the final rule that laboratory samples are not solid waste.
EPA's Response:
In order to determine if the air rules are applicable to laboratory analysis units, please see the
applicability under the CAA Section 129 CISWI rule. We refer the commenter to the docket for
the CISWI rule for information on this rule (See docket EPA-HQ-OAR-2003-0119). For
additional details on the applicability of CAA section 129 requirements for laboratory
equipment, refer to the revised CISWI applicability under 40 CFR 60.2025.
As noted by the commenter, the purpose of combusting the sample is to generate analytic
results. The sample is not being "discarded" according to the plain meaning of the word
(abandoned, dispose of or throw away). On the other hand, if there were excess unwanted
samples and they were actually being discarded by disposing of them in the lab unit, that would
be a waste.
J. Miscellaneous Comments
Comment T3b-J-11:
One commenter indicated that any future repairs, renovations, or remodeling activities for
its secondary spill containers will be conducted in accordance with the Asbestos NESHAP and
with 40 CFR 745 Subpart L.
EPA's Response:
This comment is not pertinent to this regulation, which establishes criteria for
determining whether non-hazardous secondary materials are solid wastes when burned as a fuel
or ingredient.
Comment T3b-J-21:
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The commenter asserts that the rule will undo regulations that exempt F006 sludge from
hazardous waste regulatory restrictions. The new definition of solid waste facilitates more
recycling of electroplating waste water treatment sludge, i.e., the listed hazardous waste, F006.
Under the revised definition of solid waste, sludge that is reclaimed for metals recovery would
not be "discarded" for regulatory purposes, and would not, therefore, be subject to hazardous
waste regulations - provided that the recycling is legitimate and that plating facilities and
reclamation facilities meet the set of conditions regarding the management and recycling of the
sludge. Excluding the recycling of F006 sludge from the RCRA hazardous waste regulatory
restrictions can encourage more recycling of the sludge and save small metal finishing operations
money. EPA cannot use this rulemaking to undo these established regulatory provisions.
EPA's Response:
As discussed throughout the preamble to the final rule, EPA is not reopening any subtitle
C regulations, including the 2008 DSW Final Rule. The result of this rule will have no effect on
the RCRA subtitle C hazardous waste program because it does not address hazardous waste. In
addition, see other responses about hazardous waste. Nevertheless, the DSW rule deals only
with reclamation not burning for energy recovery.
Comment T3b-J-31:
One commenter argued that EPA's designation of lead-based paint shavings as a
hazardous waste is inhibiting the use of technology to recover paint and other materials from
C&D debris.
EPA's Response:
This comment addresses regulations for hazardous waste established under RCRA
Subtitle C and is not relevant to this rulemaking.
Comment T3b-J-41:
Comment Period - Several commenters requested that EPA extend the public comment
period for the proposed rule. Commenters argued that 60 days does not provide the time
required to fully review and provide comment on a proposed rule. One commenter argued that
additional time is necessary to perform a thorough review of the data used in the emissions floor
calculations.
EPA's Response:
EPA disagrees that 60 days was an insufficient period of time to review the Proposed
Rule and prepare comments. The duration of the public comment period for the Proposed Rule
was consistent with that of other rules developed under EPA's authority under RCRA. In
addition, given the court-ordered deadline for the development of the Final Rule, EPA decided
not to extend the comment period beyond 60 days.
To respond to the commenter who requested more time to review data used on the
emissions floor calculations, EPA notes that this comment is not relevant to this rulemaking, the
purpose of which is to establish criteria for determining which non-hazardous secondary
materials are solid wastes when combusted as fuels or ingredients. We refer the commenter to
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the air rules proposed in conjunction with this rulemaking (see docket numbers EPA-HQ-OAR-
2002-0058, EPA-HQ-OAR-2006-0790, and EPA-HQ-OAR-2003-0119).
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PART 3c: Major Comments Received on the Advance Notice of Proposed Rulemaking
(ANPRM) as Responded to in the Proposed Rule
Prior to issuance of the proposed rule, an Advance Notice of Proposed Rulemaking on
the identification of non-hazardous secondary materials that are solid waste was issued January
2, 2009. Major comments received on the ANPRM, and the responses to those comments, were
included in Section VII.C of the preamble to the proposed rule. Those major comments and EPA
responses contained in the preamble of the proposed rule are repeated verbatim here.
These responses do not reflect changes that were made from proposal to the final rule;
see Sections 3a and 3b for those changes. The responses for the final rule supersede the
responses to the ANPRM comments.
A. Comments from State Agencies
EPA received comments from several states and state organizations in response to the
ANPRM. Comments received expressed a range of viewpoints representing states with differing
solid waste management programs and authorities. Consequently, it was not surprising that the
comments received often articulated competing suggestions and recommendations based upon
different state programs and experiences.
Comment:
Some states did not want EPA to define what is or is not a waste at the federal level if it
impacts or limits the scope of what states currently regulate under their solid waste management
authority. Some states noted a potential problem related to existing "stringency provisions" in
some state laws. For example, if a solid waste determination is made at the federal level, it could
be argued that the state is less stringent through their issued exemptions and the state rule must
be rescinded. Conversely, some states argued they cannot, by state statute, be more stringent
than the Federal regulations, and even if they don't have this statutory limitation, they may feel
pressure to not be more restrictive than the federal definition. Many states said we should defer
the determination of whether those non-hazardous secondary materials used as fuels or
ingredients are solid wastes to the states and urged flexibility in how each state could incorporate
any new regulations into its existing solid waste management programs.
EPA's Response:
The Clean Air Act (section 129(g)(6)) states that the term "solid waste" shall have the
meaning established by the Administrator pursuant to the Solid Waste Disposal Act.
Accordingly, EPA must define which non-hazardous secondary materials used as fuels or
ingredients in combustion units are solid waste at the national level in order to identify the
universe of sources subject to the boilers emissions standards to be issued under CAA section
112 and the CISWI emissions standards to be issued under CAA section 129. See section VIII of
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today's proposal for a discussion on the applicability of state solid waste definitions and
beneficial use determinations, as well as a discussion on state adoption of this rulemaking.
Comment:
Many states commented that they had long-standing "waste" management programs
regulating non-hazardous secondary materials, that no one had questioned the legitimacy of their
regulatory programs in the past, and that it was inappropriate and contrary to the intent of RCRA
for EPA to exclude this material, which had been considered "waste" for many decades, from
regulation under RCRA.
On the other hand, other states were concerned a federal designation that some of these
non-hazardous secondary materials are "wastes" would disrupt existing recycling markets by
creating a deterrent from using these non-hazardous secondary materials as fuels or ingredients.
These states emphasized the importance of promoting beneficial use of non-hazardous secondary
materials and were concerned that regulation of certain materials (especially used tires) under
CAA section 129 would create negative incentives to their beneficial use and consequently could
have negative environmental impacts.
Many states explained that they manage/regulate many of these secondary materials as
solid waste (e.g., tires), but determine they are not wastes (via beneficial use determinations)
when after analysis the state has determined they are going to a legitimate use (e.g., as a fuel).
These states recommended that these materials remain a solid waste until they are approved for,
procured and delivered to the potential end user in order to retain their ability to regulate the
management of these secondary materials, usually under its solid waste management
authority.144 For example, some states recommended that EPA exclude whole tires from the
definition of solid waste at the point of combustion.145
EPA's Response:
In developing this proposed rule, EPA attempted to balance and address the concerns
raised by the states regarding potential impacts on their existing solid waste programs in
determining which non-hazardous secondary materials are solid wastes when combusted, while
at the same time, recognizing that the proposed rule needed to be based on whether these
secondary materials are considered to have been managed in a way that meets the plain meaning
of discard, as defined in AMC I. We believe we have addressed that balance, considering the
statutory limitations, but also understand that today's proposal could impact existing state solid
waste management programs, as well as states' beneficial use programs, and specifically request
144 Many states regulate used tires under a statutory authority outside of their solid waste management statutory
authority, while some states regulate used tires pursuant to both their solid waste management authority, as well as
separate tire statutory authority.
145. Subsequent to the closing of the comment period, the Environmental Council of States (ECOS) approved
Resolution 09-7, entitled "Meaning of 'Solid Waste' under the Resource Conservation and Recovery Act (RCRA) as
it Applies to Non-Hazardous Waste Programs." This resolution, which was revised on March 23, 2010, urges EPA
to exclude whole tires from the definition of solid waste for the purposes of combustion. Both the original (dated
September 22, 2009) and revised versions are included in the docket for today's rule.
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comment on how today's proposal impacts or could impact such state programs. For example,
does the proposed approach impact the ability of the states to continue to regulate the
management of secondary materials prior to their final end use.
Comment:
Some state commenters suggested that the Agency address CAA section 129
implementation issues by subcategorizing energy recovery units that burn waste materials and
regulate this combustion similarly to the CAA section 112 requirements.146
EPA's Response:
This comment relates to EPA's regulation of solid waste incineration units under section
129 and is not relevant to this action, which proposes to define "solid waste" under RCRA for
non-hazardous secondary materials.
B. Meaning of Discard
As discussed in Section VI, RCRA defines "solid waste" as "...any garbage, refuse,
sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility
and other discarded material... resulting from industrial, commercial, mining, and agricultural
operations, and from community activities..." (RCRA section 1004 (27) (emphasis added)).
The ANPRM provided a thorough discussion on the definition of solid waste, including a
summary of relevant case law. See also Section VLB in today's preamble. Further, the ANPRM
highlighted the importance of the concept of "discard," noting that the definition of solid waste
turns on the meaning of the phrase, "other discarded material," as this term encompasses all
other examples provided in the definition.
Comment:
Several comments stressed that the Agency use the plain meaning of discard (i.e.,
disposed of, abandoned, or thrown away) in defining the term "solid waste" for the purpose of
establishing the appropriate standards for combustion units under CAA sections 112 and 129.
EPA's Response:
EPA agrees with the premise of using the "plain meaning" of discard, as this position is
consistent with case law on the issue (for a more detailed discussion, please refer to the ANPRM
and section VI.B of today's preamble).
Comment:
Some commenters noted that the same rationale and principles related to "discarded
materials" should apply whether these materials are regulated under RCRA subtitles C or D, as
146Id. ECOS Resolution 09-7 presents this position as an alternative to excluding whole tires from the definition of
solid waste for the purposes of combustion.
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the principles related to "discarded materials" are the same. Other commenters argued that the
subtitle C approach should not be used for non-hazardous secondary materials since these
materials pose less risk relative to hazardous wastes.
EPA's Response:
EPA believes it is appropriate to use the same general framework that has been used to
define solid waste for purposes of RCRA subtitles C and D (albeit tailored to specifically address
non-hazardous secondary materials used as fuels or ingredients in combustion units), noting that
the same statutory definition of solid waste applies to both RCRA subtitles D and C. However,
EPA is not proposing in today's action any revisions to its hazardous waste regulations.
Comment:
Some commenters argued that any secondary materials that are beneficially reused or
recycled are not waste, regardless of whether or not the reuse or recycling is conducted in the
same or different location or industry (on-site and off-site).
EPA's Response:
The Agency does not agree with this assertion, as this position is not consistent with case
law. Again, the question of whether a material is or is not a solid waste depends on the issue of
discard. In Safe Food and Fertilizer v. EPA, 350 F. 3d 1263, the court rejected the argument
that, as a matter of plain meaning, recycled material destined for immediate reuse within an
ongoing industrial process is never considered "discarded," whereas material that is transferred
to another firm or industry for subsequent recycling must always be solid wastes. 350 F. 3d at
1268. Instead, the court evaluated "whether the Agency's interpretation of... "discarded".. .is,
reasonable and consistent with the statutory purpose." Id. Thus, EPA has discretion to determine
if non-hazardous secondary materials are not a solid waste if it is managed within the control of
the generator, as well as if it is transferred outside the control of the generator.
As previously described, this proposal states that non-hazardous secondary materials used
as a fuel in combustion units that remain under the control of the generator and meet the
legitimacy criteria are not solid waste, but that non-hazardous secondary materials that are
transferred to a third party and combusted are considered solid wastes, unless a petition for a
non-waste determination has been granted. Ingredients, on the other hand, are determined not to
be solid waste even if they are managed outside the control of the generator as long as they meet
the legitimacy criteria. See section VII.D.6 for a discussion on EPA's rationale for these
determinations.
Comment:
One commenter noted that EPA's hazardous waste regulations under subtitle C provide
that hazardous secondary materials "burned to recover energy" or "used to produce a fuel" are
"discarded" and, therefore, are solid wastes. 40 CFR.261.2(c)(2). The commenter went on to
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point out that under the ANPRM approach, EPA is interpreting the definition of solid waste to
mean that burning of non-hazardous secondary material, under appropriate conditions, is not
"discard" under RCRA. According to the comment, the ANPRM is inconsistent with the
interpretation in 40 CFR 261.2. Regardless of whether EPA believes that it can issue separate
definitions of solid waste for hazardous waste and non-hazardous waste, the commenter suggests
"discarded" cannot be read both to include materials that are "burned to recover energy" or "used
to produce a fuel" and to exclude such materials.
EPA's Response:
EPA disagrees with this comment and does not believe the regulations are inconsistent.
The hazardous waste definition may be considered a "presumption" that secondary materials
burned for energy recovery, or used to produce a fuel, are solid wastes. EPA has, through
rulemaking, excluded from the definition of solid waste a number of materials burned for energy
recovery under certain conditions. See 40 CFR §§ 261.2(c)(2)(A)(ii) (off specification
commercial chemicals otherwise listed as hazardous wastes); 261.4(a)(6)("black liquor" in
pulping processes); 261.4(a)(7) (spent sulfuric acid); and 261.4(a)(16) (comparable fuels). In
addition, EPA has excluded materials used to produce fuels. See, 40 CFR §§ 261.4(a)(12) (oil
bearing hazardous secondary material inserted into the petroleum refining process), and
261.4(a)(18) (petrochemical recovered oil inserted into the refining process).
Regardless of the appropriateness of these exclusions, or whether the Agency may
appropriately exclude any secondary materials from the solid waste definition, consistency
between the regulations for hazardous and non-hazardous secondary materials is not an issue.
This proposed rule, which identifies certain secondary materials burned for energy recovery as
not being solid wastes, is comparable to the conditional exclusions for the definition of solid
waste in the hazardous waste regulations. Conditions apply to all of the secondary materials
being considered for determinations as to whether they are solid wastes. The legitimacy criteria
apply to all of the secondary materials.
It is reasonable and within EPA's discretion to determine that non-hazardous secondary
materials may be burned as products and are not wastes. Today's proposal acknowledges the
difficulty that the combustion of secondary materials is commonly associated with disposal.
However, this view does not take into account that the secondary material may often be used to
produce a safe fuel product that is a valuable commodity and is sold in the marketplace no
differently from traditional fuels. This position seems like a common sense interpretation of the
term, "solid waste," under RCRA.
Another difficulty the Agency faces is the misconception that secondary material that is
burned, either for destruction or energy recovery, by definition has high levels of contaminants.
The manner in which the secondary material is managed is a key factor that determines discard.
Contaminant levels are part of that consideration. If a material has high levels of contaminants,
it would be considered sham recycling, which is one type of way a material can be "discarded."
Hazardous secondary materials - those that would be hazardous wastes under RCRA
subtitle C, if discarded - are more likely to contain high levels of contaminants. Thus, EPA
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could reasonably presume that burning such secondary materials, even if burned for energy
recovery, is likely a waste activity. This was the Agency's rationale for issuing the subtitle C
rule at 40 CFR § 261.2(c)(2), which specifies that burning for energy recovery is a waste
disposal activity. In EPA's rule establishing the comparable fuels exclusion from the definition
of solid waste for hazardous secondary materials, the Agency stated that these hazardous
secondary materials (comparable fuels) are lower in hazardous contaminants than the normal
hazardous wastes and that burning of the comparable fuels "does not present the element of
discarding hazardous constituents through combustion that underlies the typical classification of
hazardous waste-derived fuels as a solid waste. 50 Fed. Reg. at 629-630 (Jan. 4, 1985)." 63 FR
at 33783 (1998). We may, after looking at certain secondary materials, decide that they are not
in fact solid wastes and are being burned as valuable commodities to recover energy. This
interpretation, however, is consistent with today's proposal, which also evaluates whether
materials burned for energy recovery are wastes or non-wastes.
Moreover, the case law supports the conclusion that materials burned for energy recovery
or used to produce fuels may or may not be solid wastes. American Mining Congress v. EPA,
824 F.2d 1177 (D.C. Cir. 1987) ("AMC I"), held that the term "discarded materials" could not
include materials "* * * destined for beneficial reuse or recycling in a continuous process by the
generating industry itself. 824 F.2d at 1190. The provision under consideration in this case dealt
specifically with material "reclaimed" in a continuous process. That is, material is regenerated
from a secondary material in a continuous process. However, it is highly likely the courts would
apply this same reasoning to secondary materials that are otherwise reused or recycled in a
continuous industrial process, such as material used, or combusted, to recover energy. Accord.
Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 2000) ("ABR").
It is also worth noting that the Ninth Circuit has specifically found that non-hazardous
secondary materials may, under certain circumstances, be burned and not constitute solid waste
under RCRA. See Safe Air For Everyone v. Waynemeyer ("Safe Air"), 373 F.3d 1035 (9th Cir.,
2004) (Kentucky bluegrass stubble may be burned to return nutrients to the soil and not be a
solid waste). This activity is not waste treatment even in the absence of energy recovery. We
believe, therefore, that burning material for another useful purpose (e.g., energy recovery) does
not necessarily constitute a disposal activity.
With respect to materials used to produce fuels, in American Petroleum Institute v. EPA,
216 F.3d 50 (D.C. Cir. 2000) ("API II"), the court overturned EPA's determination that certain
recycled oil bearing wastewaters are wastes (216 F.3d at 55-58) and upheld conditions imposed
by the Agency in excluding petrochemical recovered oil from the definition of solid waste (216
F.3d at 58-59). Both of these materials are returned to the petroleum refinery process and used
to produce fuel. The court in this case was clearly considering the conditions under which two
types of material may be excluded from the definition of solid waste. For purposes of the issue
of concern in today's proposal, this decision supports EPA's discretion to determine whether or
not a secondary material used as a fuel product is a solid waste or not, in light of factors relevant
to determining whether the material is discarded. Therefore, EPA is not prevented from
exercising its discretion to decide that issue either way.
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C. General Approach
EPA received several comments on the general approach outlined in the ANPRM for
determining which non-hazardous secondary materials used as fuels or ingredients in combustion
units are or are not solid wastes. Most commenters supported the general regulatory structure
that included: (1) a recognition that certain materials are inherently fuel products, (2) a self-
implementing approach for identifying those non-hazardous secondary materials that are not
considered solid waste pursuant to general criteria and (3) a petition process for receiving a non-
waste determination from the Agency.147
Comments:
Several commenters discussed whether to include a list of wastes and/or a list of non-
wastes in the regulations. One commenter recommended that a list of secondary materials that
are considered wastes be identified, rather than a list of secondary materials that are not
considered wastes, while other commenters urged for the inclusion of a list of secondary
materials that are not considered wastes when burned as a fuel. If EPA included a list of
secondary materials that are not considered wastes when burned as a fuel in its regulations, one
commenter also suggested that the Agency additionally include a list of secondary materials that
are considered wastes in order to remove any uncertainty. Those commenters who urged that the
regulations include a list of secondary materials not considered a waste when used as a fuel or
ingredient also cautioned that such a list should not be all-inclusive in order to account for
changes in technology and new secondary materials and processes that are not yet developed.
EPA's Response:
In recognition of changes in economies, technologies, markets and material processes,
EPA is not proposing to list specific non-hazardous secondary materials as either wastes or non-
wastes in regulatory language, but is rather specifying the criteria to be used to determine if these
secondary materials are or are not solid wastes. We believe that there could be instances where
determinations of whether a particular non-hazardous secondary material meets the various
criteria will have to be based on site-specific information; a national designation that in all
circumstances, a particular non-hazardous secondary material is or is not a waste may not be
possible. However, it is EPA's goal in this proposal, as well as in the pending final rule
preamble, to indicate, as clearly as possible, which non-hazardous secondary materials used as
fuels or ingredients in combustion units are or are not considered solid waste based on this
147 On August 18, 2009, EPA received a letter signed by nearly one hundred community groups and citizens that
urged for an expansive definition of solid waste for the purposes of combustion and argued against the general
approach of the ANPRM. A copy of this letter has been placed in the docket for today's proposed rule. The letter
highlights stakeholder concerns regarding the differences between CAA sections 112 and 129 and argues against an
overly narrow definition of solid waste. Partially in response to these comments and others, we are considering and
taking comment on an alternative approach to that proposed and described in section VII.D. This alternative
approach would include, with certain exceptions, non-hazardous secondary materials that are burned as a fuel or
used as an ingredient in the combustion process within the definition of solid waste. As such, units combusting
those materials would be required to meet CAA section 129 standards. For more information on the alternative
approach, see section VII.E of this proposed rulemaking.
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criteria. As several commenters also noted, any approach must be flexible enough to account for
changing technologies and new secondary materials that could, in the future, be viable fuels or
ingredients. The proposed approach allows for these changes, not by codifying a list of specific
non-hazardous secondary materials that are or not waste, but rather by adopting a self-
implementing approach that can consider site-specific information, if necessary.
Comment:
A few commenters noted a preference for categorical determinations that certain
secondary materials were products, not wastes (e.g., traditional fuels) along with clear criteria for
solid waste determinations for secondary materials not falling into one of these categories (i.e. a
petition process for non-waste determinations).
EPA's Response:
EPA partially agrees with this approach. The proposed rule discusses traditional fuels as
a category of fuel products that are not secondary materials and therefore, are not solid waste.
With respect to non-hazardous secondary materials, although this proposal does not list
types/categories of such secondary materials that are or are not solid waste in regulatory text (as
discussed above), we are proposing self-implementing regulatory criteria to be used by the
regulated universe to determine whether the non-hazardous secondary material would or would
not be a solid waste. The regulatory criteria are based on four categories of non-hazardous
secondary materials that are managed under various scenarios, including: (1) non-hazardous
secondary materials that remain within the control of the generator and meet the legitimacy
criteria and used as fuel; (2) non-hazardous secondary materials that meet the legitimacy criteria
and are used as ingredients; (3) fuel or ingredient products that are processed from discarded
non-hazardous secondary materials and that are used as fuels or ingredients in a combustion unit,
provided they meet the legitimacy criteria; and (4) EPA has granted a non-waste determination
for non-hazardous secondary material fuels managed outside the control of the generator.
More detailed information on these categories and their respective criteria can be found
in section VII.D. of this proposal.
Comment:
Some commenters suggested that a petition process for a waste determination should not
be mandatory. Proponents of this position urged that any regulatory construct for demonstrating
that non-hazardous secondary materials qualify as alternative fuels should be self-implementing
and not involve the need for individual regulatory determinations.
EPA's Response:
The non-waste petition process that applies to non-hazardous secondary material fuels
managed outside the control of the generator is not mandatory; however, we note that the
assumption in this proposed rule is that these materials would be a solid waste, unless they are
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granted a non-waste determination by EPA. Also, as explained above, we are proposing a self-
implementing approach for all the other non-hazardous secondary material management
categories that can consider site-specific information, if necessary (i.e., facilities will make a
self-determination of whether the non-hazardous secondary material in question meets the
regulatory criteria). We again note it is EPA's intention to indicate in the preamble, as clearly as
possible, which non-hazardous materials used as fuels or ingredients in combustion units are or
are not considered solid waste based on the criteria laid out in regulatory text. The Agency
expects this self-implementing approach will govern for the majority of situations.
D. Level of Processing Needed to Produce a Non-Waste Product From Discarded Waste
Material
In the ANPRM, we stated that if a non-hazardous secondary material is processed into a
legitimate fuel or ingredient product, then the processed material would not be a discarded
material. We listed various non-hazardous secondary materials we believed to have undergone
adequate processing (e.g., tire-derived fuel), and requested comment on whether some of the
materials, such as mined landfilled ash, should be considered to have undergone adequate
processing, such that it would be rendered a non-waste.
Comments:
Most commenters generally agreed with the concept, but had differing views on what
level of "processing" would render a discarded material a legitimate non-waste product fuel or
ingredient product. Their views ranged from not requiring any processing, to specifying a
minimum level of processing if processing criteria are retained. These commenters argued that
any management activity associated with recovering the non-hazardous secondary material
would be sufficient. Commenters who indicated that the non-hazardous secondary material
should not be required to "undergo processing" before it is considered a non-waste fuel or
ingredient argued that as long as these secondary materials meet the legitimacy criteria, they
should not be viewed as a solid waste once recovered from the discard environment; these
commenters provided examples of non-hazardous secondary materials, such as whole tires,
biomass, and coal fly ash. Also, some commenters stated that the act of recovering or
"extracting" the material from the "discard environment" should constitute the requisite degree
of processing needed. Commenters who argued that no minimum level of processing be
specified supported their position by noting that procedures for recovering solid waste vary
widely and that the amount of processing required would be dependent on the application for
which the non-hazardous secondary material is being prepared.
EPA's Response:
We disagree with the commenters who generally argued that no level of processing or
even a minimum level of processing should be sufficient to produce a non-waste fuel or
ingredient. We likewise disagree with those commenters who argued that the act of recovering
or "extracting" secondary material from the discard environment should be sufficient to be
considered processing. Rather, the Agency believes that sufficient processing of the secondary
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material (e.g., changing the mass, chemical make-up, or removing particular components from
the secondary material) must be undertaken to transform a waste-derived fuel or waste-derived
ingredient into a fuel or ingredient product. Thus, our position on this issue has changed from
that discussed in the ANPRM, as explained below.
For example, the Agency no longer believes that, in light of the proposed definition of
processing, simply cutting or sizing a material is sufficient to produce a product fuel or
ingredient. Specifically, under the proposed rule, processing "means any operations that
transform discarded non-hazardous secondary material into a new fuel or new ingredient
product. Minimal operations, such as operations that result only in modifying the size of the
material by shredding, do not constitute processing for purposes of this definition. Processing
includes, but is not limited to, operations that: remove or destroy contaminants; significantly
improve the fuel characteristics of the material, e.g., sizing or drying the material in combination
with other operations; chemically improve the as-fired energy content; and improve the
ingredient characteristics.." See the proposed definition in §241.2.
We believe the proposed definition is specific enough to describe the general level of
processing that would be needed, but flexible enough to apply broadly to the wide range of non-
hazardous secondary materials that are currently under consideration, or that could be under
consideration in the future as technologies change. We believe that discarded non-hazardous
secondary materials must be sufficiently processed in order to render a secondary material into a
non-waste product. Without sufficient processing, the non-hazardous secondary material that is
produced would remain a waste-derived fuel or waste-derived ingredient, and if burned in a
combustion unit, would be subject to the CAA section 129 requirements. The Agency
specifically requests comment on these points.
See section VII.D.4 for a discussion of the processing of discarded non-hazardous
secondary materials into non-waste fuel or ingredient products. That section describes EPA's
rationale for why this processed material is no longer considered a solid waste, as well as
examples of processing that EPA believes does or does not meet the requisite level to render a
discarded secondary material into a non-waste product.
E. Comments on Specific Materials Used as Fuels
In the ANPRM, we listed a number of non-hazardous secondary materials, as well as
traditional fuels, that we believe are currently being used as fuels and ingredients. We solicited
comment on additional information, including: the composition or characteristics of non-
hazardous secondary materials; how much of the non-hazardous secondary material is produced
and utilized; how it is utilized (i.e. as a fuel or an ingredient); and how it is generally handled.
The majority of comments submitted for fuels were in regard to traditional fuels and the
following non-hazardous secondary materials— biomass, used tires, used oil, coal refuse, and
sewage sludge.
a. Traditional Fuels. The ANRPM described traditional fuels to include: coal, oil,
natural gas, and their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery
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gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and
coke oven gas), as well as cellulosic biomass (e.g., wood). We requested comment on whether
there are other fuels that should be considered as traditional fuels and would fall within this
grouping.
Comments:
A few commenters suggested that bagasse should be included in the traditional fuel group
because it is a valuable co-product which is fed directly from the mill to the boilers and has
historically been the source of electrical power in communities located near the sugar cane mills.
In addition, cellulosic biomass crops similar to bagasse (e.g., energy cane and other fast growing
grasses) grown specifically for fuel production, agricultural seeds, woody biomass, and wood
collected from forest fire clearance activities, land clearing biomass, trees, unadulterated wood
from pallets, and uncontaminated wood from disaster debris were suggested as materials that
should qualify as traditional fuels. Last, several commenters argued that used oil, on-spec and
off-spec, should be listed as traditional fuels. Since neither type of used oil is discarded, the
presumption is that it is recycled.
EPA's Response:
We agree with commenters that many of the materials mentioned in the comments should
be classified as traditional fuels, which are not solid waste. However, to further add clarity, we
are proposing that in order to qualify as a traditional fuel, cellulosic biomass must be "clean"—
that is, must not be altered (either chemically or through some type of production process), such
that it contains contaminants not normally associated with virgin biomass materials, to ensure
that the material being burned does not introduce contaminants not normally associated with
virgin biomass materials (we describe what we consider to be clean biomass in section
VII.C.5 b). We believe clean biomass to include, but not necessarily be limited to: forest-
derived biomass (e.g., green wood; forest thinnings; clean and unadulterated bark; sawdust; trim;
and tree harvesting residuals from logging and sawmill materials); corn stover and other biomass
crops used specifically for energy production (e.g., energy cane, other fast growing grasses);
bagasse and other crop residues (e.g., peanut shells, agricultural seeds); wood collected from
forest fire clearance activities; trees and clean wood found in disaster debris; clean biomass from
land clearing operations; and clean construction wood.
In regard to used oil, for the reasons discussed later in section VII.D.4, we are including
on-spec used oil in the list of traditional fuels because we believe it meets our view of what is a
traditional fuel (i.e., fuels that have been historically managed as valuable fuel products rather
than being managed as waste materials). However, off-spec used oil will be considered a solid
waste, unless it is processed into a legitimate non-waste fuel, such as on-spec oil.
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b. Biomass. Biomass includes a wide range of secondary materials which can be
divided into two categories, cellulosic and non-cellulosic, as stated in the ANPRM.148 While the
ANPRM indicated that much of the biomass currently used as fuels are not solid waste since they
have not been discarded in the first instance and are legitimate fuel products, we specifically
requested comment on whether some biomass contains contaminants that are significantly higher
in concentration when compared to traditional fuel products.
Comments: Cellulosic Biomass
For the cellulosic biomass category, several commenters argued that resinated wood
products (e.g., board trim, sander dust, panel trim) used to manufacture particleboard, medium
density fiberboard, and hardboard are not discarded and are typically used on-site to either make
composites or are used as fuel. One commenter stated that "[i]t is also important to note the
quantity of formaldehyde actually present in these resonated wood fuels. It is minute. As the
resins cure, virtually all of the formaldehyde in the adhesive is cross linked into polymers and no
longer exists as formaldehyde. Current extraction tests on the highest formaldehyde content
products show levels to be less than 0.02%, using the standard industry extraction test for
formaldehyde from composites, EN 1203." Commenters also point out that formaldehyde is a
common product of incomplete combustion, suggesting that trace amounts of formaldehyde
would be present in the emissions irrespective of whether formaldehyde was present in the
residuals. One commenter noted that incomplete combustion of virtually all organic materials
produces carbon monoxide and formaldehyde. Commenters also stated that California rules on
product emissions will shortly push those numbers below 0.01%, and cite several studies that
indicate emissions from burning resinated wood residuals are not significantly different than
burning wood absent the resinated materials.149 Specific to panel trim, one commenter argued
that emissions are not expected to be any different from those generated from unadulterated
wood and traditional fuels like coal and oil that contain concentrations of Part 261, Appendix
VIII constituents that are orders of magnitude higher than in panel trim.
One commenter discussed the use of pulp and paper sludges as fuel. This commenter
states that because these residuals are primarily composed of biomass, emissions from burning
these materials are essentially the same as the emissions from burning other biomass fuels, such
as bark or wood. The commenter cited a report that found that the burning of kraft pulp mill
wastewater treatment residuals in bark boilers at levels below about 10 to 15 percent of total heat
input is not expected to lead to an increase in any of the criteria or criteria-related pollutants,
such as NOx, SO2, or VOC.150 Further, the commenter states that a comparison of emission data
for forty-eight organic compounds when burning wood residue and wood residue in combination
148	In the ANPRM, we did not distinguish between "clean" cellulosic biomass and that which is not. Therefore, the
comments discussed in this section are only in reference to cellulosic biomass that does not meet the definition of
"clean."
149	See U.S. EPA, "Wood Products in the Waste Stream: Characterization and Combustion Emissions, Vol. 1,"
November 1996. See also National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906,
"Alternative Fuels Used in the Forest Products Industry: Their Composition and Impact on Emissions." September
2005.
150	National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, "Alternative Fuels Used in
the Forest Products Industry: Their Composition and Impact on Emissions." September 2005.
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with bleached kraft mill wastewater treatment residuals (around 12 percent of total heat input) in
four wood-fired boilers showed no discernible differences in emissions of these organics when
the residuals were co-fired. A similar comparison was conducted for metals, showing no
discernable impact when burning these sludges.
Another commenter stated that treated wood (e.g., pentachlorophenol, copper-based
compounds, borate based compounds) also should be considered a fuel because it is not
discarded and can be safely burned in boilers. In addition, commenters stated that creosote
treated wood is a coal derivative and burning creosote would likely result in emissions no greater
than burning coal. Creosote is a distilled and homogenous product that should burn more
thoroughly than coal and is not burned in its pure form. Commenters also noted that creosote
treated wood is a combination of two materials we listed as traditional fuels. For these reasons,
it should qualify as a fuel. However, the same commenter noted that they would not be opposed
to EPA requiring CCA lumber to be removed from the fuel stream.
EPA's Response: Cellulosic Biomass
We agree that certain biomass (cellulosic biomass that is "clean" and non-cellulosic
biomass) materials can be legitimate fuels. We also generally agree with commenters that
secondary materials, such as secondary mill residues (i.e., residues such as sanderdust, board,
trim and breakage from the manufacture of reconstituted wood/panel products) and pulp and
paper mill residuals (i.e., primary and secondary wastewater treatment sludges)151 are likely
legitimate fuels.
Regarding resinated wood products, we acknowledge that we have limited compositional
data on these materials. As noted above, we did receive comments on the ANPRM concerning
the contaminant data of these materials, specifically in regard to formaldehyde and emissions
comparisons relative to burning wood that do not contain these resinated materials. Although
emissions comparisons are not a direct indicator of whether these fuels satisfy the legitimacy
criteria, we recognize that such data can be useful as an indicator of the contaminant levels in the
secondary material fuels relative to traditional fuels. Based upon what limited data we do have
regarding these materials, as well as comments received on the ANPRM, we have decided to
classify resinated wood residuals as non-wastes for purposes of this proposed rule, if they are
used as fuels within the control of the generator. (As we discuss in section VII.E of this
preamble, the Agency is considering resinated wood residuals under the alternative approach as
solid wastes when burned under the control of the generator for energy recovery, since as a
matter of policy, the Agency may want to define a broader definition of solid waste.) Thus,
given the general lack of data, we are requesting data and information both on the contaminant
levels of these materials, as well as the appropriateness of categorizing them as non-wastes.152
151	Primary sludges consist of wood fiber and inorganic materials and secondary sludges are primarily microbial
biomass.
152
It is worth noting that, in response to a request from EPA's Office of Air and Radiation (OAR), EPA's National
Center for Environmental Assessment (NCEA) initiated an update of the formaldehyde IRIS assessment to address
significant new scientific information that had become available on formaldehyde. EPA anticipates deriving an
inhalation reference concentration (RfC) and reexamining the inhalation cancer assessment as part of this update.
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Based on the data and information the Agency receives, we may decide that such secondary
materials are more appropriately defined as solid wastes.
We also acknowledge having limited data on pulp and paper sludges that are used as fuel.
As noted above, we did receive comments on the ANPRM about contaminants associated with
these secondary materials. Similar to resinated wood residuals, based on the limited data we
have, we also have decided to classify pulp and paper sludges that are used as fuels within the
control of the generator to be non-waste. (Like resinated wood residuals, the Agency also
decided to classify pulp and paper sludges as solid wastes when burned under the control of the
generator for energy recovery under the alternative approach being considered. See section
VII.E.). Given the limited data we have, we also are requesting comment both on the
contaminant levels of these materials, as well as the appropriateness of categorizing them as non-
wastes, and may decide based on the comments received to classify pulp and paper sludges as
solid waste when burned under the control of the generator in a combustion unit for energy
recovery when the rule is promulgated.
Although limited information was submitted in regard to painted wood or
pentachlorophenol, copper-based and borate-based compound treated wood materials and their
contaminant concentrations, we believe these secondary materials contain elevated levels of
contaminants relative to traditional fuels, and thus do not meet legitimacy criteria and should be
considered solid waste if burned in a combustion unit. (It should also be noted that to the extent
that any of these treated wood materials are identified as a hazardous waste, it would not be
eligible to be burned in a non-hazardous waste combustion unit.) In regard to creosote treated
lumber, we believe there is still a fair amount of uncertainty associated with the level of
contaminants (e.g., levels of polycyclic aromatic hydrocarbons present in creosote) in
comparison to traditional fuels. We, therefore, are requesting that commenters provide
additional data on contaminant levels associated with these non-hazardous secondary materials
relative to traditional fuels that are in use today as fuels.
Comments: Non-cellulosic Biomass
One commenter stated that animal manure should not be categorically excluded from the
definition of solid waste because it is inherently waste-like, is discarded, and does not meet the
legitimacy criteria for "handled as a valuable commodity." The commenter stated that manure
generated in concentrated Animal Feeding Operation (CAFO) are known to contain heavy
metals, halogens, dioxins, etc. Manure from CAFOs are discarded in two ways after it is
collected: some manure is recycled for land application (e.g., "used in a manner constituting
disposal") and excess manure is simply disposed.
The draft assessment has been reviewed by scientists and managers within NCEA and across EPA. EPA will release
a draft for public comment and independent expert scientific peer review, with a National Academy of Sciences
(NAS) panel review expected to commence in late April 2010, which will coincide with a formal public comment
process through the Federal Register.
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The same commenter acknowledged that manure can be recycled for use as bioenergy,
but cautioned that it should not automatically be exempt from the definition of solid waste. In
support of its position that manure recycled into bioenergy and used as fuel is still a solid waste,
the commenter cites the regulations at 40 CFR 261.2(e)(2)(ii), which lists materials burned for
energy recovery, used to produce a fuel, or contained fuels among materials that are solid wastes,
even if recycling of those materials involves use, reuse, or return to the original process. Overall,
the commenter is concerned with the large volumes of animal manure currently being generated
at animal feeding operations and the lack of oversight at recycling facilities to ensure that
recovery is immediate and happens without releasing any pollutants into the environment. Based
on the commenter's observations, current regulations (i.e. the 2008 CAFO NPDES Rule) still are
not sufficient to assure that CAFO operations will meet the two benchmarks of immediacy and
environmental care that define a "valuable commodity." They conclude that for manure to be
excluded from the definition of solid waste, it should have to meet numerous qualifying
conditions to show that the manure is being recycled.
EPA's Response: Non-cellulosic Biomass
Because the focus of this rulemaking is to determine which non-hazardous secondary
materials are or are not solid waste when burned as a fuel or ingredient in combustion units (not
when utilized for other purposes, such as land application), we are not making any determination
that manure is a solid waste 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 to make such determinations.
With respect to whether manure is a legitimate non-waste fuel, EPA recognizes that
manure has been used previously as a fuel, and is currently used as a fuel source in other
countries. In fact, some commenters have argued that manure should be considered a traditional
fuel, and if not, should at least be considered a non-waste fuel since they believe that manure
meets the legitimacy criteria. While we appreciate the information submitted in the comments,
we lack data sufficient to evaluate the legitimacy criteria for manure. Therefore, we request
information and data on how manure is handled from its point of generation to the point it is used
as a fuel, in order that EPA can determine whether manure would meet this legitimacy criterion.
In addition, EPA has limited data on the contaminant concentrations and Btu value of
manure to determine whether it would meet these legitimacy criteria. Therefore, we are
requesting that commenters provide additional information and data on the extent to which
manure (including materials, such as chicken litter) is currently used as a fuel, as well as data to
support whether these materials meet our legitimacy criteria, including the contaminant levels—
that is, they contain contaminants at levels comparable to traditional fuels and heating content of
the various types of manure.153 We will evaluate the information submitted during the public
comment period and will discuss our determination in the final rule.
153 Based on data provided to EPA by USD A, research conducted by the Texas Agricultural Experiment Station and
the Texas Cooperative Extension shows that manure has a dry, ash free heating value of 8,5000 Btu/lb, while other
research demonstrates the energy value of manure (as received) to be much lower (between 2,710-5,764 Btu/lb).
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On the other hand, if manure is processed into biofuels, by, for example, anaerobic
digesters such biofuels would be considered a legitimate non-waste fuel that has been processed
from a non-hazardous secondary material provided "the biofuel" meets the legitimacy criteria—
that is, managed as a valuable commodity, has a meaningful heating value and contains
contaminants at levels that are comparable to traditional fuel. We again acknowledge, however,
that we have limited data (such as how the biofuels are managed, once generated, contaminant
concentrations and Btu value) on biofuels that are produced from animal manures, and request
that commenters provide additional data on the extent to which manures are currently processed
into biofuels, as well as data to support whether these materials meet our legitimacy criteria,
including contaminant levels and heating content.
c. Used Tires. We discussed in the ANPRM that tires used as legitimate alternative
fuels can be categorized as a non-waste fuel if they have not been previously discarded (i.e., if
the used tires have not been abandoned and thrown away). The ANPRM further stated that used
tires collected and managed pursuant to a state tire oversight program, are not considered to be
discarded. The ANPRM also explained that discarded used tires that have been processed to
make a legitimate fuel product (such as TDF) would not be a solid waste. Furthermore, we
requested comment on whether used tires that fall within the category of secondary materials that
are discarded, but can be directly used as a legitimate fuel or ingredient without processing
because they are indistinguishable in all relevant aspects from a fuel or ingredient product (e g.,
whole tires) should not be considered a solid waste.
Comments:
Other than the states,154 commenters generally agreed with the approach outlined in the
ANPRM. Commenters did not agree, however, that whole tires taken from waste tire piles, but
not processed, should be considered solid wastes. Several commenters responded that tires
should be excluded from the definition of solid waste irrespective of where they are generated,
including from waste tire piles. Along the same lines, some commenters argued that regardless
of the source, scrap tires are indistinguishable from one another in terms of fuel/Btu value and air
emissions and that the only distinction is whether they have been previously discarded. Others
stated that extraction and reclamation from a waste tire pile should be sufficient processing to
classify a tire as a legitimate non-waste fuel.
EPA's Response:
As discussed in section VII.D.2, we now believe that whole used tires (even if collected
from tire dealerships and automotive shops and overseen by a state tire collection oversight
program) are initially abandoned and thus meet the plain meaning of discard. As a result, whole
used tires that are not processed into a legitimate fuel or ingredient (e.g., shredded/chipped with
steel belts removed) would be considered a solid waste. We acknowledge that whole tires can be
For more information, please refer to the background paper entitled, "USDA Response to EPA's Belief that Manure
that is Burned as a Fuel is a Solid Waste," which is located in the docket for today's rule.
154 For a discussion of state comments regarding used tires, see section VII.C. 1., "Comments from State Agencies."
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legitimately burned as fuel, but because they have been discarded, whole tires would be
considered solid wastes and subject to the CAA section 129 requirements unless processed into a
non-waste fuel product. See section VII.D.2 for a more detailed discussion on why we now
consider whole used tired to have been discarded by the original owner.
We are also proposing a process by which a facility or person can apply for a non-waste
determination for secondary materials that are not managed within the control of the generator.
As outlined in section VII.D.5, the purpose of the petition process is to recognize that some non-
hazardous secondary materials may remain outside the control of the generator and not be
processed into a fuel product, but still be a legitimate non-waste fuel product. As part of this
petition, the facility must demonstrate that the secondary material has not been discarded in the
first instance.155
We also are requesting comment on whether discarded materials, such as used tires that
have been abandoned and disposed of in waste tire piles and have not been processed (as defined
in this proposal), should not be considered solid wastes if they meet the legitimacy criteria and
are indistinguishable in all relevant aspects from a product or intermediate.
d. Used Oil. As indicated in the ANPRM, we consider off-specification (or "off-spec")
used oil that is collected from repair shops to have been discarded. Used oil that meets the on-
specification (or "on-spec") levels and properties of 40 CFR 279.11 is considered be a legitimate
non-waste fuel product. We requested comment on whether off-spec used oil managed pursuant
to the 40 CFR part 279 used oil management standards and which is burned for energy recovery
in certain types of combustion devices156 should be considered a legitimate non-waste fuel.
Comments:
Most commenters believe that off-spec (and on-spec) used oil should not be classified as
a solid waste. Various reasons were provided in support. Specifically, one commenter reasoned
that off-spec used oil should not be treated as a solid waste if it has been delivered to a legitimate
recycler for processing. Designation as a solid waste would lead to costly burning in hazardous
waste incinerators, burning in uncontrolled space heaters, and more undesirable disposal
methods. Many commenters also referred to Congress' intent to manage used oil differently and
EPA's regulatory structure for the management of used oil as evidence that used oil should not
be classified as a solid waste. They added that used oil is typically neither disposed of, thrown
away, nor abandoned, but is collected and contained. Used oil is a valuable product that is
subject to EPA's recycling presumption. Btu content is not necessarily lower than on-spec used
oil or virgin fuel, and contaminants, such as water, flashpoint, and metals can be effectively
addressed. In a similar, but slightly different view, a number of commenters argued that on-spec
155	The petition process for a non-waste determination would also require the petitioner to describe how the non-
hazardous secondary material satisfies the criteria outlined in the petition process, which includes whether it meets
the legitimacy criteria.
156	Devises include industrial boilers located at facilities that are engaged in a manufacturing process where
substances are transformed into new products, utility boilers used to produce electric power, steam, heated or cooled
air or other gases or fluids for sale, used oil fired space heaters provided the burner meets the provisions of 40 CFR
279.23, and hazardous waste incinerators subject to regulation under 40 CFR subpart O of parts 264 and 265.
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and off-spec used oil should be included in the list of traditional fuels. Since neither is
discarded, the presumption is that it is recycled. Only one commenter thought that off-spec used
oil should continue to be considered a solid waste within the RCRA framework.
EPA's Response:
We agree with the commenters who said that on-spec used oil should not be classified as
a solid waste. Based upon how we define traditional fuels (i.e. fuels that have been historically
managed as valuable fuel products rather than being managed as waste materials), we believe
that on-spec used oil should be considered a traditional fuel. In accordance with 40 CFR part
279, once used oil is determined to be on-spec, it is no longer regulated under the used oil
management standards.157 Used oil that has been determined to be on-spec has verified that it
contains contaminants at levels below the maximum concentration limits established in the
standards, such that the emissions resulting from the burning of on-spec used oil will not pose an
increased threat to human health or the environment than the emissions resulting from the
burning of virgin oil or diesel. This is because the contaminants of concern (i.e., those for which
maximum concentration levels have been set) present in on-spec used oil are either at the same
concentration or a lower concentration than virgin refined fuel oil.158
This approach is supported by Safe Food and Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir.
2003). The decision upheld an EPA rule that excluded from the definition of solid waste certain
recycled materials used to make zinc fertilizers (and the fertilizers themselves) as long as they
were not speculatively accumulated, met certain handling, storage and reporting conditions, and
were "identical" to fertilizers made from raw materials, i.e., they had concentration levels for
certain chemicals that fall below specified thresholds. 350 F.3d at 1265. We believe on-spec
used oil satisfies these criteria.
In regard to off-spec used oil, we disagree that it should not be classified as a solid waste.
The used oil regulations are structured such that off-spec used oil is managed within the
constraints of the used oil management standards until it is processed into on-spec used oil or it
is properly disposed of. It may only be burned in specific types of combustion devices.159
Although off-spec used oil may be managed within the control of the generator, it contains
contaminants at levels that are not comparable to traditional fuels, and thus would not be
considered a legitimate non-waste fuel per the legitimacy criteria. Therefore, today's proposed
rule considers off-spec used oil as a solid waste subject to the CAA section 129 requirements, as
157	Once used oil is claimed to be on-spec and the marketer complies with the requirements for analysis and record
retention, notification, and record tracking shipment to on-specification burners, it is no longer subject to other
management standards. We note that today's proposed rule does not change any of the regulations in place that
regulate on-spec used oil.
158	See Used Oil Final Rule, 50 FR 49181 (November 29, 1985).
159	These devices, listed in 40 CFR 279.61, were determined to not pose significant health risks when burning off-
spec used oil because they typically are equipped with particulate control equipment (as required by CAA permits).
Nonindustrial boilers (e.g., those located in apartment and office buildings, schools, and hospitals), on the other
hand, were found to pose significant risk when off-spec used oil is burned because they are typically very small and
may not achieve complete combustion and do not have any emission control equipment.
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wells as state, and local requirements, unless it is processed to meet the on-spec used oil limits
specified in 40 CFR 279.11.
It also should be noted that off-spec used oil may be burned in used oil-fired space
heaters pursuant to 40 CFR part 279, provided: 1) the heater burns only used oil that the owner
or operator generates or used oil received from household do-it-yourself used oil generators; 2)
the heater is designed to have a maximum capacity of not more than 0.5 million Btu per hour;
and 3) the combustion gases from the heater are vented to the ambient air. The RCRA used oil
regulations base this provision on a finding that uncontrolled emissions from these sources do
not pose a significant threat to human health and the environment.160 However, consistent with
our determination that off-spec used oil be considered a solid waste when burned as a fuel, we
believe that off-spec used oil managed within the control of the generator would not qualify for
the generator controlled exclusion when burned in a used oil fired-space heater, since
contaminant levels are not comparable to traditional fuels. Therefore, we are proposing that off-
spec used oil combusted at a unit that is within the control of the generator would be solid waste.
We request comment on this approach, as well as any supporting information.
e. Coal Refuse/Coal Combustion Residuals. The ANPRM identified coal refuse (i.e.,
mining rejects and recovered landfilled ash) as a solid waste because it has been discarded and
has not been subsequently processed for use as a fuel. We solicited comment on whether there
are circumstances under which these materials have been discarded, but not processed, and can
be considered as non-waste fuels once they are removed or recovered from the "discard"
environment and managed as legitimate fuels.
Comments:
Several commenters responded that coal refuse should not be classified as a solid waste.
One commenter argued that there is no basis for continuing to classify an alternative fuel or
ingredient as a solid waste merely because it does not have to undergo some type of processing
before being used. The same commenter also indicated that the recovery of ash and mill rejects
from disposal sites all involve some degree of processing. The materials have to be excavated,
stored, and transported to their designated uses where they are also often subject to the same
types of processing activities that are associated with the mining and management of virgin coal
(i.e., screening, sizing, and chemical analysis to identify Btu, ash characteristics and sulfur
content). Given the significant costs associated with the extraction of these materials, including
excavation and handling, as well as the nearly identical nature of these materials to traditional
fuels and ingredients, the extraction operations themselves constitute the requisite degree of
processing necessary to be viewed as a non-waste. One commenter stated that they were aware
of one electric utility that in the past recovered high-carbon content ash from a disposal facility
that it owns, and used the ash as a fuel source by supplementing the coal used in one of their
utility boilers. The same company today takes high-carbon fly and bottom ash directly from
several existing boiler units and burns it at their power generating station. This commenter noted
that there are at least four patented processes for removing unwanted carbon from fly ash that
160 Used Oil Final Rule, 50 FR 49194 (November 29, 1985).
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allow the processed ash to produce both technically compliant fly ash for use in concrete and a
separate carbon stream that can be re-introduced into the boiler for its fuel value.
One commenter contended that coal refuse is a solid waste due to its toxicity levels in
comparison to normal coal. Specifically, waste coals can have up to four times more mercury
and chromium, and three times more lead than other coals.
EPA's Response:
As discussed in the Material Characterization Paper developed for this rulemaking, large
volumes of coal refuse piles were accumulated at mining sites from the time mining first began
in the Appalachians through the late 1970s. Beginning in the late 1970s, laws were enacted that,
for the first time, required stabilization and reclamation of mining sites, including coal refuse
disposal piles and fills. Current mining operations continue to generate the material, though
likely at lower rates than in previous decades.
For purposes of this proposal, we are therefore differentiating between coal refuse that
was generated in the past and placed into "legacy" piles, and the current generation of coal
refuse. Legacy piles of coal refuse would clearly be considered to be disposed of and
abandoned, thus meeting the definition of a solid waste material. We would not consider
currently generated coal refuse to be abandoned or disposed of and, therefore, would not be
considered a solid waste.
With regard to coal refuse from legacy piles, the processing of coal refuse for use as a
fuel or ingredient involves separation through the use of screens or grizzlies, blending, crushing,
and some drying. Although we understand that virgin coal is similarly processed, we believe
that such operations would constitute "minimal processing" and would not meet the processing
definition as proposed. See section VII.D.4 for a discussion of what does and does not constitute
"processing" as defined in this proposal. Therefore, because coal refuse from legacy piles has
been discarded and does not undergo a sufficient level of processing, it is considered a solid
waste and would be subject to the CAA 129 requirements if burned in a combustion unit.
We note that one commenter contended that coal refuse contained elevated levels of
mercury, chromium, and lead when compared to other coals. We recognize that available data
show that coal refuse generally has higher metals concentrations than non-refuse coal
concentrations. Although coal refuse can contain metals concentrations that are higher than
found in virgin coal, data also show that emissions levels from some facilities burning coal
refuse (namely those equipped with circulating fluidized beds (CFBs)) are lower than most
existing pulverized coal utility boilers.161 For the purposes of this proposal, however, it is not
necessary to discuss whether coal refuse from legacy piles satisfies the contaminant requirement
161 CFBs ability to achieve lower emissions levels is due to several factors: (1) CFB boilers are often newer than
many existing pulverized coal utility boilers and may be equipped with better particulate matter (PM) controls; (2)
CFBs utilize lower operating temperatures, which result in lower metal and NOx emissions; and (3) CFB boilers
often add limestone to their feed to control S02 emissions, which results in greater metal fixation to the ash.
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of the legitimacy criteria, given that we believe that such coal refuse is a solid waste because it is
discarded and is not sufficiently processed into a fuel product.
We are also differentiating between mined landfilled ash, which generally refers to
landfilled coal ash, from coal refuse, which we generally characterize as coal mining rejects that
have been placed in waste piles (known as gob or culm, for example).162 Coal combustion
residuals (CCRs) that have been discarded in the first instance (e.g., coal ash mined from
landfills) would be considered solid waste unless they are processed into legitimate non-waste
fuel products. It appears that the patented processes described by the commenter that separates
carbon from the fly ash to produce a fuel would satisfy the processing requirement included in
this proposal. However, until the Agency has additional information, we are not in a position to
indicate that such processing is sufficient to produce a non-waste fuel. Therefore, we are
requesting that commenters provide additional information explaining how this processing is
conducted, and the extent to which these high carbon fuels are produced nationwide. With
respect to high-carbon fly and bottom ash taken directly from existing boiler units and burned at
power generating stations, we believe that such secondary materials are not discarded and would
not be considered a solid waste if it was managed within the control of the generator and satisfies
the fuel legitimacy criteria.
Regarding the commenter that indicated coal fly ash and mill rejects are often subjected
to the same types of processing activities that are associated with the mining and management of
virgin coal {i.e., screening, sizing, and chemical analysis to identify Btu, ash characteristics and
sulfur content), we believe that screening, sizing, and chemical analysis constitutes a minimal
level of processing, and would not satisfy the processing requirement of this proposal. Although
we recognize that sizing of materials is an important processing step for fuels in order to improve
combustion efficiency, we believe this represents an inadequate level of processing to change a
discarded material into a product fuel and, therefore, these materials would be considered solid
wastes under today's proposal. However, we request that commenters provide additional
information on the extent to which CCRs are recovered from the discard environment (e.g.,
landfills) and used as fuels. We also request that commenters provide more detailed information
on how these secondary materials are processed, and whether these materials might satisfy the
legitimacy criteria for fuels.
f. Sewage Sludge. Sewage sludge or "wastewater treatment sludge" as referred to in the
ANPRM, was one of several non-hazardous secondary materials that we solicited comment as to
whether it is a legitimate alternative fuel and thus would not be solid waste if it has not been
previously discarded.
Comments:
All commenters who addressed this issue argued that sewage sludge should not be
classified as a solid waste. One commenter specifically pointed to the RCRA statutory definition
of solid waste, stating that Congress expressly exempts solid and dissolved materials in domestic
sewage processed at Publicly Owned Treatment Works (POTWs). Rather, sewage sludge should
162 The ANPRM included landfill ash in its description of coal refuse.
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be regulated comprehensively under the Clean Water Act (CWA), or to the extent necessary to
meet CAA obligations, EPA should regulate the combustion of POTW sewage sludge under
CAA section 112. Additionally, it was put forth that if the Agency disagreed with the assertion
that the RCRA statute requires the Agency to exempt sewage sludge from the definition of solid
waste, that the Agency provide a regulatory exclusion for sewage sludge burned in incinerators
in order to preserve the current framework for regulating sewage sludge managed under section
405 of the CWA to avoid redundancy. This commenter was also concerned about the
implications a determination that sewage sludge is solid waste when incinerated would have on
how states regulate sewage sludge managed for different purposes (e.g., land application).
Two commenters stated that sewage sludge meets all three legitimacy criteria for fuels. It
is handled as a valuable commodity by virtue of it being continuously dewatered and directly
injected into the incinerator; it is not diverted or stored and every effort is made to maximize the
quantity of sludge to be combusted. One commenter stated these materials have meaningful
heating value, given that it recovers a net energy value of 4,300,000 Btus/hour of useable thermal
energy from its combustion. Also, the CWA section 405 regulations provide risk-based limits
for contaminants when incinerated, such that as long as the contaminant level is below the limits,
it does not pose a significant health risk.
EPA's Response:
We agree with commenters that the RCRA statutory definition of solid waste excludes
the solid or dissolved material in domestic sewage. This is evidenced by the RCRA hazardous
waste regulations that extend this exclusion to mixtures of hazardous waste with domestic
sewage, provided that the mixture occurs in a pipeline en route to a POTW. See 40 CFR
261.4(a)(1). However, we do not agree with the commenters that the Domestic Sewage
Exemption (DSE) applies to the sludge generated from the treatment process and thus, sewage
sludge is a solid waste if it is discarded.163 We believe that sewage sludge burned without energy
recovery (i.e., burned for destruction) in an incinerator is discarded, and thus a solid waste.
Further, the Agency is not proposing to provide a regulatory solid waste exclusion for sewage
sludge burned in incinerators that would preserve the current framework for regulating sewage
sludge managed under section 405 of the CWA to avoid redundancy. However, we request
comment on whether such an approach is within our discretion. Regarding the commenter's
concerns about possible impacts on how states regulate sewage sludge managed for different
purposes (e.g., land application), as discussed in more detail in Section VIII, through this
rulemaking, EPA is articulating the narrow definition of which non-hazardous secondary
materials are or are not solid waste when used as fuel for energy recovery or as ingredients in
combustion units. We are not making solid waste determinations that cover other possible
163 EPA has long viewed sewage sludge generated from POTWs as a solid waste, beginning with the 1980
Identification and Listing of Hazardous Waste rulemaking. In this final rule, EPA stated that the DSE is "only
applicable to non-domestic wastes that mix with sanitary waste in a sewer system leading to a POTW." See 45 FR
33097 (May 19, 1980). In the same rule, EPA further said it decided not to exclude sewage sludge from regulation
under RCRA, since the statutory expressions regarding the definitions of "solid waste" and "sludge" was clear. (See
45 FR 33101).
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secondary material end uses. In EPA's view, these regulations should have no effect on state
programs that choose to regulate this material in different ways and under different authorities.
Two commenters indicated that many POTWs recover energy in the form of usable heat
from the incineration of sewage sludge via waste heat boilers. Although waste heat boilers are
useful devices for providing energy in the form of steam for secondary processes, the Agency
does not regard them as legitimate energy recovery devices because they receive their energy
input from the combustion of off-gases via a separate combustion chamber. Under the RCRA
program, a legitimate energy recovery device is one that meets the definition of a boiler or an
industrial furnace (see 40 CFR 260.10). Among other criteria, a boiler's combustion chamber
and primary energy recovery section(s) must be of integral design, unless it falls under the
process heater or fluidized bed combustion exemption. Thus, a combustion chamber that is
connected by a duct to a waste heat boiler (or recuperator/heat exchanger) does not qualify as a
legitimate energy recovery device. The CAA program views waste heat recovery units (i.e.,
external to the combustion chamber) similarly. Waste heat recovery units are designed to cool
the exhaust gas stream, and/or to recover, indirectly, the useful heat remaining in the exhaust gas
from a combustion unit that has some other primary purpose (such as an institutional waste
incinerator). The presence of a waste heat recovery unit on the exhaust gas does not change the
fact that the unit combusting the secondary material is primarily an incineration unit burning
waste for disposal purposes. See Other Solid Waste Incinerators (OSWI) final rule at 70 FR
74870 at 74876, (December 16, 2005). Therefore, sewage sludge burned in a waste heat
recovery unit would not satisfy the meaningful heating value legitimacy criteria and would thus
be considered to be burning solid waste (for more discussion on the legitimacy criteria, see
section VII.D.6).
The Agency also notes that data generally shows that municipal sewage sludge contains
metals that are typically higher in concentrations when compared to traditional fuels (e.g., coal
and fuel oil). See the table below for a comparison of the concentration of certain toxics of
municipal wastewater treatment sludges to coal.
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Comparison of Toxics of Municipal Wastewater Treatment Sludges to Traditional Fuels164
Element
Sewage Sludge
Coal
(mg/kg)
40-City Study
(mg/kg dry weight)
National Sewage Sludge Study
(mg/kg dry weight)
Arsenic
9.9
6.7
10
Cadmium
69
6.9
0.5
Chromium
429
119
20
Copper
602
741
Not available
Lead
369
134.4
40
Mercury
2.8
5.2
0.1
Molybdenum
17.7
9.2
Not available
Nickel
135.1
42.7
20
Selenium
7.3
5.2
1
Zinc
1,594
1,202
Not available
Sewage sludge findings in this table are for final sludge which is defined as the liquid, solid, or semi-solid residue
generated during the treatment of domestic sewage in a treatment works, receiving secondary treatment or better, and
which may include sewage sludge processed to meet the land application standards.
The Agency does not believe that sewage sludge would meet the legitimacy criteria for
contaminants. Therefore, the Agency is proposing that sewage sludge, generated from POTWs
and when combusted, be classified as a solid waste, and subject to the CAA Section 129
requirements.
F. Comments on Specific Materials Used as Ingredients
The ANPRM identified a number of non-hazardous secondary materials that we believe
are currently being used as ingredients in combustion processes (i.e., blast furnace slag; CKD;
coal combustion residual group (fly ash, bottom ash, and boiler slag); foundry sand; silica fume;
and secondary glass material). The ANPRM solicited comment on whether or not these non-
hazardous secondary materials are legitimate ingredients per the legitimacy criteria, and
requested additional data and/or information supporting whether these secondary materials are
legitimate ingredients. The majority of comments submitted were in regard to: CKD, CCRs,
foundry sand, and blast furnace slag/steel slag.
a. Cement Kiln Dust. For CKD, the ANPRM indicated that CKD is not a solid waste if
it is recycled within the continuous clinker production process.
Comments:
One commenter responded that they strongly support this view, but that other CKD which
may be available could be useful if industry could find a means to incorporate this viable ingredient
into the process. Thus, they believe that any EPA interpretation regarding the use of CKD must
allow for access of the material irrespective of where the ingredient is maintained prior to use.
164 More information on the composition of municipal wastewater treatment sludges can be found in the Materials
Characterization Paper on Wastewater Treatment Sludge, which has been placed in the docket for today's proposed
rule.
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EPA's Response:
As explained in section VII.D.3, we are proposing that non-hazardous secondary materials
used as ingredients in combustion units that are not discarded in the first instance would not be
considered a solid waste provided they satisfy the legitimacy criteria for ingredients (discussed in
section VII.D.6.b). This proposal does not assume that ingredients used in combustion units that are
not managed within the control of the generator are discarded materials (as is the case for non-
hazardous secondary material fuels) since we believe that non-hazardous secondary materials used as
ingredients in manufacturing processes, such as cement kilns are commodities managed within
continuous commerce and are used as an integral part of the manufacturing process. That is,
secondary materials that are directly used (or in the case of previously used materials, reused),
function as raw materials in normal manufacturing operations or as products in normal commercial
applications, and thus, EPA has interpreted the definition of solid waste as excluding secondary
materials recycled in ways that most closely resemble normal production processes.
With respect to the comment that our interpretation regarding the use of CKD must allow
for access of the material irrespective of where the ingredient is maintained prior to use, it is not
clear what point the commenter is making. To the extent that the CKD has not been discarded in
the first place, we are proposing that the use of CKD in a cement kiln would not be considered a
solid waste whether it remains under the control of the generator or is transferred to another
person, so long as it meets the legitimacy criteria. However, if CKD has been discarded, its use
as an ingredient in the cement kiln would be considered combustion of a solid waste, (and the
cement kiln would be subject to the CAA section 129 requirements), unless it has been processed
(as defined in section VII.D.4) to produce a non-waste ingredient.
b. Coal Combustion Residuals. The ANPRM identified what was considered to comprise
the CCR group: fly ash, bottom ash, and boiler slag. Similar to CKD, it was stated that coal fly
ash that is handled as a commodity within continuous commerce when it is marketed to cement
kilns as an alternative ingredient is not discarded. Under the ANPRM approach, if the CCR
product was previously discarded, such non-hazardous secondary materials would be solid
wastes, unless they were processed into a legitimate ingredient product. However, we solicited
comment on the situation where a discarded material is recovered from the environment and
directly used as an ingredient (i.e. without processing). Additionally, we solicited comment on
the extent to which non-hazardous secondary materials that have already been discarded (e.g.,
coal fly ash that has been landfilled) are later processed and used as ingredients in combustion
units, as well as requested descriptions of the types of processing that these secondary materials
undergo.
Comments:
Several commenters believe CCRs can be either legitimate fuels or ingredients when used
in a combustion unit. One commenter stated that there are a number of cement kilns that use or
have used high carbon fly ash as a fuel and ingredient. As an ingredient, the constituents within
the fly ash are similar to those required from natural materials (such as shale, marl or limestone)
in that they contain fractions of silica, iron and aluminum needed in the kiln. As a fuel, the
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relatively high carbon content imparts energy through its combustion, reducing the need for
some portion of fossil or other fuels for the kiln.
EPA's Response:
As discussed above (and as further discussed in Section VII.D.6.b), we are proposing that
non-hazardous secondary materials used as ingredients in combustion units that are not discarded in
the first instance would not be considered a solid waste provided they satisfy the legitimacy criteria
for ingredients. Commenters point out that CCRs can serve both as ingredients, as well as fuel
supplements. This raises the question of whether these types of secondary materials should be
treated like non-hazardous secondary materials used as fuels (where we assume they are discarded if
they are managed outside the control of the generator), as opposed to ingredients (in which case they
are not solid waste even if they are managed outside the control of the generator provided they satisfy
the legitimacy criteria and have not been discarded in the first instance). It also raises the question as
to whether these materials should be required to satisfy the legitimacy criteria for fuels or for
ingredients, or both. We do not believe it would be appropriate to require these types of secondary
materials to satisfy the criteria of both fuels and ingredients. As a result, we are proposing that the
decision to treat them as fuels or ingredients should be based on the primary purpose of using the
non-hazardous secondary material in the cement kiln. With respect to CCRs, we believe the primary
purpose of their use is as an ingredient; thus, provided the CCRs satisfy the legitimacy criteria for
ingredients and are not discarded in the first instance, they would not be considered solid waste.165
However, we specifically solicit comment on this point, and in particular, whether the use of CCRs is
primarily used for their ingredient value as opposed for their fuel value.
Comment:
With respect to the extent that CCRs have been discarded, but are later processed, one
commenter noted that there are at least four patented processes for removing unwanted carbon
from fly ash that would allow the processed ash to produce both technically compliant fly ash for
use in concrete and a separate carbon stream that can be re-introduced into the boiler for fuel
value. Another commenter stated that coal fly ash (and mill rejects) recovered from disposal
sites all involve some degree of processing, in that the materials have to be excavated, stored,
and transported to their designated uses. The materials are also often subject to the same types of
processing activities that are associated with the mining and management of virgin coal {i.e.,
screening, sizing, and chemical analysis to identify Btu, ash characteristics and sulfur content).
Finally, one commenter disagreed with our position on CCRs. The commenter believes that
CCRs are wastes due to their high concentration of contaminants, predominantly mercury.
EPA's Response:
In regard to when a discarded material is recovered from the environment and directly
used as a fuel or ingredient, we are proposing that the secondary material is a solid waste, unless
it undergoes a sufficient level of processing to produce a legitimate fuel product or ingredient.
165 We note that used tires provide both fuel value and ingredient value in cement kilns. In this instance, however,
we believe the primary purpose of using tires in a cement kiln is to recover their energy value, and therefore believe
tires should satisfy the fuel criteria in determining whether the materials are discarded and legitimate.
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As discussed in detail in section VII.D.4, when a non-hazardous secondary material has been
discarded, unless sufficient processing occurs to change the material to produce a legitimate fuel
product or ingredient, it would remain a solid waste under this proposal. However, we are also
requesting comment on whether such non-hazardous secondary materials that have been
discarded and shown to be a legitimate fuel or ingredient product, should nevertheless be
considered a legitimate non-waste fuel or ingredient, even if the non-hazardous secondary
material does not undergo processing at all or an adequate amount of processing.
As previously described for processed CCR's that are used as fuels, it appears that the
patented processes described by the commenter that separates carbon from the fly ash to produce
technically compliant fly ash for use in concrete would satisfy the processing requirement
included in this proposal; however, we are requesting that commenters provide additional
information explaining how this processing is conducted, and whether this type of fly ash is used
as an ingredient in the clinker production process.
Regarding the commenter that indicated that coal fly ash and mill rejects are often subject
to the same types of processing activities that are associated with the mining and management of
virgin coal {i.e., screening, sizing, and chemical analysis to identify Btu, ash characteristics and
sulfur content), we do not believe that screening, sizing, and chemical analysis by itself is a
sufficient level of processing that would render a discarded material into a non-waste ingredient
product. As we noted previously in Section VII.C.5.e., while we recognize that screening,
sizing, and chemical analysis can be important for producing traditional fuels, we also are
proposing that such processing is not sufficient to change a waste-derived fuel into a product
fuel. Thus, such secondary materials that undergo such minimal processing are still considered
waste-derived fuels because such processing of CCRs, even with screening and chemical
analyses, would not be sufficient to produce a non-waste ingredient. However, we request that
commenters provide additional information as to the extent to which CCRs are recovered from
the discard environment (e.g., landfills) and used as ingredients in cement kilns, and if so, we
request commenters provide more detailed information on the extent to which these CCRs are
processed, and thus, might satisfy our proposed definition of processing in section VII.D.4.
In addressing the commenter who argued that CCRs are solid wastes due to their high
concentration of contaminants, we begin by noting that the chemical properties of CCRs are
influenced to a great extent by those of the coal burned, the type of combustion unit, and the air
pollution controls applied.166 We are also aware that fly ash may contain various levels of
metals, such as vanadium, zinc, copper, chromium, nickel, lead, arsenic, and mercury.167
However, in a recent Report to Congress that addressed the use of these secondary materials as
ingredients in cement and concrete applications, the overall conclusion reached with respect to
166	For more information on the different types, or ranks, of coal, please refer to the Materials Characterization Paper
on Traditional Fuels and Key Derivatives, which is located in the docket of today's proposed rule.
167	Listed by relative frequency. See "Technical Background Document for the Report to Congress on Removing
Wastes from Fossil Fuel Combustion: Waste Characterization." U.S.EPA. March 15, 1999.
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the perceived safety health risk barriers was a positive one, in that the risk analyses did not
identify significant risks to human health and the environment associated with these uses.168
The Report to Congress also identifies several industry stakeholders and state agencies
that have recognized that regulatory programs for the control of mercury and NOx in electric
utility air emissions (and the necessary new emission control technologies and configurations
necessary to achieve emissions reductions) can potentially result in increased carbon levels in
coal fly ash that impact the ability to use the ash as a supplementary cementitious material.169
Consequently, EPA is studying the possible effects of new air emission control technologies and
configurations on the composition of CCRs and publishing its findings in a series of reports.170
Thus, we request comment on whether advanced emission control technologies, such as carbon
control technologies for mercury and NOx, are resulting or will result in increased levels of
contaminants in coal ash to the extent that coal ash would not satisfy our legitimacy criteria.
c. Foundry Sand. Similar to the previously discussed ingredients, we requested data
and/or information supporting whether foundry sand is discarded and if not discarded, whether it
meets the legitimacy criteria.
Comment:
One commenter responded and stated that foundry sand meets all four legitimacy criteria
for ingredients. The commenter offered several examples of applications for foundry sand in
support of why it should not be a solid waste; however, very little information was provided in
the context of utilizing foundry sand as an ingredient in a combustion process.
EPA's Response:
Since this proposal is limited to those situations where the non-hazardous secondary
material is used as a fuel or ingredient in a combustion process, examples of using foundry sand
in other applications is not directly relevant. However, as previously explained, we are proposing
168	"Study on Increasing the Usage of Recovered Mineral Components in Federally Funded Projects Involving
Procurement of Cement or Concrete to Address the Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users. Report to Congress." June, 3, 2008. EPA530-R-08-007. When analyzing perceived
safety and health risk barriers associated with the beneficial use of recovered mineral components (including CCRs
et al), this study concluded that "Findings from [several cited] analyses did not identify significant risks to human
health and the environment associated with the beneficial uses of concern. In addition, [EPA] identified no
documents providing evidence of damage to human health and the environment from these beneficial uses. Our
overall conclusions from these efforts, therefore, are that encapsulated applications, including cement and concrete
uses, appear to present minimal risk." Id. at 4-11.
169	Id at 4-4.
170	A series of reports have been and are being developed by U.S. EPA's Office of Research Development. To date,
three documents have been finalized, including: (1) "Characterization of Mercury-Enriched Coal Combustion
Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control." EPA-600/R-06/008. Feb. 2006;
(2) "Characterization of Coal Combustion Residuals from Electric Utilities Using Wet Scrubbers for Multi-Pollutant
Control." EPA-600/R-08/077. July 2008; and (3) "Characterization of Coal Combustion Residuals from Electric
Utilities Using Multi-Pollutant Control Technology - Leaching and Characterization Data." EPA-600/R-09/151.
December 2009.
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that non-hazardous secondary materials used as ingredients in combustion units that are not discarded
in the first instance would not be considered a solid waste provided they satisfy the legitimacy
criteria for ingredients (discussed in section VII.D.6.b).
d. Blast Furnace Slag/Steel Slag. The ANPRM also requested data and/or information
regarding blast furnace slag and steel slag and their use as legitimate ingredients and thus,
whether they are or are not considered solid waste.
Comments:
Two commenters responded that steelmaking slag and mill scale should be excluded from
the definition of solid waste because they meet all four legitimacy criteria for ingredients. With
respect to our solicitation for comment on when a material is previously discarded and has been
processed into a legitimate ingredient product, one commenter responded that current practice to
obtain these materials requires the procurement of a mining license and operating practices that
are similar to processing of natural aggregates (though drilling and blasting practices are not
required for recovery). In particular, iron and steel slag aggregates are removed by ripping and
digging, followed by magnetic separation, crushing, further magnetic separation and finally sized
by screening. They are then loaded and weighed in customer trucks subject to quality assurance
and quality control for comparable virgin aggregate intended for the same use.
EPA's Response:
As with the previous ingredients, we are proposing that blast furnace and steel slag used as
ingredients in combustion units that are not discarded in the first instance would not be considered a solid waste
provided they satisfy the legitimacy criteria for ingredients. If these materials, as described by the commenter, are
considered to have been discarded in the first instance, then they would have to be sufficiently processed into
ingredient products that satisfy the legitimacy criteria in order to be classified as a non-waste ingredient. Based on
the processing operations described above, it appears that blast furnace and steel slag undergo
sufficient processing; however, before the Agency concludes this to be the case, we request that
commenters provide more detailed information regarding the level of processing that occurs.
G. Legitimacy Criteria
The ANPRM discussed the following legitimacy criteria specific to fuel products that are
used in combustion processes: (1) handled as valuable commodities; (2) have meaningful
heating value; (3) and contain contaminants that are not significantly higher in concentration
than traditional fuel products. Likewise, for ingredients, the ANPRM listed the following
criteria: (1) handled as a valuable commodity; (2) the non-hazardous secondary material
provides a useful contribution; (3) the recycling results in a valuable product; and (4) the product
does not contain contaminants that are significantly higher in concentration than traditional
products. We requested comment on the criteria themselves and whether they are reasonable for
non-hazardous secondary materials.
a. General
Comments: Application of Legitimacy Criteria
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Commenters provided various viewpoints on the appropriateness of the legitimacy
criteria for non-hazardous secondary materials that are used as fuels or ingredients. Several
commenters disagreed with the application of the same subtitle C legitimacy definition for
determining whether non-hazardous secondary materials are solid waste under RCRA subtitle D
because non-hazardous secondary materials do not pose the same hazards. However, many of
the commenters agreed with the application of the subtitle C legitimacy principles, but also
argued that the criteria must be flexible to account for increasing use and changes in
commodities, technologies, markets, and fuel prices and should not be more onerous than the
legitimacy test codified at 40 CFR 260.43. Commenters also requested clarification as to
whether all criteria need to be met, but urged EPA to recognize that legitimate uses are possible
even if not all criteria are met.
EPA's Response: Application of Legitimacy Criteria
First, we would note that there are two questions that the Agency needs to answer: (1)
whether or not the non-hazardous secondary material is a fuel product or ingredient product, or
whether the material has been discarded and is therefore a solid waste, which includes waste-
derived fuels or ingredients and (2) whether the non-hazardous secondary material is being
legitimately and beneficially used or recycled.
With respect to the legitimacy question, EPA believes it important and crucial to develop
a set of legitimacy criteria to make sure that the fuel product and ingredient product are being
legitimately and beneficially used and not simply being discarded via sham recycling. The
definition of legitimate recycling developed for subtitle C hazardous secondary materials
carefully considered the history surrounding the uses of materials, as well as the applicable case
law with respect to the meaning of discard. Likewise, those same principles are pertinent to how
a non-hazardous secondary material is determined not to be a solid waste. Therefore, we are
proposing to codify general legitimacy criteria that use the same basic framework that has been
established for the subtitle C hazardous waste regulations, but that are also tailored specifically
for application to non-hazardous secondary materials that are used as fuels or ingredients in
combustion units. See 40 CFR 241.3(d) for the proposed regulatory text of the legitimacy
criteria and, for comparison see 40 CFR 260.43 in final regulations for the DSW hazardous
waste legitimacy provisions. The rationale for the non-hazardous secondary materials legitimacy
provisions (including comparisons to the DSW legitimacy provision) is discussed in section
VII.D.6.
Commenters also suggested that the legitimacy criteria must be flexible to account for
increasing use and changes in commodities, technologies, markets, and fuel prices and should
not be more onerous than the legitimacy definition codified at 40 CFR 260.43. We agree with
these commenters and have proposed qualitative criteria that we believe provide the flexibility
needed in evaluating these secondary materials that will accommodate such changes. The
legitimacy criteria are structured to distinguish between legitimate reuse/recycling and disposal
(i.e., sham recycling), while at the same time not impose restrictions on the types of non-
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hazardous secondary materials that may be of value in the future. For a detailed discussion of
the proposed legitimacy criteria, see section VII.D.6.
In regard to the commenters who requested clarification on whether all criteria need to be
met, we believe that each of the criteria is important and addresses certain issues that need to be
assessed. Therefore, each criterion must be met in order for the non-hazardous secondary
material to be considered to be a legitimate non-waste fuel or ingredient. Thus, today's proposal
requires that in evaluating the legitimacy criteria, the owner/operator of the combustion unit must
assure that the non-hazardous secondary material meets all of the criteria.171 See section
VII.D.6. for additional discussion.
Comment: Ingredients (General)
We also received one general comment regarding the legitimacy criteria for ingredients.
The commenter argued that the determination is not applicable for any material that is within a
process and is being recycled in that process, and should not have to be justified as a secondary
material, since closed-loop systems do not manage solid waste.
EPA's Response: Ingredients (General)
We generally agree with the commenter. That is, to the extent that the non-hazardous
secondary material has not been discarded in the first instance, which we presume it would not
be as part of a closed-loop system, and such secondary material meets the legitimacy criteria, it
would not be considered a solid waste when combusted. Thus, as an example, where CKD is
recycled back into the cement kiln, and meets the legitimacy criteria, it is not solid waste.
b. Fuels or Ingredients Being Managed as Valuable Commodities
Comments:
For this criterion, most commenters generally agreed with the Agency that such non-
hazardous secondary materials should be managed as a valuable commodity, but argued that a
specified containment system should not be a mandatory part of the criteria. One commenter
suggested that rather than focus on containment, the focus should be on whether the non-
hazardous secondary material has value for future use. Another commenter suggested that a
more appropriate requirement is that the non-hazardous secondary material should be stored in a
manner that preserves their economic value and avoids damaging releases to the environment.
171 In EPA's final definition of solid waste rule regarding hazardous secondary materials, EPA codified a "legitimate
recycling provision." See 40 CFR 260.43. This legitimacy provision has two parts. The first part includes two
factors that must be considered and met, which are considered the core of the legitimacy factors. The second part of
the legitimacy provision consists of two factors that must be considered, but need not be met because the Agency is
aware of situations where a legitimate recycling process exists, but may not conform to one or both of these factors.
For further discussion of the legitimacy factors in the hazardous waste rules, see section VII.C.7 of this preamble
and the final definition of solid waste rule (October 30, 2008 beginning on 73 FR 64700). Thus, the application of
the legitimacy provision proposed in this rule is different than that promulgated in the final definition of solid waste
rule in that all of the criteria to be considered in today's proposed rule must both be considered and met.
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Another commenter thought that EPA should look to state requirements for containment,
handling, and storage. Similarly, another commenter suggested that EPA should recognize that
if a non-hazardous secondary material is managed pursuant to federal requirements that also
apply to raw materials (e.g., coal refuse compared to coal), the criteria are satisfied. Lastly, one
commenter argued that the concept of "speculative accumulation" of one year can prevent
accumulation of enough non-hazardous secondary materials to make recovery economical and
thus, is not an appropriate criterion to conclude that a non-hazardous secondary material isn't
being reused and is a solid waste.
EPA's Response:
We generally agree with those commenters who argued that a specific containment
system should not be required and, therefore, are proposing a qualitative approach in line with
the same principle as the commenter who suggested that non-hazardous secondary materials
should be stored in a manner that preserves their economic value, while preventing damaging
releases to the environment. We also are proposing to incorporate the concept that non-
hazardous secondary materials be "contained" in the same manner as its analogous fuel or raw
ingredient. Thus, we are proposing that where there is an analogous fuel or ingredient, the non-
hazardous secondary material used would be required to be managed in a manner consistent with
the management of the analogous fuel or ingredient or otherwise must be adequately contained
so as to prevent releases to the environment. As explained in section VII.D.6, an "analogous
ingredient or fuel " is an ingredient or fuel for which the non-hazardous secondary material
substitutes and which serves the same function and has similar physical and chemical properties
as the non-hazardous secondary material. Where there is no analogous fuel or ingredient, the
non-hazardous secondary material must be adequately contained so as to prevent damaging
releases to the environment. "Adequately contained" is when a non-hazardous secondary
material is stored in a manner that adequately prevents releases to the environment considering
the nature and toxicity of the non-hazardous secondary material. In regard to the comment on
speculative accumulation, we are not proposing a specific timeframe, because states already
require varied timeframes and we will leave this up to the state's discretion.
c. Fuels Must Have Meaningful Heating Value. The ANPRM discussed the meaningful
heating value criterion for legitimate alternative fuel, and outlined a qualitative approach rather
than a "bright-line" cutoff for heating value. The ANPRM requested comment as to whether it
was possible or appropriate to establish a specific heating value cutoff.
Comments:
Several commenters favored the ANPRM approach, while others recommended either a
lower Btu benchmark or replacing the Btu benchmark with a case-by-case analysis. No
commenters recommended deleting the criterion. Commenters emphasized that innovations and
advancements in technology can efficiently produce energy from non-hazardous secondary
materials with lower heating value content.
EPA's Response:
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We are proposing a qualitative approach for a meaningful heating value criterion as
outlined in the ANPRM. The proposed regulatory text specifies that "the material must have a
meaningful heating value and be used as a fuel in a combustion unit that recovers energy". See
proposed 241.3(d)(l)(ii). We are clarifying in this proposal, that non-hazardous secondary
materials with a heating value of greater than 5,000 Btu/lb, as fired, would be considered to
satisfy the criterion. However, non-hazardous secondary materials with a heating value lower
than 5,000 Btu/lb, as fired, may also be considered to have a meaningful heating value if the unit
can cost-effectively recover meaningful energy. See section VII.D.6.a.for an explanation of the
factors that may be considered in determining whether an energy recovery unit can cost-
effectively recover energy from a non-hazardous secondary material. Also, as outlined in the
same section, this criterion is an appropriate factor, since it expresses the principle that non-
hazardous secondary materials used as a fuel with a meaningful heating value provides a useful
contribution to the manufacturing process. The Agency believes a 5,000 Btu/lb benchmark, as
fired, identifying when a non-hazardous secondary material, by definition, provides fuel value is
appropriate since it is consistent with determinations expressed in previous RCRA and CAA
rulemakings, including the RCRA comparable fuels rule (63 FR 33781), the RCRA subtitle C
boilers and industrial furnaces rule (48 FR 11157-59), and the CAA NESHAP for Hazardous
Waste Combustors NODA (62 FR 24251).
We request comment on whether it would be appropriate to also identify a lower Btu/lb
threshold, below which non-hazardous secondary materials would not be considered to have
meaningful heating value and thus, would be a solid waste by definition.
d. Fuel/Ingredient Contaminant Levels. To address the possible presence of waste-like
contaminants in non-hazardous secondary materials, the ANPRM stated that such secondary
materials used as fuels should not contain contaminants that are significantly higher than those
contained in traditional fuels. For ingredients, the ANPRM stated that products that use non-
hazardous secondary materials as ingredients in combustion units should not contain
contaminants that are significantly higher in concentration than the product produced without the
non-hazardous secondary material. For both ingredients and fuels, the ANPRM suggested that a
qualitative approach may be more appropriate to use than numerical specifications. In addition,
we requested comment on whether the contaminants evaluated should be the hazardous
constituents listed in Appendix VIII to 40 CFR part 261, or whether a different list of
contaminants would be more appropriate.
Comments:
Commenters were evenly divided on whether the presence of contaminants was an
appropriate legitimacy criterion. For commenters favoring the criterion, most believed that a
qualitative approach was preferable; stating that little risk exists for environmental exposure and
numerical specifications may be impractical due to the multiplicity of fuels or ingredients.
However, a minority of commenters favored a quantitative approach. For commenters
recommending that the presence of contaminants not be included as a criterion, most emphasized
that emissions will be controlled under either CAA sectionsl 12 or 129. They stated that
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as Responded to in the Proposed Rule (now superseded by the final rule responses)
Response to Comments Document -NHSM Rule
comparative contaminant concentrations are inappropriate, and that the Agency should recognize
the lower risks posed by non-hazardous secondary materials. One commenter stated that the
amount of contamination acceptable in an alternative fuel depends on how much is fired with the
main boiler fuel, the type of contaminant (organic vs. inorganic), and the emission controls used.
Specifically with respect to the use of ingredients in combustion units, one commenter
agreed that the assessment should involve the final recycled product and not the ingredient itself.
However, another commenter countered that the assessment should be a comparison of post
combustion emission levels, not the product made with non-hazardous secondary materials to
those in a product made with virgin materials. This commenter reasoned that combustion will
destroy many of the substances that EPA considers possible contaminants and basically
eliminates any environmental concern. Another commenter recommended an analysis of
appropriate total constituent concentrations, leachable constituent concentrations, and a
comparison to traditional ingredients (as outlined in the Solid Waste RCRA subtitle D
groundwater protection constituent list).
EPA's Response:
Based on our assessment of all of the comments, we believe it appropriate to include
contaminant levels as a legitimacy criterion. Thus, we do not agree with those commenters' that
assert that contaminant comparisons are not appropriate to require as part of the legitimacy
criteria. The Agency believes the criterion is necessary because non-hazardous secondary
materials that contain contaminants that are not comparable in concentration to those contained
in traditional fuel products or ingredients would suggest that these contaminants are being
combusted as a means of discarding them, and thus the non-hazardous secondary material should
be classified as a solid waste. In some cases, this can also be an indicator of sham recycling. For
example, non-hazardous secondary materials that may not contain comparable concentrations of
contaminants include chromium-, copper-, and arsenic (CCA)-treated lumber, polyvinyl chloride
(PVC) plastics which can contain up to 60 percent halogens (chlorine), lead-based painted wood,
and fluorinated plastics. Also, we disagree with the commenter who argued that any assessment
should only include a comparison of post-combustion emission levels because the combustion
unit will destroy many of the substances that EPA considers possible contaminants (and thereby
eliminate any environmental concern). The Agency believes that this post-combustion
assessment of contaminants further supports the principle that contaminant levels (before and
after combustion) are important indicators of legitimacy.
The legitimacy criterion for fuel/ingredient contaminants outlined in today's rule has
changed from the criterion outlined in the ANPRM. In the ANPRM, non-hazardous secondary
materials used as fuel could not contain contaminants that were significantly higher than
traditional fuel products. For ingredients, the non-hazardous secondary material could not result
in products that contain contaminants that are significantly higher in concentration than found in
traditional products.
Under today's proposed rule, non-hazardous secondary material used as fuels in
combustion units must contain contaminants (defined as HAP listed under CAA section 112(b)
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as Responded to in the Proposed Rule (now superseded by the final rule responses)
Response to Comments Document -NHSM Rule
and the nine pollutants listed under CAA section 129) at levels "comparable" to those in
traditional fuels which the combustion unit is designed to burn. For use as an ingredient, the
non-hazardous secondary material must result in products that contain contaminants at levels that
are "comparable" in concentration to those found in traditional products that are manufactured
without the non-hazardous secondary material ingredients.
As discussed in section VII. C.7 of the proposed rule, requiring that the secondary
material have contaminants at levels comparable to traditional fuels would ensure that the
burning of any secondary materials in combustion units will not result in discard of materials and
will not result in increased releases to the environment that could impact the health and
environment of the local community. Ensuring that the level of contaminants in the non-
hazardous secondary material is comparable to traditional fuels would prevent secondary
materials from being discarded and be the most protective of human health and the environment.
Today's proposed rule also requests comment on an approach, consistent with the ANPRM
approach, which would only compare contaminants at levels that are significantly higher than
traditional fuel products.
Similar to the ANPRM, the assessment of whether the non-hazardous secondary material
used as a fuel has contaminants comparable to traditional fuel products is to be made by directly
comparing the numerical contaminant levels in the non-hazardous secondary material to the
contaminant levels in traditional fuels. See section VII.C.7.,for a complete discussion of
contaminant assessments.
The assessment of whether products produced from the use of non-hazardous secondary
material ingredients in combustion units that have contaminants that are comparable in
concentration to traditional products can be made by a comparison of contaminant levels in the
ingredients themselves to traditional ingredients they are replacing, or by comparing the
contaminant levels in the product itself with and without use of the non-hazardous secondary
material ingredient. See section VII.D.6.b.
e. Ingredients Must Provide Useful Contribution. The ANPRM cited (from the October
2008 DSW Final Rule for hazardous waste) five ways172 in which a secondary material can add
value and usefully contribute to a recycling process and solicited comment on whether they are
appropriate for non-hazardous secondary materials.
Comment:
Only one commenter responded and indicated that the five criteria are too narrow and
should be broadened to apply to the non-hazardous secondary material uses (i.e., processes not
considered recycling) since using the criteria for hazardous waste as a model is too limiting.
172 The five ways include: (i) the secondary material contributes valuable ingredients to a product or intermediate;
or (ii) replaces a catalyst or carrier in the recycling process; or (iii) is the source of a valuable constituent recovered
in the recycling process; or (iv) is recovered or regenerated by the recycling process; or (v) is used as an effective
substitute for a commercial product.
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as Responded to in the Proposed Rule (now superseded by the final rule responses)
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EPA's Response:
After review of the comment, we understand that there is some interest in broadening
those criteria for non-hazardous secondary material use, but the commenter did not provide any
information to merit the development of a separate or additional criteria for non-hazardous
secondary material use to describe how they can "add value and usefully contribute to a
recycling process" (or broaden to non-recycling uses as suggested by the commenter). However,
the Agency solicits comments on this point; in particular, what the separate criteria would be and
how a non-hazardous secondary material would or can "add value and usefully contribute to a
recycling process."
f Ingredients Must Produce a Valuable Product. For this criterion to be met, the
ANPRM indicated that a product or intermediate is valuable if it is (i) sold to a third party or (ii)
used by the recycler or generator as an effective substitute for a commercial product or as an
ingredient or intermediate in an industrial process. We then requested comment on whether this
description of valuable product/intermediate is an appropriate way to consider this criterion in
the context of non-hazardous secondary materials used as ingredients.
Comments:
One commenter responded that they support this criterion, but caution that it be broad
enough so that it addresses the value obtained by both its use on-site and off-site by a third party.
The commenter also suggested that the provision be interpreted broadly to also include
traditional recycling markets and the products generally in which such secondary materials are
utilized.
EPA's Response:
We believe that the criteria described in the ANPRM are broad enough to address the
value obtained by both its use on-site and off-site by a third party. With regard to interpreting
the criterion broadly enough to include traditional recycling markets and the products in which
the secondary materials are utilized, we do not agree that it would be appropriate. Specifically,
this rule is addressing a particular issue within the context of RCRA—that is, which non-
hazardous secondary materials are or are not solid wastes when used in a combustion unit. We
have tailored the legitimacy criteria to apply specifically to the use of these non-hazardous
secondary materials as fuels or ingredients in combustion units only. An assessment of uses
beyond those in combustion units is beyond the scope of this rulemaking.
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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
PART 4: Comment Crosswalk
The tables below provide a crosswalk between each comment and response in this
document and individual commenter IDs. The first table provides a reference for comments
submitted in response to the Proposed Rule. The second table provides a reference for comments
submitted in response to the ANPRM. Commenters are usually associated with more than one
topic and are therefore linked to multiple comment codes. Some of the comments associated are
associated for the EPA response and are not identical to the comment stated. Each comment and
response is assigned a comment code (i.e., 3a-A-l) and matched with individual related
comments.
Example:
Commenter ID "0539" is an abbreviated version of the full commenter ID of "EPA-HQ-
RCRA-2008-0329-0539." That comment and 40 others are associated with the first comment
and response discussed in PART 3a of this document (comment code "3a-Al-l").
Refer to the commenter list in PART 2 for the commenters associated with the ID
173 174 175
numbers. ' ' Duplicates and Copyrighted comments may not be included. We refer the
commenters to the entire rule, not just the areas we selected in the crosswalk; while the main
commenter points are linked to the EPA responses, the rest of the rule should also be referenced.
Crosswalk for Comments on Proposed Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2008-0329-")
Proposed Approach -
Definition of Discard
3a-Al-l
0539, 0783, 0784, 0868, 0871, 0872, 0911, 0960, 0963, 1034, 1038,
1138, 1139, 1140, 1141, 1142, 1143, 1158, 1160, 1161, 1163, 1165,
1169, 1170, 1251, 1260, 1268, 1273, 1276, 1289, 1291, 1318, 1378,
1401, 1402, 1449, 1456, 1571, 1572, 1607, 1686
3a-Al-2
0580, 0626, 0632, 0633, 0634, 0635, 0636, 0638, 0640, 0641, 0642,
0644, 0645, 0647, 0648, 0649, 0650, 0651, 0652, 0653, 0654, 0655,
0656, 0657, 0658, 0659, 0660, 0661, 0662, 0663, 0664, 0665, 0666,
0667, 0668, 0669, 0670, 0671, 0672, 0677, 0678, 0679, 0680, 0681,
0682, 0683, 0685, 0686, 0687, 0688, 0689, 0690, 0691, 0692, 0694,
0695, 0696, 0697, 0698, 0699, 0700, 0701, 0702, 0703, 0704, 0705,
0707, 0708, 0709, 0710, 0711, 0718, 0719, 0720, 0721, 0722, 0723,
0724, 0730, 0731, 0732, 0733, 0734, 0735, 0736, 0742, 0743, 0744,
0745, 0746, 0748, 0749, 0750, 0751, 0752, 0755, 0757, 0758, 0760,
0761, 0762, 0763, 0764, 0765, 0768, 0790, 0791, 0792, 0793, 0794,
0795, 0796, 0797, 0798, 0801, 0802, 0803, 0804, 0805, 0806, 0807,
0808, 0809, 0810, 0811, 0813, 0814, 0815, 0816, 0817, 0819, 0820,
173	Comments 1137, 1209, and 1429 do not appear in the comment crosswalk. The contents of these comments are
represented by comments 1272, 1446, and 1167, respectively.
174	Comment 1418 does not appear in the comment crosswalk because the commenter submitted only a coversheet
without content.
175	Comment 1431 does not appear in the comment crosswalk because it was withheld due to copyrighted content.
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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2008-0329-")


0821, 0822, 0823, 0824, 0825, 0826, 0827, 0828, 0829, 0830, 0831,
0832, 0833, 0834, 0835, 0836, 0837, 0838, 0839, 0845, 0846, 0847,
0848, 0849, 0850, 0851, 0852, 0853, 0854, 0855, 0856, 0857, 0858,
0859, 0860, 0867, 0876, 0877, 0878, 0879, 0880, 0881, 0882, 0883,
0884, 0885, 0886, 0887, 0888, 0889, 0890, 0891, 0892, 0893, 0894,
0895, 0896, 0897, 0898, 0899, 0900, 0901, 0902, 0903, 0904, 0905,
0906, 0907, 0908, 0913, 0914, 0915, 0916, 0917, 0918, 0919, 0920,
0921, 0922, 0923, 0924, 0925, 0926, 0927, 0928, 0929, 0930, 0931,
0932, 0933, 0934, 0935, 0936, 0937, 0938, 0939, 0940, 0941, 0942,
0943, 0944, 0945, 0946, 0947, 0948, 0949, 0964, 0965, 0966, 0967,
0968, 0969, 0970, 0971, 0972, 0973, 0974, 0975, 0976, 0977, 0978,
0979, 0980, 0981, 0982, 0984, 0985, 0986, 0987, 0988, 0989, 0993,
0994, 0995, 0996, 0997, 0998, 1000, 1001, 1002, 1003, 1004, 1005,
1006, 1007, 1008, 1009, 1010, 1011, 1016, 1017, 1018, 1019, 1020,
1021, 1022, 1024, 1025, 1026, 1027, 1028, 1029, 1030, 1048, 1049,
1050, 1051, 1052, 1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060,
1061, 1062, 1063, 1064, 1065, 1067, 1068, 1069, 1070, 1071, 1072,
1073, 1074, 1075, 1076, 1077, 1079, 1080, 1082, 1083, 1084, 1085,
1086, 1087, 1089, 1090, 1091, 1092, 1093, 1094, 1095, 1096, 1097,
1098, 1099, 1100, 1101, 1102, 1103, 1104, 1105, 1106, 1107, 1108,
1110, 1111, 1112, 1113, 1115, 1116, 1117, 1118, 1119, 1120, 1121,
1122, 1123, 1125, 1126, 1127, 1128, 1129, 1130, 1131, 1133, 1134,
1135, 1136, 1145, 1146, 1147, 1149, 1150, 1151, 1152, 1153, 1260,
1308, 1329, 1332, 1337, 1425, 1471, 1472, 1473, 1474, 1475, 1476,
1477, 1478, 1479, 1480, 1481, 1482, 1483, 1484, 1485, 1486, 1487,
1488, 1489, 1490, 1492, 1493, 1494, 1495, 1496, 1497, 1498, 1499,
1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, 1508, 1509, 1510,
1511, 1512, 1513, 1514, 1515, 1516, 1517, 1518, 1519, 1520, 1521,
1522, 1523, 1524, 1525, 1526, 1527, 1528, 1529, 1530, 1531, 1532,
1533, 1535, 1536, 1537, 1538, 1539, 1540, 1541, 1542, 1543, 1544,
1546, 1547, 1548, 1549, 1550, 1551, 1552, 1553, 1554, 1555, 1556,
1557, 1558, 1559, 1560, 1561, 1562, 1575, 1643, 1667
3a-Al-3
0598, 0778, 0783, 0784, 0842, 0871, 0872, 0954, 0960, 0963, 1038,
1040, 1138, 1139, 1140, 1141, 1142, 1143, 1159, 1165, 1170, 1187,
1188, 1192, 1231, 1246, 1259, 1265, 1291, 1307, 1312, 1318, 1360,
1390, 1398, 1400, 1401, 1402, 1415, 1456
3a-Al-4
0960, 1159, 1161, 1260, 1276, 1289, 1401, 1449, 1575, 1643
3a-Al-5
0788, 1156, 1260
3a-Al-6
0783, 0911, 1138, 1139, 1140, 1141, 1142, 1143, 1260, 1291, 1318
3a-Al-7
0728, 0737, 0739, 0776, 0778, 0780, 0783, 0784, 0865, 0957, 0961,
0962, 1034, 1040, 1042, 1043, 1046, 1138, 1139, 1140, 1141, 1142,
1143, 1157, 1158, 1165, 1166, 1168, 1170, 10, 1171, 1173, 1180,
1186, 1192, 1241, 1246, 1249, 1251, 1265, 1272, 1274, 1277, 1282,
1291, 1312, 1315, 1318, 1354, 1360, 1398, 1402, 1407, 1416
3a-Al-8
0607, 0629, 0728, 0737, 0739, 0740, 0774, 0783, 0784, 0842, 0862,
0868, 0960, 0963, 1036, 1037, 1040, 1042, 1138, 1139, 1140, 1141,
1142, 1143, 1157, 1163, 1165, 1166, 1169, 1170, 1235, 1246, 1251,
1268, 1272, 1277, 1282, 1289, 1291, 1312, 1315, 1316, 1318, 1354,
1360, 1398, 1401, 1402, 1407, 1432, 1437, 1445, 1449, 1456, 1456,
1458, 1469, 1577, 1602, 1603, 1603, 1685, 1686
3a-Al-9
0783, 0865, 1041, 1138, 1139, 1140, 1141, 1142, 1143, 1156, 1166,
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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2(K^8-0329-,,)
1291
3a-Al-10
0740, 0783, 1138, 1139, 1140, 1141, 1142, 1143, 1166, 1170, 1291
3a-Al-ll
0598, 1180, 1188
3a-Al-12
0579,
0872,
1041,
1158,
1289,
1579,
1663,
0607,
0875,
1043,
1159,
1305,
1586,
1717
0611, 0781, 0784, 0788, 0800, 0863, 0865, 0865, 0871,
0909, 0910, 0953, 0957, 0959, 0961, 1012, 1034, 1040,
1046, 1138, 1139, 1140, 1141, 1142, 1143, 1156, 1156,
1170, 1173, 1179, 1196, 1235, 1237, 1257, 1258, 1268,
1312, 1358, 1395, 1402, 1437, 1447, 1563, 1572, 1576,
1587, 1588, 1596, 1599, 1604, 1611, 1639, 1640, 1651,
3a-Al-13
0842, 1166, 1170, 1289, 1445
Proposed Approach -
Processing Requirements
3a-A2-l
0580,
0642,
0655,
0666,
0681,
0694,
0705,
0723,
0744,
0760,
0794,
0807,
0820,
0831,
0847,
0858,
0883,
0894,
0905,
0920,
0931,
0942,
0967,
0978,
0993,
1005,
1020,
1048,
1059,
1071,
1084,
1096,
1107,
1120,
1133,
1153,
1472,
1483,
1495,
1506,
0607,
0644,
0656,
0667,
0682,
0695,
0707,
0724,
0745,
0761,
0795,
0808,
0821,
0832,
0848,
0859,
0884,
0895,
0906,
0921,
0932,
0943,
0968,
0979,
0994,
1006,
1021,
1049,
1060,
1072,
1085,
1097,
1108,
1121,
1134,
1167,
1473,
1484,
1496,
1507,
0626,
0645,
0657,
0668,
0683,
0696,
0708,
0730,
0746,
0762,
0796,
0809,
0822,
0833,
0849,
0860,
0885,
0896,
0907,
0922,
0933,
0944,
0969,
0980,
0995,
1007,
1022,
1050,
1061,
1073,
1086,
1098,
1110,
1122,
1135,
1235,
1474,
1485,
1497,
1508,
0632,
0647,
0658,
0669,
0685,
0697,
0709,
0731,
0748,
0763,
0797,
0810,
0823,
0834,
0850,
0867,
0886,
0897,
0908,
0923,
0934,
0945,
0970,
0981,
0996,
1008,
1024,
1051,
1062,
1074,
1087,
1099,
1111,
1123,
1136,
1260,
1475,
1486,
1498,
1509,
0633,
0648,
0659,
0670,
0686,
0698,
0710,
0732,
0749,
0764,
0798,
0811,
0824,
0835,
0851,
0876,
0887,
0898,
0913,
0924,
0935,
0946,
0971,
0982,
0997,
1009,
1025,
1052,
1063,
1075,
1089,
1100,
1112,
1125,
1145,
1273,
1476,
1487,
1499,
1510,
0634,
0649,
0660,
0671,
0687,
0699,
0711,
0733,
0750,
0765,
0801,
0813,
0825,
0836,
0852,
0877,
0888,
0899,
0914,
0925,
0936,
0947,
0972,
0984,
0998,
1010,
1026,
1053,
1064,
1076,
1090,
1101,
1113,
1126,
1146,
1308,
1477,
1488,
1500,
1511,
0635,
0650,
0661,
0672,
0688,
0700,
0718,
0734,
0751,
0768,
0802,
0814,
0826,
0837,
0853,
0878,
0889,
0900,
0915,
0926,
0937,
0948,
0973,
0985,
1000,
1011,
1027,
1054,
1065,
1077,
1091,
1102,
1115,
1127,
1147,
1329,
1478,
1489,
1501,
1512,
0636,
0651,
0662,
0677,
0689,
0701,
0719,
0735,
0752,
0790,
0803,
0815,
0827,
0838,
0854,
0879,
0890,
0901,
0916,
0927,
0938,
0949,
0974,
0986,
1001,
1016,
1028,
1055,
1067,
1079,
1092,
1103,
1116,
1128,
1149,
1332,
1479,
1490,
1502,
1513,
0638,
0652,
0663,
0678,
0690,
0702,
0720,
0736,
0755,
0791,
0804,
0816,
0828,
0839,
0855,
0880,
0891,
0902,
0917,
0928,
0939,
0964,
0975,
0987,
1002,
1017,
1029,
1056,
1068,
1080,
1093,
1104,
1117,
1129,
1150,
1337,
1480,
1492,
1503,
1514,
0640,
0653,
0664,
0679,
0691,
0703,
0721,
0742,
0757,
0792,
0805,
0817,
0829,
0845,
0856,
0881,
0892,
0903,
0918,
0929,
0940,
0965,
0976,
0988,
1003,
1018,
1030,
1057,
1069,
1082,
1094,
1105,
1118,
1130,
1151,
1425,
1481,
1493,
1504,
1515,
0641,
0654,
0665,
0680,
0692,
0704,
0722,
0743,
0758,
0793,
0806,
0819,
0830,
0846,
0857,
0882,
0893,
0904,
0919,
0930,
0941,
0966,
0977,
0989,
1004,
1019,
1036,
1058,
1070,
1083,
1095,
1106,
1119,
1131,
1152,
1471,
1482,
1494,
1505,
1516,
256 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule

Comment

Comment Topic
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2008-0329-")


1517, 1518, 1519, 1520, 1521, 1522, 1523, 1524, 1525, 1526, 1527,


1528, 1529, 1530, 1531, 1532, 1533, 1535, 1536, 1537, 1538, 1539,


1540, 1541, 1542, 1543, 1544, 1546, 1547, 1548, 1549, 1550, 1551,


1552, 1553, 1554, 1555, 1556, 1557, 1558, 1559, 1560, 1561, 1562,


1571, 1607, 1667

3a-A2-2
0598, 0607, 0676, 0712, 0717, 0728, 0739, 0740, 0778, 0780, 0783,
0784, 0788, 0800, 0864, 0865, 0871, 0872, 0912, 0962, 1034, 1035,
1036, 1040, 1041, 1042, 1043, 1138, 1139, 1140, 1141, 1142, 1143,
1157, 1161, 1165, 1166, 1168, 1170, 1171, 1180, 1186, 1188, 1200,
1249, 1251, 1268, 1273, 1277, 1282, 1289, 1291, 1312, 1360, 1378,
1381, 1395, 1401, 1402, 1417, 1432, 1437, 1449, 1571, 1572, 1577,
1602, 1603, 1607, 1614, 1664, 1677, 1685
Comments on Specific
3a-Bl-l
0728, 0737, 0844, 1138, 1158, 1160, 1168, 1232, 1255, 1269, 1307,
Materials Used as Fuel -

1326, 1360, 1362, 1415, 1458, 1568
Traditional Fuels
3a-Bl-2
0676, 0728, 0774, 0800, 0841, 0865, 0871, 0872, 0873, 0909, 0962,
1138, 1139, 1140, 1141, 1142, 1143, 1156, 1159, 1168, 1186, 1232,
1248, 1249, 1255, 1258, 1326, 1360, 1395, 1398, 1399, 1401, 1445,
1568, 1610

3a-Bl-3
1312

3a-Bl-4
0616, 0629, 0783, 0784, 0844, 0865, 0871, 0872, 1012, 1046, 1158,
1159, 1159, 1160, 1168, 1171, 1248, 1274, 1289, 1291, 1351, 1378,
1401, 1402, 1417, 1469, 1610

3a-Bl-5
0784, 0871, 0872, 1040, 1040, 1159, 1161, 1187, 1378, 1402
Comments on Specific
3a-B2-l
1040, 1174, 1178, 1188, 1219, 1258, 1314
Materials Used as Fuel -
Manure
3a-B2-2
1258
3a-B2-3
0676, 0843, 1258

3a-B2-4
1258

3a-B2-5
0598, 0676, 0843, 1258

3a-B2-6
0843, 1258
Comments on Specific
3a-B3-l
0767, 0772, 0871, 0872, 0875, 1036, 1040, 1040, 1158, 1168, 1265,
Materials Used as Fuel -

1268, 1289, 1303, 1305, 1312, 1360, 1390, 1395, 1407, 1450, 1455,
Other Biomass

1458, 1570, 1679, 1715

3a-B3-2
0871, 0872, 0875, 1040, 1040, 1158, 1168, 1177, 1201, 1305, 1312,
1394, 1450, 1455, 1569, 1570, 1715

3a-B3-3
0602, 0605, 0608, 0715, 0781, 0784, 0788, 0862, 0863, 0871, 0872,
1036, 1040, 1158, 1168, 1187, 1248, 1248, 1268, 1303, 1305, 1312,
1390, 1402, 1407, 1458, 1463, 1679

3a-B3-4
0605, 0608, 1303, 1463, 1679

3a-B3-5
0774, 0784, 0866, 0871, 0872, 1036, 1040, 1158, 1268, 1360, 1402,
1726
Comments on Specific
3a-B4-l
1200, 1307, 1415, 1455, 1458, 1566, 1665, 1674, 1682
Materials Used as Fuel - Pulp
and Paper Sludge
3a-B4-2
1307, 1415, 1455, 1566, 1665, 1674, 1682
3a-B4-3
1307, 1395, 1415, 1566, 1665, 1674, 1682

3a-B4-4
0579, 0611, 1231, 1307, 1415, 1458, 1566, 1665, 1674, 1682

3a-B4-5
1231, 1395

3a-B4-6
1263
257 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2008-0329-")
Comments on Specific
Materials Used as Fuel -
Scrap Tires
3a-B5-l
0540, 0607, 0607, 0717, 0865, 0871, 0872, 0912, 0957, 1040, 1042,
1138, 1139, 1140, 1141, 1142, 1143, 1155, 1158, 1160, 1166, 1170,
1173, 1179, 1186, 1197, 1235, 1238, 1238, 1241, 1268, 1306, 1354,
1390, 1395, 1416, 1449, 1452, 1455, 1491, 1576, 1611, 1614, 1681
3a-B5-2
0598, 0604, 0607, 0712, 0756, 0774, 0784, 0788, 0865, 0912, 0957,
0959, 1040, 1138, 1139, 1140, 1141, 1142, 1143, 1158, 1160, 1166,
1170, 1173, 1179, 1186, 1196, 1197, 1235, 1238, 1241, 1263, 1306,
1346, 1354, 1390, 1395, 1402, 1416, 1449, 1452, 1455, 1576, 1583,
1611, 1614
3a-B5-3
0540, 0541, 0542, 0543, 0544, 0545, 0547, 0548, 0549, 0550, 0551,
0552, 0553, 0555, 0556, 0557, 0558, 0559, 0560, 0561, 0562, 0563,
0564, 0565, 0566, 0567, 0568, 0569, 0570, 0571, 0572, 0573, 0574,
0576, 0578, 0581, 0582, 0583, 0585, 0586, 0587, 0588, 0589, 0590,
0591, 0592, 0593, 0597, 0615, 0625, 0788, 0865, 0871, 0872, 0912,
0957, 1040, 1138, 1139, 1140, 1141, 1142, 1143, 1158, 1160, 1164,
1166, 1170, 1173, 1188, 1190, 1197, 1238, 1238, 1241, 1306, 1341,
1354, 1387, 1449, 1452, 1455, 1566, 1576, 1581, 1611, 1614, 1665,
1674, 1682
3a-B5-4
0598, 0607, 0607, 0712, 0717, 0865, 0869, 1138, 1139, 1140, 1141,
1142, 1143, 1166, 1188, 1197, 1235, 1395, 1449, 1565
3a-B5-5
0605, 1304, 1309
3a-B5-6
0607, 0865, 0959, 1040, 1138, 1139, 1140, 1141, 1142, 1143, 1158,
1166, 1170, 1197, 1263, 1306, 1449, 1455
3a-B5-7
0954, 1223, 1260, 1309, 1393
3a-B5-8
0607, 0712, 0865, 1034, 1138, 1139, 1140, 1141, 1142, 1143, 1166,
1235, 1238, 1572
3a-B5-9
0540, 0607, 0607, 0865, 0871, 0872, 1034, 1041, 1138, 1139, 1140,
1141, 1142, 1143, 1155, 1166, 1170, 1188, 1235, 1238, 1306, 1354,
1449, 1491, 1566, 1572, 1583, 1665, 1674, 1681, 1682
3a-B5-10
0598, 0604, 0607, 0756, 0800, 0865, 0912, 1040, 1042, 1138, 1139,
1140, 1141, 1142, 1143, 1155, 1166, 1170, 1179, 1238, 1256, 1263,
1306, 1346, 1354, 1401, 1437, 1449, 1458, 1491, 1566, 1576, 1583,
1611, 1614, 1665, 1674, 1681, 1682, 1712
Comments on Specific
Materials Used as Fuel -
Resinated Wood Residuals
3a-B6-l
0607, 0783, 1040, 1138, 1139, 1140, 1141, 1142, 1143, 1159, 1166,
1178, 1235, 1273, 1280, 1291, 1545
3a-B6-2
0616, 0693, 0716, 0774, 0782, 0871, 0872, 0953, 1013, 1036, 1039,
1040, 1040, 1046, 1159, 1159, 1188, 1237, 1265, 1267, 1280, 1358,
1360, 1395, 1579, 1586, 1587, 1588, 1596, 1599, 1639, 1640, 1651,
1663
3a-B6-3
0616, 0716, 0871, 0872, 1013, 1037, 1039, 1040, 1159, 1191, 1237,
1265, 1267, 1280, 1289, 1358, 1382, 1395, 1458, 1579, 1586, 1587,
1588, 1596, 1599, 1639, 1640, 1651, 1663
3a-B6-4
0616, 0871, 0872, 0953, 1013, 1037, 1039, 1040, 1159, 1159, 1191,
1237, 1265, 1267, 1358, 1382, 1579, 1586, 1587, 1588, 1596, 1599,
1639, 1640, 1651, 1663
3a-B6-5
0616, 0693, 0871, 0872, 0953, 1036, 1039, 1040, 1040, 1159, 1159,
1237, 1265, 1267, 1289, 1358, 1579, 1586, 1587, 1588, 1596, 1599,
1639, 1640, 1651, 1663
3a-B6-6
0716, 0953, 1039, 1267, 1289, 1358
3a-B6-7
0784, 0871, 0872, 0953, 1013, 1039, 1040, 1237, 1265, 1267, 1358,
1402, 1579, 1586, 1587, 1588, 1596, 1599, 1639, 1640, 1651, 1663
258 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2008-0329-")
Comments on Specific
Materials Used as Fuel -
Used Oil
3a-B7-l
0609, 0610, 0613, 0614, 0618, 0620, 0622, 0623, 0627, 0628, 0630,
0714, 0714, 0741, 0766, 0774, 0776, 0783, 0785, 0788, 0799, 0800,
0868, 0871, 0872, 0910, 0951, 0957, 0992, 1032, 1154, 1155, 1160,
1163, 1165, 1168, 1171, 1173, 1175, 1176, 1179, 1181, 1181, 1183,
1184, 1189, 1193, 1195, 1196, 1197, 1198, 1204, 1206, 1207, 1208,
1211, 1221, 1222, 1224, 1226, 1227, 1233, 1234, 1234, 1236, 1239,
1240, 1241, 1242, 1242, 1243, 1244, 1245, 1247, 1250, 1251, 1252,
1259, 1264, 1270, 1273, 1279, 1281, 1284, 1286, 1291, 1292, 1293,
1294, 1295, 1296, 1298, 1299, 1307, 1311, 1313, 1318, 1319, 1320,
1321, 1322, 1323, 1324, 1325, 1330, 1333, 1336, 1340, 1343, 1344,
1345, 1347, 1348, 1350, 1352, 1355, 1357, 1361, 1364, 1365, 1367,
1368, 1369, 1370, 1372, 1375, 1376, 1377, 1379, 1383, 1384, 1385,
1386, 1390, 1391, 1392, 1396, 1397, 1403, 1404, 1405, 1408, 1412,
1413, 1414, 1415, 1416, 1420, 1421, 1426, 1428, 1430, 1433, 1434,
1435, 1436, 1437, 1438, 1438, 1440, 1441, 1445, 1448, 1450, 1451,
1457, 1461, 1464, 1465, 1466, 1470, 1564, 1571, 1573, 1574, 1580,
1584, 1585, 1589, 1590, 1591, 1592, 1593, 1594, 1598, 1600, 1601,
1605, 1607, 1609, 1615, 1616, 1617, 1618, 1619, 1620, 1621, 1622,
1623, 1624, 1625, 1626, 1627, 1628, 1629, 1630, 1631, 1631, 1633,
1634, 1635, 1636, 1637, 1638, 1642, 1644, 1645, 1646, 1647, 1648,
1649, 1650, 1652, 1653, 1654, 1655, 1656, 1660, 1661, 1666, 1668,
1670, 1671, 1673, 1675, 1678, 1678, 1683, 1686, 1686, 1717
3a-B7-2
0629, 0714, 0799, 0868, 0871, 1436, 1437, 1445, 1686, 1718, 1719,
1720, 1721, 1723
3a-B7-3
0714, 0871, 0872, 1160, 1247, 1273, 1375, 1411, 1436, 1437, 1571,
1607, 1717
3a-B7-4
0706, 0783, 0785, 0868, 0910, 0951, 1179, 1183, 1184, 1189, 1193,
1195, 1197, 1198, 1204, 1207, 1273, 1279, 1286, 1291, 1293, 1321,
1322, 1330, 1345, 1350, 1352, 1364, 1376, 1377, 1383, 1384, 1391,
1405, 1411, 1412, 1433, 1434, 1436, 1441, 1571, 1573, 1594, 1605,
1607, 1647, 1649, 1666, 1668, 1671, 1683, 1686, 1717
3a-B7-5
0630, 0741, 0868, 1197, 1247, 1273, 1292, 1468, 1571, 1607, 1686
3a-B7-6
0609, 0610, 0613, 0614, 0618, 0622, 0623, 0628, 1032, 1181, 1181,
1233, 1234, 1234, 1236, 1239, 1250, 1252, 1257, 1273, 1348, 1365,
1414, 1430, 1435, 1440, 1464, 1465, 1466, 1571, 1574, 1584, 1585,
1590, 1598, 1607, 1621, 1622, 1623, 1624, 1626, 1627, 1628, 1629,
1630, 1644, 1648, 1650, 1673, 1675
3a-B7-7
0963, 1456
3a-B7-8
0620, 1210, 1273, 1426, 1571, 1607, 1670, 1717
3a-B7-9
0741,0868, 1210, 1257, 1264, 1686
3a-B7-10
0620, 0627, 0766, 0785, 0868, 0951, 1032, 1154, 1165, 1183, 1184,
1189, 1190, 1193, 1195, 1198, 1204, 1206, 1207, 1208, 1210, 1222,
1224, 1226, 1240, 1241, 1242, 1243, 1244, 1245, 1257, 1279, 1281,
1286, 1293, 1295, 1298, 1299, 1319, 1320, 1321, 1322, 1324, 1325,
1330, 1333, 1345, 1347, 1350, 1352, 1355, 1357, 1370, 1376, 1377,
1379, 1383, 1384, 1387, 1391, 1397,1273, 1404, 1405, 1411, 1412,
1428, 1433, 1434, 1438, 1438, 1441, 1461, 1566, 1571, 1573, 1576,
1589, 1591, 1592, 1593, 1594, 1600, 1605, 1607, 1609, 1611, 1615,
1616, 1617, 1618, 1619, 1620, 1625, 1631, 1635, 1637, 1642, 1645,
1646, 1647, 1649, 1652, 1653, 1654, 1655, 1656, 1661, 1665, 1666,
259 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2(K^8-0329-,,)
1668, 1670, 1671, 1674, 1682, 1683, 1686, 1686, 1717, 1718, 1719,
1720, 1721, 1722, 1723
Comments on Specific
Materials Used as Fuel - Coal
Refuse
3a-B8-l
0778, 0800, 0841, 0957, 0990, 1033, 1035, 1036, 1081, 1138, 1139,
1140, 1141, 1142, 1143, 1156, 1156, 1170, 1173, 1180, 1225, 1272,
1274, 1351, 1399, 1432, 1458, 1459, 1469, 1577, 1602, 1603, 1608
3a-B8-2
0778,
1180,
1602,
0841,
1225,
1603,
0957,
1272,
1608
0990, 1035, 1036, 1081, 1156, 1156, 1170, 1173,
1301, 1351, 1399, 1432, 1458, 1459, 1469, 1577,
3a-B8-3
0990,
1602,
1035,
1603,
1036,
1608
1156, 1180, 1225, 1274, 1432, 1458, 1469, 1577,
3a-B8-4
0957, 0990, 1173, 1274
3a-B8-5
0841,0990, 1170, 1180, 1225, 1301, 1399
Comments on Specific
Materials Used as Fuel - Coal
Combustion Residuals
3a-B9-l
0598, 0717, 0957, 1138, 1139, 1140, 1141, 1142, 1143, 1173, 1251,
1315, 1432
3a-B9-2
0957, 1031, 1138, 1139, 1140, 1141, 1142, 1143, 1173, 1315, 1432
3a-B9-3
1031, 1138, 1139, 1140, 1141, 1142, 1143, 1395, 1432
3a-B9-4
0729, 0957, 0990, 1173, 1188, 1215, 1315, 1395
3a-B9-5
0957, 0990
Comments on Specific
Materials Used as Fuel ¦
Sewage Sludge
3a-B10-l
0612,
0775,
1199,
1287,
1374,
1454,
0619,
0800,
1205,
1288,
1388,
1462,
0624,
0873,
1228,
1290,
1389,
1595,
0684,
1138,
1231,
1297,
1400,
1597,
0713,
1139,
1253,
1317,
1406,
1612,
0725,
1140,
1261,
1331,
1409,
1613,
0726,
1141,
1266,
1335,
1410,
1658,
0727,
1142,
1271,
1349,
1439,
1669,
0738,
1143,
1278,
1359,
1443,
1676,
0753,
1182,
1283,
1371,
1444,
1680,
0759,
1192,
1285,
1373,
1446,
1713
3a-B10-2
0619,
1261
0952, 1014, 1138, 1139, 1140, 1141, 1142, 1143, 1192, 1253,
3a-B10-3
0612, 0873,0952, 1014, 1261
3a-B10-4
0619,
1261,
0873,
1331,
0991,
1335,
1138,
1349,
1139,
1400,
1140,
1409,
1141,
1453
1142, 1143, 1203, 1253,
3a-B10-5
0612,
0759,
1253,
1316,
1400,
1595,
0619,
0775,
1261,
1317,
1406,
1597,
0624,
0873,
1266,
1331,
1409,
1612,
0684,
0952,
1271,
1335,
1410,
1613,
0684,
0991,
1278,
1349,
1439,
1713
0725,
1014,
1283,
1359,
1443,
0726,
1182,
1285,
1371,
1444,
0726, 0727,
1192, 1199,
1287, 1288,
1373, 1374,
1446, 1453,
0738, 0753,
1203, 1228,
1290, 1297,
1388, 1389,
1454, 1462,
3a-B10-6
0612,
0958,
1278,
1349,
1410,
1613,
0624,
1014,
1283,
1359,
1439,
1713
0684, 0725, 0726, 0727, 0738, 0753, 0759, 0775, 0952,
1182, 1192, 1199, 1203, 1228, 1231, 1261, 1266, 1271,
1285, 1287, 1288, 1290, 1297, 1316, 1317, 1331, 1335,
1371, 1373, 1374, 1388, 1389, 1395, 1400, 1406, 1409,
1443, 1444, 1446, 1453, 1454, 1462, 1595, 1597, 1612,
Comments on Specific
Materials Used as Fuel ¦
Processed Fats
3a-Bll-l
0706, 0771, 1259, 1411
Comments on Specific
Materials Used as Ingredients
- Cement Kiln Dust
3a-Cl-l
1449
Comments on Specific
Materials Used as Ingredients
3a-C2-l
0717, 0990, 1138, 1315, 1449
3a-C2-2
0990, 1315
260 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2008-0329-")
- Coal Combustion Residuals
3a-C2-3
0990, 1449
3a-C2-4
990
Comments on Specific
Materials Used as Ingredients
- Foundry Sand
3a-C3-l
0963, 1456
Comments on Specific
Materials Used as Ingredients
- Blast Furnace Slag/Steel
Slag
3a-C4-l
0603,0844, 0911, 1160, 1451
Comments on Legitimacy
Criteria for Fuels - Managed
as a Valuable Commodity
3a-Dl-l
0598, 0674, 0728, 0756, 0780, 0783, 0784, 0912, 0957, 1138, 1139,
1140, 1141, 1142, 1143, 1165, 1168, 1171, 1173, 1188, 1232, 1274,
1275, 1291, 1301, 1318, 1346, 1354, 1398, 1402, 1614
3a-Dl-2
0783, 0871, 1138, 1139, 1140, 1141, 1142, 1143, 1165, 1274, 1291
3a-Dl-3
0739, 0783, 0788, 1274, 1275, 1291
3a-Dl-4
0739, 1170
Comments on Legitimacy
Criteria for Fuels -
Meaningful Heating Value
and Use as a Fuel
3a-D2-l
0598, 0674, 0676, 0717, 0728, 0780, 0783, 0787, 0842, 0862, 0864,
0957, 1012, 1040, 1138, 1139, 1140, 1141, 1142, 1143, 1165, 1166,
1168, 1170, 1171, 1173, 1174, 1188, 1232, 1246, 1247, 1259, 1269,
1272, 1274, 1291, 1318, 1378, 1395, 1398, 1469, 1582
Comments on Legitimacy
Criteria for Fuels - Have
Contaminants at Comparable
Levels or Lower Than
Traditional Fuels
3a-D3-l
0598, 0603, 0693, 0728, 0770, 0776, 0780, 0783, 0784, 0788, 0862,
0865, 0909, 0957, 0962, 1044, 1046, 1138, 1139, 1140, 1141, 1142,
1143, 1158, 1165, 1166, 1170, 1171, 1173, 1188, 1232, 1273, 1277,
1282, 1291, 1312, 1318, 1360, 1363, 1398, 1402, 1571, 1607
3a-D3-2
0579, 0598, 0611, 0674, 0774, 0783, 0787, 0842, 0865, 0871, 0872,
0875, 0909, 0957, 1040, 1040, 1044, 1046, 1138, 1139, 1140, 1141,
1142, 1143, 1165, 1166, 1168, 1170, 1171, 1173, 1188, 1268, 1274,
1289, 1291, 1312, 1318, 1360, 1363, 1395, 1398, 1401, 1686
3a-D3-3
0629, 1040, 1188, 1268, 1274
3a-D3-4
0579, 0611, 0674, 0783, 1274, 1291, 1318, 1360
Comments on Legitimacy
Criteria for Ingredients -
Managed as Valuable
Commodities
3a-El-l
0783, 1165, 1200, 1274, 1291, 1318
Comments on Legitimacy
Criteria for Ingredients -
Useful Contribution
3a-E2-l
0598, 0783,0864, 1138, 1139, 1140, 1141, 1142, 1143, 1165, 1188,
1246, 1274, 1291, 1318
Comments on Legitimacy
Criteria for Ingredients -
Quantifying an Ingredient's
Contribution to
Production/Manufacturing
Activity
3a-E3-l
0598, 0783, 0864, 1165, 1246, 1274, 1291, 1318, 1449
Comments on Legitimacy
Criteria for Ingredients -
Contaminants in Ingredients
3a-E4-l
0579, 0611, 0712, 0770, 0783, 1041, 1188, 1246, 1248, 1274, 1291,
1318, 1460
Comments on Legitimacy
Criteria for Ingredients -
Comparing contaminant
levels in products
3a-E5-l
0674, 0783, 0865, 1041, 1138, 1139, 1140, 1141, 1142, 1143, 1165,
1246, 1274, 1291, 1318, 1395
261 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2008-0329-")
Comments on Non-Waste
Determination Petitions
3a-F-l
0598, 0607, 0607, 0712, 0740, 0756, 0780, 0783, 0784, 0788, 0864,
0865, 0871, 0872, 0962, 1033, 1034, 1042, 1043, 1046, 1138, 1139,
1140, 1141, 1142, 1143, 1157, 1158, 1159, 1163, 1165, 1166, 1168,
1170, 1171, 1185, 1188, 1192, 1200, 1232, 1235, 1247, 1249, 1263,
1272, 1291, 1305, 1346, 1354, 1395, 1398, 1402, 1416, 1460, 1572,
1582
3a-F-2
0717, 0728, 0769, 0774, 0776, 0784, 0787, 0864, 0963, 1037, 1038,
1138, 1139, 1140, 1141, 1142, 1143, 1159, 1165, 1166, 1171, 1180,
1185, 1188, 1192, 1200, 1247, 1251, 1289, 1381, 1402, 1416, 1417,
1456, 1460, 1577, 1602, 1603, 1664, 1677
3a-F-3
0776, 0788, 1166, 1170, 1171, 1185, 1200, 1262, 1310, 1342, 1366,
1416, 1577, 1602, 1603
3a-F-4
0712, 1166, 1170, 1171, 1200, 1262, 1310, 1334, 1338, 1342, 1354,
1356, 1366, 1416, 1416
3a-F-5
0784, 1170, 1171, 1185, 1366, 1402
3a-F-6
0693,0728, 1174, 1260, 1262, 1277, 1282
3a-F-7
0607, 0739, 0769, 0774, 0776, 0780, 0963, 1033, 1037, 1042, 1138,
1139, 1140, 1141, 1142, 1143, 1157, 1159, 1166, 1185, 1200, 1289,
1381, 1417, 1456, 1460, 1577, 1602, 1603, 1664, 1677
Comments on the Other
Approaches for Defining
Solid Wastes
3a-G-l
0607, 0630, 0674, 0712, 0740, 0766, 0774, 0776, 0783, 0784, 0785,
0787, 0862, 0863, 0865, 0868, 0870, 0871, 0872, 0875, 0910, 0951,
0957, 0960, 0962, 0963, 1012, 1037, 1040, 1040, 1046, 1138, 1139,
1140, 1141, 1142, 1143, 1159, 1159, 1165, 1166, 1168, 1169, 1170,
1171, 1173, 1175, 1183, 1184, 1188, 1189, 1192, 1193, 1195, 1198,
1204, 1207, 1211, 1232, 1232, 1235, 1249, 1260, 1263, 1268, 1269,
1272, 1273, 1274, 1277, 1279, 1282, 1286, 1289, 1291, 1293, 1318,
1321, 1322, 1330, 1345, 1350, 1352, 1354, 1375, 1376, 1377, 1383,
1384, 1391, 1398, 1401, 1402, 1405, 1407, 1412, 1416, 1417, 1433,
1434, 1441, 1456, 1566, 1571, 1573, 1594, 1605, 1607, 1647, 1649,
1659, 1665, 1666, 1668, 1671, 1674, 1682, 1683, 1686, 1686
PART 3b: Other Comments on the Proposed Rule and EPA Responses
Proposed Approach -
Definition of Discard
3b-Al-l
1354
3b-Al-2
1038, 1274
3b-Al-3
1274
3b-Al-4
0957, 1156, 1161, 1173, 1251, 1301, 1354
3b-Al-5
0783, 1138, 1139, 1140, 1141, 1142, 1143, 1168, 1291
3b-Al-6
0871,0872
Proposed Approach -
Processing Requirements
3b-A2-l
1138, 1139, 1140, 1141, 1142, 1143, 1166, 1251, 1305
3b-A2-2
0598, 1040, 1416
3b-A2-3
1012, 1138, 1139, 1140, 1141, 1142, 1143, 1269, 1274
3b-A2-4
0871,0990,1165
Comments on Specific
Materials Used as Fuel -
Traditional Fuels
3b-Bl-l
0737
3b-Bl-2
1012
3b-Bl-3
0871,0872
3b-Bl-4
1161, 1458, 1567
262 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2008-0329-")
Comments on Specific
Materials Used as Fuel -
Manure
3b-B2-l
1258
Comments on Specific
Materials Used as Fuel -
Other Biomass
3b-B3-l
0767
3b-B3-2
0781,0788, 1168, 1305
3b-B3-3
0675,0862
3b-B3-4
0774, 0784, 0863, 0871, 0872, 0955, 0957, 0961, 1040, 1046, 1158,
1159, 1165, 1168, 1170, 1171, 1173, 1187, 1188, 1200, 1231, 1232,
1265, 1351, 1360, 1401, 1402, 1455, 1659
3b-B3-5
0631, 0774, 0863, 0871, 0872, 0956, 1040, 1159, 1268, 1300, 1672
3b-B3-6
0774, 0871,0872, 1378
3b-B3-7
0871,0872
3b-B3-8
0608, 0774, 0787, 0863, 0871, 0872, 1393, 1407
3b-B3-9
0844, 0871, 0872, 1158, 1170, 1351, 1360, 1401, 1451
3b-B3-10
0737, 0871,0872, 1170, 1171
3b-B3-ll
0871,0872
3b-B3-12
1231, 1232, 1232
3b-B3-13
1158, 1360, 1380, 1641
3b-B3-14
1037
Comments on Specific
Materials Used as Fuel -
Scrap Tires
3b-B4-l
0864
3b-B4-2
1223
3b-B4-3
1179, 1188, 1354, 1395, 1452
3b-B4-4
0912, 1188, 1354, 1452, 1614
3b-B4-5
1034, 1138, 1166, 1241, 1491, 1681
3b-B4-6
1696
Comments on Specific
Materials Used as Fuel -
Used Oil
3b-B5-l
1211, 1445
3b-B5-2
1247, 1273, 1445, 1566, 1571, 1607, 1665, 1674, 1682
3b-B5-3
0609, 0610, 0613, 0614, 0618, 0622, 0623, 0628, 1032, 1181, 1181,
1233, 1234, 1234, 1236, 1239, 1250, 1252, 1284, 1292, 1348, 1365,
1414, 1430, 1435, 1440, 1445, 1464, 1465, 1466, 1566, 1574, 1584,
1585, 1590, 1598, 1621, 1622, 1623, 1624, 1626, 1627, 1628, 1629,
1630, 1644, 1648, 1650, 1665, 1673, 1674, 1675, 1682
263 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2008-0329-")

3b-B5-4
0609, 0610, 0613, 0614, 0618, 0620, 0622, 0623, 0628, 0766, 0774,
0776, 0785, 0788, 0800, 0870, 0871, 0872, 0910, 0951, 0992, 1032,
1045, 1154, 1164, 1165, 1168, 1171, 1176, 1179, 1181, 1183, 1184,
1189, 1193, 1195, 1196, 1198, 1204, 1207, 1208, 1211, 1224, 1226,
1233, 1234, 1236, 1239, 1240, 1241, 1242, 1243, 1244, 1245, 1247,
1250, 1251, 1252, 1273, 1279, 1281, 1286, 1292, 1293, 1295, 1298,
1299, 1319, 1320, 1321, 1322, 1324, 1325, 1330, 1345, 1347, 1348,
1350, 1352, 1355, 1357, 1364, 1365, 1370, 1376, 1377, 1379, 1383,
1384, 1391, 1404, 1405, 1412, 1414, 1426, 1428, 1430, 1433, 1434,
1435, 1438, 1440, 1441, 1442, 1445, 1461, 1464, 1465, 1466, 1571,
1573, 1574, 1581, 1584, 1585, 1589, 1590, 1591, 1592, 1593, 1594,
1598, 1600, 1601, 1605, 1607, 1609, 1615, 1616, 1617, 1618, 1619,
1620, 1621, 1622, 1623, 1624, 1625, 1626, 1627, 1628, 1629, 1630,
1631, 1635, 1637, 1642, 1644, 1645, 1646, 1647,1648, 1649, 1650,
1652, 1653, 1654, 1655, 1656, 1661, 1666, 1668, 1670, 1671, 1673,
1675, 1683, 1686, 1718, 1719, 1720, 1721, 1723
3b-B5-5
0620, 0627, 0992, 1045, 1155, 1165, 1190, 1206, 1208, 1221, 1222,
1224, 1226, 1227, 1240, 1242, 1243, 1244, 1245, 1257, 1264, 1270,
1281, 1284, 1294, 1295, 1296, 1299, 1302, 1311, 1313, 1319, 1320,
1323, 1324, 1325, 1333, 1336, 1340, 1343, 1344, 1347, 1355, 1357,
1361, 1367, 1368, 1369, 1370, 1372, 1379, 1385, 1386, 1387, 1392,
1396, 1403, 1404, 1408, 1411, 1413, 1420, 1421, 1426, 1428, 1438,
1442, 1448, 1457, 1461, 1470, 1564, 1566, 1576, 1580, 1589, 1591,
1592, 1593, 1600, 1609, 1611, 1615, 1616, 1617, 1618, 1619, 1620,
1625, 1631, 1632, 1633, 1635, 1637, 1638, 1642, 1645, 1646, 1652,
1653, 1654, 1655, 1656, 1660, 1661, 1665, 1670, 1674, 1678, 1678,
1682, 1717, 1718, 1719, 1720, 1721, 1722, 1723, 1724, 1725
3b-B5-6
0609, 0610, 0613, 0614, 0618, 0622, 0623, 0628, 1032, 1181, 1181,
1233, 1234, 1234, 1236, 1239, 1250, 1252, 1284, 1348, 1365, 1414,
1430, 1435, 1440, 1464, 1465, 1466, 1574, 1584, 1585, 1590, 1598,
1621, 1622, 1623, 1624, 1626, 1627, 1628, 1629, 1630, 1644, 1648,
1650, 1673, 1675
3b-B5-7
1273, 1375, 1571, 1607
3b-B5-8
0777
3b-B5-9
1686
Comments on Specific
Materials Used as Fuel - Coal
Refuse
3b-B6-l
0778, 0800, 0841, 0990, 1033, 1156, 1180, 1274, 1301, 1399
3b-B6-2
0729, 1166, 1170, 1274
Comments on Specific
Materials Used as Fuel -
Sewage Sludge
3b-B7-l
0579, 1188, 1203, 1232, 1453, 1582
3b-B7-2
1261, 1685
3b-B7-3
0612, 0624, 0684, 0725, 0726, 0727, 0738, 0753, 0754, 0759, 0775,
0873,0952, 1014, 1138, 1139, 1140, 1141, 1142, 1143, 1182, 1199,
1203, 1228, 1261, 1266, 1271, 1278, 1283, 1285, 1287, 1288, 1290,
1297, 1317, 1359, 1371, 1373, 1374, 1388, 1389, 1400, 1406, 1410,
1439, 1443, 1444, 1446, 1453, 1454, 1462, 1595, 1597, 1612, 1613,
1713
3b-B7-4
0619, 0684, 0726, 0991, 1203, 1231, 1232, 1253, 1261, 1331, 1335,
1349, 1400, 1409, 1453
3b-B7-5
0747, 0991
264 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2(K^8-0329-,,)
Comments on Specific
Materials Used as Ingredients
3b-C-l
603
Comments on Legitimacy
Criteria for Fuels
3b-D-l
0629, 0774, 0784, 0842, 0871, 0872, 0960, 0962, 0963, 1036, 1040,
1040, 1041, 1046, 1138, 1165, 1166, 1170, 1249, 1259, 1268, 1273,
1274, 1277, 1282, 1289, 1305, 1360, 1398, 1402, 1417, 1437, 1456,
1571, 1607, 1686
3b-D-2
0774, 0788, 0960, 0962, 1040, 1289, 1360
3b-D-3
0674, 0864, 0874, 1247, 1307, 1415, 1416, 1469
3b-D-4
1416
3b-D-5
1200, 1248, 1401
Comments on Legitimacy
Criteria for Ingredients
3b-E-l
1200
Comments on Non-Waste
Determination Petitions
3b-F-l
1035, 1469
3b-F-2
0756, 0776, 0784, 0957, 1040, 1040, 1159, 1159, 1165, 1166, 1173,
1263, 1346, 1354, 1402
Comments on
Implementation of the Rule
3b-G-l
0676, 0781, 1292, 1566, 1665, 1674, 1682
3b-G-2
0594, 0606, 0675, 0774, 0784, 0842, 0871, 0872, 0962, 0963, 1040,
1047, 1158, 1165, 1166, 1170, 1277, 1282, 1289, 1305, 1390, 1398,
1402, 1417, 1456, 1575, 1643
3b-G-3
0739, 0780, 0784, 0788, 0871, 1035, 1402, 1416
Comments on Economic and
Environmental Impacts
3b-H-l
0538,
0620,
0641,
0652,
0663,
0678,
0690,
0701,
0716,
0733,
0750,
0765,
0787,
0802,
0813,
0824,
0835,
0850,
0861,
0878,
0889,
0900,
0914,
0925,
0936,
0947,
0968,
0979,
0575,
0621,
0642,
0653,
0664,
0679,
0691,
0702,
0718,
0734,
0751,
0767,
0790,
0803,
0814,
0825,
0836,
0851,
0865,
0879,
0890,
0901,
0915,
0926,
0937,
0948,
0969,
0980,
0575,
0626,
0643,
0654,
0665,
0680,
0692,
0703,
0719,
0735,
0752,
0768,
0791,
0804,
0815,
0826,
0837,
0852,
0866,
0880,
0891,
0902,
0916,
0927,
0938,
0949,
0970,
0981,
0579,
0632,
0644,
0655,
0666,
0681,
0693,
0704,
0720,
0736,
0755,
0769,
0792,
0805,
0816,
0827,
0838,
0853,
0867,
0881,
0892,
0903,
0917,
0928,
0939,
0950,
0971,
0982,
0580,
0633,
0645,
0656,
0667,
0682,
0694,
0705,
0721,
0742,
0757,
0771,
0793,
0806,
0817,
0828,
0839,
0854,
0868,
0882,
0893,
0904,
0918,
0929,
0940,
0953,
0972,
0983,
0596,
0634,
0646,
0657,
0668,
0683,
0695,
0707,
0722,
0743,
0758,
0772,
0794,
0807,
0818,
0829,
0840,
0855,
0871,
0883,
0894,
0905,
0919,
0930,
0941,
0957,
0973,
0984,
0606,
0635,
0647,
0658,
0669,
0685,
0696,
0708,
0723,
0744,
0760,
0773,
0795,
0808,
0819,
0830,
0845,
0856,
0872,
0884,
0895,
0906,
0920,
0931,
0942,
0961,
0974,
0985,
0607,
0636,
0648,
0659,
0670,
0686,
0697,
0709,
0724,
0745,
0761,
0779,
0796,
0809,
0820,
0831,
0846,
0857,
0873,
0885,
0896,
0907,
0921,
0932,
0943,
0964,
0975,
0986,
0611,
0638,
0649,
0660,
0671,
0687,
0698,
0710,
0730,
0746,
0762,
0783,
0797,
0810,
0821,
0832,
0847,
0858,
0875,
0886,
0897,
0908,
0922,
0933,
0944,
0965,
0976,
0987,
0616,
0639,
0650,
0661,
0672,
0688,
0699,
0711,
0731,
0748,
0763,
0784,
0798,
0811,
0822,
0833,
0848,
0859,
0876,
0887,
0898,
0912,
0923,
0934,
0945,
0966,
0977,
0988,
0617,
0640,
0651,
0662,
0677,
0689,
0700,
0712,
0732,
0749,
0764,
0784,
0801,
0812,
0823,
0834,
0849,
0860,
0877,
0888,
0899,
0913,
0924,
0935,
0946,
0967,
0978,
0989,
265 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2(K^8-0329-,,)
3b-H-2
3b-H-3
3b-H-4
3b-H-5
3b-H-6
0990,
1002,
1016,
1027,
1048,
1059,
1070,
1082,
1093,
1104,
1115,
1126,
1138,
1149,
1168,
1216,
1261,
1312,
1375,
1432,
1479,
1490,
1502,
1513,
1524,
1535,
1547,
1558,
1587,
1651,
0991,
1003,
1017,
1028,
1049,
1060,
1071,
1083,
1094,
1105,
1116,
1127,
1139,
1150,
1169,
1217,
1267,
1327,
1395,
1445,
1480,
1492,
1503,
1514,
1525,
1536,
1548,
1559,
1588,
1659,
0993,
1004,
1018,
1029,
1050,
1061,
1072,
1084,
1095,
1106,
1117,
1128,
1140,
1151,
1172,
1218,
1268,
1328,
1402,
1449,
1481,
1493,
1504,
1515,
1526,
1537,
1549,
1560,
1596,
1663,
0994,
1005,
1019,
1030,
1051,
1062,
1073,
1085,
1096,
1107,
1118,
1129,
1141,
1152,
1173,
1219,
1273,
1329,
1419,
1471,
1482,
1494,
1505,
1516,
1527,
1538,
1550,
1561,
1599,
1667,
0995,
1006,
1020,
1034,
1052,
1063,
1074,
1086,
1097,
1108,
1119,
1130,
1142,
1153,
1180,
1220,
1276,
1332,
1422,
1472,
1483,
1495,
1506,
1517,
1528,
1539,
1551,
1562,
1601,
1686,
0996,
1007,
1021,
1035,
1053,
1064,
1075,
1087,
1098,
1109,
1120,
1131,
1143,
1157,
1188,
1230,
1280,
1337,
1423,
1473,
1484,
1496,
1507,
1518,
1529,
1540,
1552,
1567,
1604,
1696,
0997,
1008,
1022,
1039,
1054,
1065,
1076,
1088,
1099,
1110,
1121,
1132,
1144,
1158,
1192,
1232,
1284,
1339,
1424,
1474,
1485,
1497,
1508,
1519,
1530,
1541,
1553,
1571,
1607,
1716
0998,
1009,
1023,
1040,
1055,
1066,
1077,
1089,
1100,
1111,
1122,
1133,
1145,
1161,
1196,
1235,
1291,
1342,
1425,
1475,
1486,
1498,
1509,
1520,
1531,
1542,
1554,
1572,
1614,
0999,
1010,
1024,
1041,
1056,
1067,
1078,
1090,
1101,
1112,
1123,
1134,
1146,
1163,
1213,
1237,
1305,
1353,
1426,
1476,
1487,
1499,
1510,
1521,
1532,
1543,
1555,
1578,
1639,
1000,
1011,
1025,
1042,
1057,
1068,
1079,
1091,
1102,
1113,
1124,
1135,
1147,
1165,
1214,
1247,
1308,
1358,
1427,
1477,
1488,
1500,
1511,
1522,
1533,
1544,
1556,
1579,
1640,
1001,
1013,
1026,
1047,
1058,
1069,
1080,
1092,
1103,
1114,
1125,
1136,
1148,
1166,
1215,
1260,
1310,
1364,
1432,
1478,
1489,
1501,
1512,
1523,
1534,
1546,
1557,
1586,
1647,
0579,
1138,
1265,
0611,
1139,
1291,
0616,
1140,
1306,
0783,
1141,
1572,
0865,
1142,
1614,
0871,
1143,
1686
0912,
1158,
0961, 0992,
1180, 1247,
1034, 1040,
1261, 1263,
0598,
1686
0756, 0868, 1034, 1180, 1196, 1247, 1346, 1375, 1572, 1686,
0617,
0983,
1148,
1218,
1339,
0639,
0999,
1167,
1219,
1356,
0643,
1023,
1174,
1220,
1419,
0646,
1066,
1177,
1260,
1422,
0773,
1078,
1202,
1309,
1423,
0779,
1088,
1202,
1310,
1424,
0812,
1109,
1213,
1314,
1427,
0818,
1114,
1214,
1327,
1534,
0840,
1124,
1215,
1328,
1657
0861, 0950,
1132, 1144,
1216, 1217,
1334, 1338,
0596,
1142,
1307,
1417,
1604,
0580,
0644,
0656,
0667,
0682,
0695,
0767,
1143,
1326,
1432,
1611,
0626,
0645,
0657,
0668,
0683,
0696,
0772,
1165,
1331,
1432,
1643
0632,
0647,
0658,
0669,
0685,
0697,
0841,
1170,
1335,
1437,
0633,
0648,
0659,
0670,
0686,
0698,
0990,
1172,
1349,
1452,
0634,
0649,
0660,
0671,
0687,
0699,
1037,
1188,
1354,
1453,
0635,
0650,
0661,
0672,
0688,
0700,
1040,
1203,
1366,
1567,
0636,
0651,
0662,
0677,
0689,
0701,
1138,
1247,
1395,
1575,
0638,
0652,
0663,
0678,
0690,
0702,
1139,
1255,
1399,
1576,
0640,
0653,
0664,
0679,
0691,
0703,
1140, 1141,
1268, 1276,
1409, 1415,
1578, 1582,
0641,
0654,
0665,
0680,
0692,
0704,
0642,
0655,
0666,
0681,
0694,
0705,
266 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2(K^8-0329-,,)
3b-H-7
3b-H-8
0707, 0708, 0709, 0710, 0711, 0718, 0719, 0720, 0721, 0722, 0723,
0724, 0730, 0731, 0732, 0733, 0734, 0735, 0736, 0742, 0743, 0744,
0744, 0745, 0746, 0748, 0749, 0750, 0751, 0752, 0755, 0757, 0758,
0760, 0761, 0762, 0763, 0764, 0765, 0768, 0782, 0786, 0790, 0791,
0792, 0793, 0794, 0795, 0796, 0797, 0798, 0801, 0802, 0803, 0804,
0805, 0806, 0807, 0808, 0809, 0810, 0811, 0813, 0814, 0815, 0816,
0817, 0819, 0820, 0821, 0822, 0823, 0824, 0825, 0826, 0827, 0828,
0829, 0830, 0831, 0832, 0833, 0834, 0835, 0836, 0837, 0838, 0839,
0845, 0846, 0847, 0848, 0849, 0850, 0851, 0852, 0853, 0854, 0855,
0856, 0857, 0858, 0859, 0860, 0867, 0876, 0877, 0878, 0879, 0880,
0881, 0882, 0883, 0884, 0885, 0886, 0887, 0888, 0889, 0890, 0891,
0892, 0893, 0894, 0895, 0896, 0897, 0898, 0899, 0900, 0901, 0902,
0903, 0904, 0905, 0906, 0907, 0908, 0910, 0912, 0913, 0914, 0915,
0916, 0917, 0918, 0919, 0920, 0921, 0922, 0923, 0924, 0925, 0926,
0927, 0928, 0929, 0930, 0931, 0932, 0933, 0934, 0935, 0936, 0937,
0938, 0939, 0940, 0941, 0942, 0943, 0944, 0945, 0946, 0947, 0948,
0949, 0964, 0965, 0966, 0967, 0968, 0969, 0970, 0971, 0972, 0973,
0974, 0975, 0976, 0977, 0978, 0979, 0980, 0981, 0982, 0984, 0985,
0986, 0987, 0988, 0989, 0993, 0994, 0995, 0996, 0997, 0998, 1000,
1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011,
1016, 1017, 1018, 1019, 1020, 1021, 1022, 1024, 1025, 1026, 1027,
1028, 1029, 1030, 1034, 1041, 1042, 1048, 1049, 1050, 1051, 1052,
1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060, 1061, 1062, 1063,
1064, 1065, 1067, 1068, 1069, 1070, 1071, 1072, 1073, 1074, 1075,
1076, 1077, 1079, 1080, 1082, 1083, 1084, 1085, 1086, 1087, 1089,
1090, 1091, 1092, 1093, 1094, 1095, 1096, 1097, 1098, 1099, 1100,
1101, 1102, 1103, 1104, 1105, 1106, 1107, 1108, 1110, 1111, 1112,
1113, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1125,
1126, 1127, 1128, 1129, 1130, 1131, 1133, 1134, 1135, 1136, 1138,
1139, 1140, 1141, 1142, 1143, 1145, 1146, 1147, 1149, 1150, 1151,
1152, 1153, 1166, 1167, 1174, 1308, 1309, 1314, 1329, 1332, 1334,
1337, 1338, 1356, 1425, 1445, 1471, 1472, 1473, 1474, 1475, 1476,
1477, 1478, 1479, 1480, 1481, 1482, 1483, 1484, 1485, 1486, 1487,
1488, 1489, 1490, 1492, 1493, 1494, 1495, 1496, 1497, 1498, 1499,
1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, 1508, 1509, 1510,
1511, 1512, 1513, 1514, 1515, 1516, 1517, 1518, 1519, 1520, 1521,
1522, 1523, 1524, 1525, 1526, 1527, 1528, 1529, 1530, 1531, 1532,
1533, 1535, 1536, 1537, 1538, 1539, 1540, 1541, 1542, 1543, 1544,
1546, 1547, 1548, 1549, 1550, 1551, 1552, 1553, 1554, 1555, 1556,
1557, 1558, 1559, 1560, 1561, 1562, 1572, 1614, 1667
0579, 0611, 0787, 0869, 1040, 1263, 1273, 1571, 1607
1247, 1273, 1571, 1607
Comments on Materials not
Specifically Identified in the
Preamble - Using the General
Framework of the
Regulations	
3b-Il-l
0774, 0776, 0871, 0872, 0909, 0957, 1040, 1138, 1139, 1140, 1141,
1142, 1143, 1170, 1171, 1173, 1200, 1202, 1212, 1274, 1390
Comments on Materials not
Specifically Identified in the
Preamble - Questions on
Waste Status of Substances
3b-I2-l
0776
3b-I2-2
0874, 1447
3b-I2-3
0871,0960, 1015, 1165, 1186, 1194, 1267, 1467, 1606
267 of 275

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PART 4: Comment Crosswalk
- Comments on the Proposed Rule
Response to Comments Document -NHSM Rule
Comment Topic
Comment
Code
Comment IDs (all start with: "EPA-HQ-RCRA-2008-0329-")
used as Fuel in General


Comments on Materials not
Specifically Identified in the
Preamble - Questions on
Gases (Flared, Contained
Gases, etc.)
3b-I3-l
1171, 1275
3b-I3-2
0579, 0611, 0728, 0756, 0863, 0957, 1162, 1173, 1251, 1263, 1346,
1354, 1407
3b-I3-3
0772, 0875, 0991, 1312
3b-I3-4
0598, 0674, 0783, 1138, 1139, 1140, 1141, 1142, 1143, 1165, 1168,
1291
Comments on Materials not
Specifically Identified in the
Preamble - Questions on
Waste Status of Substances
used as Ingredients
3b-I4-l
1318
Comments on Materials not
Specifically Identified in the
Preamble - Other Questions
on Waste Status
3b-I5-l
0629, 1165
Miscellaneous Comments
3b-J-l
1229
3b-J-2
0962, 1036, 1159, 1398
3b-J-3
0781, 1168, 1305, 1390
3b-J-4
0535, 0546, 0584, 0594, 0601, 1158, 1662, 1684
268 of 275

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PART 4: Comment Crosswalk
- Comments on the ANPRM (as responded to in the final rule)
Response to Comments Document -NHSM Rule
Crosswalk for Comments on Advanced Notice of Proposed Rule Making
The table below links those ANPRM comments that were also addressed in the final rule
response to comments (which covered more topics than the ANPRM responses in the proposal).
All of the ANPRM comments were considered in development of the proposed rule, but the final
rule responses supersede the proposal responses.
ANPKM Commcnls Linked
Id l-'iiiiil Rule Topics
l-'iiiiil Rule
( OHllHClM
("ode
AM'RM Comnienl IDs
(:dl sliirl willi: "IP \-IIQ-R( UA-200S-032')-")
Proposed Approach -
Definition of Discard
3n-\l-l
o34(i. o35o. 0359. 0382. o3SV. o4lo
3a-Al-2
0374, 0397
3a-Al-3
0334. 0346. 0347. 0350. 0354. 0359. 0374. 0374. 0375. 0385.
0387. 0394. 0397
3a-Al-4
0362.0375.0382.0389. 0410
3a-Al-5
0410
3a-Al-6
0375.0410
3a-Al-7
0346
3 a-A1 -8
0342. 0346. 0366. 0374. 0389. 0393
3a-Al-9

3a-Al-l()
0332. 0346
3a-A1-11

3a-Al-12
0328. 0346. 0352. 0362. 0374. 0375. 0386. 0387. 0389. 0395
3a-Al-13
0346. 0375. 0385
Proposed Approach -
Processing Requirements
3a-A2-l
0395.0410
3a-A2-2
0334. 0335. 0344. 0346. 0347. 0350. 0352. 0374. 0376. 0380.
0384. 0389. 0392. 0397
Comments on Specific
Materials Used as Fuel -
Traditional Fuels
3a-Bl-l
0338. 0344. 0350. 0352. 0381. 0389. 0396. 0402
3a-Bl-2
0338. 0347. 0354. 0366. 0380. 0381. 0392
3a-B 1 -3
0352, 0354
3a-Bl-4
0339
3a-Bl-5

Comments on Specific
Materials Used as Fuel -
Manure
3a-B2-l
0343. 0403
3a-B2-2

3a-B2-3
0347
3a-B2-4
0343
3a-B2-5
0343
3a-B2-6

3a-B2-7

Comments on Specific
Materials Used as Fuel - Oilier
Biomass
3a-B3-l
0332. 0333. 0335. 0360. 0374
3a-B3-2
0335. 0360. 0374
3a-B3-3
0335. 0364. 0374
269 of 275

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PART 4: Comment Crosswalk
- Comments on the ANPRM (as responded to in the final rule)
Response to Comments Document -NHSM Rule
ANPRM Comments Linked
to Final Rule Topics
l-inal Rule
( (mimen(
Code
ANPRM Comnienl IDs
(all start uilli: "i:PA-IIQ-RCRA-2()()8-()32y-")

3a-B3-4
0364
3a-B3-5
0374
Comments on Specific
Materials Used as Fuel - Pulp
and Paper Sludge
3a-B4-l

3a-B4-2

3a-B4-3

3a-B4-4

3a-B4-5

3a-B4-6

Comments on Specific
Materials Used as Fuel - Scrap
Tires
3a-B5-l
0329. 0334. 0343. 0346. 0353. 0374. 0405
3a-B5-2
0329. 0346. 0353. 0374. 0384. 0405
3a-B5-3
0329. 0340. 0346. 0374. 0401
3a-B5-4
0343. 0345. 0353. 0371. 0374. 0405
3a-B5-5
0410
3a-B5-6
0345. 0346. 0352. 0353. 0357. 0401
3a-B5-7
0341.0371.0410
3a-B5-8
0353
3a-B5-9
0346. 0357. 0398
3a-B5-10
0329. 0346. 0347. 0352. 0353. 0357. 0374. 0384. 0398. 0401
Comments on Specific
Materials Used as Fuel -
Rcsinatcd Wood Residuals
3a-B6-l
0339.0341
3a-B6-2
0331. 0335. 0370. 0374. 0388
3a-B6-3
0374.0388
3a-B6-4
0374
3a-B6-5
0370.0374.0381.0402
3a-B6-6
0370
3a-B6-7
0374
Comments on Specific
Materials Used as Fuel - Used
Oil
3a-B7-l
0334. 0337. 0339. 0344. 0350. 0374
3a-B7-2
0337. 0373. 0389. 0394
3a-B7-3
0337. 0394
3a-B7-4
0337, 0339, 0374
3a-B7-5
0394
3a-B7-6

3a-B7-7
0361
3a-B7-8
0394
3a-B7-9

3a-B7-10

Comments on Specific
Materials Used as Fuel - Coal
3a-B8-l
0346. 0404
3a-B8-2
0346
270 of 275

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PART 4: Comment Crosswalk
- Comments on the ANPRM (as responded to in the final rule)
Response to Comments Document -NHSM Rule
WPRM Comments Linked
to Final Rule Topics
l-'inal Rule
( OIllllK'lll
Code
ANPKM Comnienl IDs
(all start uilli: "i:i>A-llQ-RCRA-2()()8-()32y-")
Refuse
3a-B8-3
0404
3a-B8-4
0341
3a-B8-5
0346. 0404
Comments on Specific
Materials Used as Fuel - Coal
Combustion Residuals
3a-B9-l
0349. 0367. 0368
3a-B9-2
0367, 0368, 0377
3a-B9-3
0377.0404
3a-B9-4
0378
3a-B9-5

Comments on Specific
Materials Used as Fuel -
Sewage Sludge
3a-B 10-1
0356, 0372
3a-B 10-2
0363,0391
3a-B 10-3
0363,0391
3a-B10-4
0356, 0372
3a-B 10-5

3a-B10-6

Comments on Specific
Materials Used as Fuel -
Processed Fats
3a-Bl 1-1
0334.0358.0381.0402
Comments on Specific
Materials Used as Ingredients -
Cement Kiln Dust
3a-Cl-l
0334. 0366
Comments on Specific
Materials Used as Ingredients -
Coal Combustion Residuals
3a-C2-l
0349. 0378
3a-C2-2
0378
3a-C2-3
0378
3a-C2-4

Comments on Specific
Materials Used as Ingredients -
Foundrv Sand
3a-C3-l
0334.0361
Comments on Specific
Materials Used as Ingredients -
Blast Furnace Slag/Steel Slag
3a-C4-l
0334,0390
Comments on Legitimacy
Criteria for Fuels - Managed
as a Valuable Commodity
3a-D 1-1
0334. 0336. 0339. 0343. 0355
3a-Dl -2
0334. 0336. 0339. 0374
3a-Dl-3
0339. 0353. 0355. 0362. 0376
3 a-D .1-4
0343. 0346. 0355
Comments on Legitimacy
Criteria for Fuels - Meaningful
Heating Value and Use as a
Fuel
3a-D2-l
0334. 0336. 0339. 0343. 0346. 0350. 0353. 0355. 0359. 0367.
0368. 0374. 0376. 0381. 0388. 0389. 0396. 0399. 0400. 0402
Comments on Legitimacy
Criteria for Fuels - Have
Contaminants at Comparable
Levels or Lower Than
3a-D3-l
0334. 0336. 0339. 0346. 0350. 0353. 0380. 0383. 0392
3a-D3-2
0334. 0336. 0339. 0346. 0353. 0355. 0374. 0376. 0381. 0383.
0402
271 of 275

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PART 4: Comment Crosswalk
- Comments on the ANPRM (as responded to in the final rule)
Response to Comments Document -NHSM Rule
WPRM Comments Linked
to Final Rule Topics
l-'inal Rule
( OIllllK'lll
Code
ANPKM Comnienl IDs
(all starl willi: "LI*A-IIQ-RCRA-2008-0J2!>-")
Traditional Fuels
3a-D3-4
0343
3a-D3-5
0334. 0339. 0355. 0373
Comments on Legitimacy
Criteria for Ingredients -
Managed as Valuable
Commodities
3a-El-l
0334. 0336. 0339
Comments on Legitimacy
Criteria for Ingredients -
Useful Contribution
3a-E2-l
0334. 0336. 0339. 0344. 0359
Comments on Legitimacy
Criteria for Ingredients -
Quantifying an Ingredient's
Contribution to
Production/Manufacturing
Activity
3a-E3-l
0334. 0336. 0339
Comments on Legitimacy
Criteria for Ingredients -
Contaminants in Ingredients
3a-E4-l
0334. 0336. 0339
Comments on Legitimacy
Criteria for Ingredients -
Comparing contaminant levels
in products
3a-E5-I
0334. 0336. 0339
Comments on Non-Waste
Determination Petitions
3a-F-l
0328. 0330. 0339. 0346. 0374
3a-F-2

3a-F-3
0346
3a-F-4
0346
3a-F-5
0346
3a-F-6

3a-F-7

Comments on the Other
Approaches for Defining Solid
Wastes
3a-G-l
0339. 0346
Proposed Approach -
Definition of Discard
3b-A 1-1
0380. 0387. 0389. 0392. 0393. 0395. 0403
3b-Al-2
0336,0373
3b-Al-3

3b-Al-4
0389
3b-Al-5
0374
3b-A1 -6

Proposed Approach -
Processing Requirements
3b-A2-l

3b-A2-2

3b-A2-3

3b-A2-4

272 of 275

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PART 4: Comment Crosswalk
- Comments on the ANPRM (as responded to in the final rule)
Response to Comments Document -NHSM Rule
WPRM Comments Linked
to Final Rule Topics
l-'inal Rule
( OIllllK'lll
Code
ANPKM Comnienl IDs
(all start uilli: "i:i>A-IIQ-RCRA-2()()8-()32y-")
Comments on Specific
Materials Used as Fuel -
Traditional Fuels
3b-B 1 -1

3b-B 1-2

3b-B 1-3


3b-B 1-4

Comments on Specific
Materials Used as Fuel -
Manure
3b-B2-l
0403
Comments on Specific
Materials Used as Fuel - Other
Bio mass
3b-B3-l

3b-B3-2
0343. 0364.
3b-B3-3


3b-B3-4
0332. 0333. 0346. 0374. 0396. 0399. 0400

3b-B3-5
0364. 0374

3b-B3-6
0332,0333,0374

3b-B3-7


3b-B3-8
0364. 0374

3b-B3-9
0346. 0355. 0374

3b-B3-l()
0346. 0355. 0374

3b-B3-l 1


3b-B3-12


3b-B3-13
0374

3b-B3-14

Comments on Specific
Materials Used as Fuel - Scrap
Tires
3b-B4-l

3b-B4-2

3b-B4-3
0353

3b-B4-4


3b-B4-5


3b-B4-6

Comments on Specific
Materials Used as Fuel - Used
Oil
3b-B5-l

3b-B5-2

3b-B5-3


3b-B5-4
0340. 0374

3b-B5-5


3b-B5-6


3b-B5-7


3b-B5-8


3b-B5-9

Comments on Specific
Materials Used as Fuel - Coal
Refuse
3b-B6-l

3b-B6-2
0346
273 of 275

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PART 4: Comment Crosswalk
- Comments on the ANPRM (as responded to in the final rule)
Response to Comments Document -NHSM Rule
WPRM Comments Linked
to Final Rule Topics
l-'inal Rule
( OIllllK'lll
Code
ANPKM Comnienl IDs
(all start uilli: ••LI>A-IIQ-RCRA-2()()8-()32y-")
Comments on Specific
Materials Used as Fuel -
Sewage Sludge
3b-B7-l
0334
3b-B7-2

3b-B7-3

3b-B7-4
0356.0372.0391
3b-B7-5

Comments on Specific
Materials Used as Ingredients
3b-C-l
0384. 0390
Comments on Legitimacy
Criteria for Fuels
3b-D-1
0342. 0346. 0374. 0375. 0380. 0392
3b-D-2
0350. 0359
3b-D-3
0380,0392
3b-D-4

3b-D-5
0343. 0355. 0363. 0380. 0387. 0388. 0392. 0399. 0400.
Comments on Legitimacy
Criteria for Ingredients
3b-E-l
0359, 0393
Comments on Non-Waste
DctcrminationPclilions
3b-F-l

3b-F-2

Comments on Implementation
of the Rule
3b-G-l

3b-G-2
0346
3b-G-3

Comments on Economic and
Env i ronmcnla 1 I mpacls
3b-H-l
0352. 0374. 0375. 0393
3b-H-2
0374
3b-H-3
0344. 0359
3b-H-4
0410
3b-H-5
0330. 0334. 0346. 0353. 0374. 0395
3b-H-6
0410
3b-H-7

3b-H-8

Comments on Materials not
Specifically Identified in the
Preamble - Using the General
Framework of the Regulations
3b-11-1
0334. 0335. 0346. 0374. 0380. 0392. 0410
Comments on Materials not
Specifically Identified in the
Preamble - Questions on
Waste Status of Substances
used as Fuel in General
3b-I2-l
0410
3b-I2-2
0348. 0358
3b-I2-3
0398
Comments on Materials not
Specifically Identified in the
Preamble - Questions on Gases
(Flared. Contained Gases, etc.)
3b-I3-l
0374
3b-I3-2
0334
3b-I3-3

3b-I3-4
0374, 0387
274 of 275

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PART 4: Comment Crosswalk
- Comments on the ANPRM (as responded to in the final rule)
Response to Comments Document -NHSM Rule
\\PR\1 Comments Linked
to Final Rule Topics
l-'inal Rule
( OIllllK'lll
Code
ANPKM Comnienl IDs
(all start uilli: "LPA-IIQ-RCRA-2008-0J2!)-")
Comments on Materials not
Specifically Identified in the
Preamble - Questions on
Waste Status of Substances
used as Ingredients
3b-I4-l
0384. 0390
Comments on Materials not
Specifically Identified in the
Preamble - Other Questions on
Waste Status
3b-I5-l

M i see 11 a ncous Co mme nls
3b-J-1

3b-J-2

3b-J-3

3b-J-4

Major Comments Received on
the Advance Notice of
Proposed Rulemaking
(ANPRM) as Responded to in
the Proposed Rule
3c
0326. 0351. 0365. 0369. 0379
275 of 275

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