[Federal Register Volume 75, Number 107 (Friday, June 4, 2010)]
[Proposed Rules]
[Pages 31844-31893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10837]
[[Page 31843]]
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Part II
Environmental Protection Agency
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40 CFR Part 241
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Identification of Non-Hazardous Secondary Materials That Are Solid
Waste; Proposed Rule
Federal Register / Vol. 75 , No. 107 / Friday, June 4, 2010 /
Proposed Rules
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 241
[EPA-HQ-RCRA-2008-0329; FRL-9148-2]
RIN 2050-AG44
Identification of Non-Hazardous Secondary Materials That Are
Solid Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On January 2, 2009, the Environmental Protection Agency (EPA
or the Agency) issued an Advanced Notice of Proposed Rulemaking (ANPRM)
to solicit comment on which non-hazardous secondary materials that are
used as fuels or ingredients in combustion units are solid wastes under
the Resource Conservation and Recovery Act (RCRA). The meaning of
``solid waste'' as defined under RCRA is of particular importance since
it will determine whether a combustion unit is required to meet
emissions standards for solid waste incineration units issued under
section 129 of the Clean Air Act (CAA) or emissions standards for
commercial, industrial, and institutional boilers issued under CAA
section 112. CAA section 129 states that the term ``solid waste'' shall
have the meaning ``established by the Administrator pursuant to
[RCRA].'' EPA is proposing a definition of non-hazardous solid waste
that would be used to identify whether non-hazardous secondary
materials burned as fuels or used as ingredients in combustion units
are solid waste. EPA is also proposing that non-hazardous secondary
materials that have been discarded, and are therefore solid wastes, may
be rendered products after they have been processed (altered chemically
or physically) into a fuel or ingredient product. This proposed rule is
necessary to identify units for the purpose of developing certain
standards under sections 112 and 129 of the CAA. In addition to this
proposed rule, EPA is concurrently proposing air emission requirements
under CAA section 112 for industrial, commercial, and institutional
boilers and process heaters, as well as air emission requirements under
CAA section 129 for commercial and industrial solid waste incineration
units.
DATES: Comments. Comments must be received on or before July 19, 2010.
Under the Paperwork Reduction Act, comments on the information
collection provisions are best assured of having full effect if the
Office of Management and Budget (OMB) receives a copy of your comments
on or before July 6, 2010.
Public Hearing. We will hold a public hearing concerning this
proposed rule and the interrelated proposed CAA rules, discussed in
this proposal and published in the proposed rules section of today's
Federal Register, on June 21, 2010. Persons requesting to speak at a
public hearing must contact EPA by June 14, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2008-0329, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: Comments may be sent by electronic mail (e-mail)
to: [email protected], Attention Docket ID No. EPA-HQ-RCRA-2008-0329.
In contrast to EPA's electronic public docket, EPA's e-mail system is
not an ``anonymous access'' system. If you send an e-mail comment
directly to the docket without going through EPA's electronic public
docket, EPA's e-mail system automatically captures your e-mail address.
E-mail addresses that are automatically captured by EPA's e-mail system
are included as part of the comment that is placed in the official
public docket, and made available in EPA's electronic public docket.
Fax: Comments may be faxed to 202-566-9744, Attention
Docket ID No. EPA-HQ-RCRA-2008-0329.
Mail: Proposed Rulemaking--Identification of Non-Hazardous
Secondary Materials That Are Solid Waste, Environmental Protection
Agency, Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC
20460. Please include a total of 2 copies. In addition, please mail a
copy of your comments on the information collection provisions to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW.,
Washington, DC 20503.
Hand Delivery: Deliver two copies of your comments to
Proposed Rulemaking--Identification of Non-Hazardous Secondary
Materials That Are Solid Waste, EPA/DC, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington, DC 20460. Attention Docket ID No.
EPA-HQ-RCRA-2008-0329. Such deliveries are only accepted during the
Docket's normal hours of operation and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2008-0329. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
We also request that interested parties who would like information they
previously submitted to EPA to be considered as part of this action, to
identify the relevant information by docket entry numbers and page
numbers.
Public Hearing: We will hold a public hearing concerning the
proposed rule on June 21, 2010. Persons interested in presenting oral
testimony at the hearing should contact Ms. Odessa Bowling, Program
Implementation and Information Division, Office of Resource
Conservation and Recovery, at (703) 308-8404 by June 14, 2010. The
public hearing will be held in the Washington DC area at a location and
time that will be posted at the following Web site: http://www.epa.gov/osw/nonhaz/definition.htm. Please refer to this Web site to confirm the
date of the public hearing as well. If no one requests to
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speak at the public hearing by June 14, 2010 then the public hearing
will be cancelled and a notification of cancellation posted on the
following web site: http://www.epa.gov/osw/nonhaz/definition.htm.
Information regarding the interrelated CAA proposals referenced can be
found at http://www.epa.gov/airquality/combustion.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
RCRA Docket is (202) 566-0270.
FOR FURTHER INFORMATION CONTACT: George Faison, Program Implementation
and Information Division, Office of Resource Conservation and Recovery,
5303P, Environmental Protection Agency, Ariel Rios Building, 1200
Pennsylvania Avenue, NW., Washington, DC 20460-0002; telephone number:
703-305-7652; fax number: 703-308-0509; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
A. Does This Action Apply to Me?
Categories and entities potentially affected by this action
include:
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Generators Users
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Major boiler type and
Major generator category NAICS* primary industry NAICS*
category
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Iron and Steel Mills................. 331111................. Industrial Boilers:
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Food Manufacturing..... 311, 312
Pulp and Paper Mills... 3221
Chemical Manufacturing. 325
Other Rubber Product Manufacturing... 32629.................. Petroleum Refining..... 32411
Primary Metal 331
Manufacturing.
Fabricated Metal 332
Manufacturing.
Logging.............................. 113310................. Other Manufacturing.... 313, 339, 321, 333,
336, 511, 326, 316,
327
Sawmills and Wood Preservation....... 32111..................
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Veneer, Plywood, and Engineered Wood 32121.................. Commercial Boilers:
Product Manufacturing.
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Pulp, Paper, and Paperboard Mills.... 3221................... Office................. 813, 541, 921
Cattle Ranching and Farming.......... 1121................... Warehouse.............. 493
Hog and Pig Farming.................. 1122................... Retail................. 442-454
Poultry and Egg Production........... 1123................... Education.............. 611
Sheep and Goat Farming............... 1124................... Social Assistance...... 624
Horses and Other Equine Production... 112920................. Lodging, Restaurant.... 721, 722
Crop Production...................... 111.................... Health Care Facilities. 621
Support Activities for Crop 11511.................. Other.................. 922140, others
Production.
Food Manufacturing................... 311....................
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Beverage and Tobacco Product 312.................... Common Non-Manufacturing Boilers:
Manufacturing.
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Construction of Buildings............ 236.................... Agriculture (crop & 111, 112, 115
livestock production).
Site Preparation Contractors......... 238910................. All Mining............. 212
Landscaping Services................. 561730................. Construction........... 236
Iron and Steel Mills................. 331111.................
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Fossil Fuel Electric Power Generation 221112................. Other Boilers:
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Cement Manufacturing................. 327310................. Electric Utility 2211
Boilers.
Bituminous Coal and Lignite Surface 212111.................
Mining.
Bituminous Coal Underground Mining... 212112................. Non HW Burning Cement 327310
Kilns.
Anthracite Mining.................... 212113.................
Sewage Treatment Facilities.......... 221320.................
Solid Waste Collection and Solid 562111, 562212.........
Waste Landfill.
Metal-casting industry............... 331522.................
Glass and Glass Product Manufacturing 3272...................
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Packaging............................ 32611..................
Plastic manufacturers................ 325211.................
Electrometallurgical Ferroalloy 331112.................
Product Manufacturing.
Recycling Services for Degreasing 325998.................
Solvents Manufacturing.
Solvent Dyes Manufacturing........... 325132.................
Solvents Made in Petroleum Refineries 324110.................
Automotive Repair and Replacement 811111.................
Shops.
Recyclable Material Wholesalers...... 423930.................
Engineered Wood Members Manufacturing 321213.................
All Other Miscellaneous Chemical 325998 ................
Product and Preparation
Manufacturing.
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* NAICS = North American Industrial Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be impacted by this
action. This table lists examples of the types of entities of which EPA
is aware that could potentially be affected by this action. Other types
of entities not listed could also be affected. To determine whether
your facility, company, business, organization, etc., is affected by
this action, you should examine the applicability criteria in this
rule. If you have any questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding section: FOR FURTHER INFORMATION CONTACT.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM
as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
the procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date, and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Make sure to submit your comments by the comment period
deadline identified.
3. Docket Copying Costs. Many documents are available only in the
original and, therefore, must be photocopied. Patrons are allowed 100
free photocopies. Thereafter, they are charged 15 cents per page. When
necessary, an invoice indicating how many copies were made, the cost of
the order, and where to send a check will be issued to the patron.
Documents also are available on microfilm. The EPA/DC staff assist
patrons locate the needed documents and operate the microfilm machines.
The billing fee for printing microfilm documents is the same as for
photocopying documents.
Patrons who are outside of the metropolitan Washington, DC, area
can request documents by telephone. The photocopying and microfilming
fee is the same as for walk-in patrons. If an invoice is necessary,
EPA/DC staff can mail one with the order.
Preamble Outline
I. Statutory Authority
II. List of Abbreviations and Acronyms
III. Introduction
IV. Background
A. What Is the History of CISWI, CISWI Definitions, and Boiler
Rulemakings?
B. Why Is the Court's Decision Affecting the CAA Rules Relevant
to RCRA?
C. What Do Sections 112 and 129 of the CAA Require?
V. Use of Secondary Materials
A. Introduction
B. Secondary Materials Use and Benefits
VI. History of the Definition of Solid Waste
A. Statutory Definition of Solid Waste
B. Case Law on Definition of Solid Waste
C. The Concept of Legitimacy
VII. ANPRM Discussion, Summary of the Proposed Approach, Comments
Received on the ANPRM, and Rationale for and Detailed Description of
the Proposed Rule
A. Summary of the ANPRM Approach
1. Traditional Fuels
2. Guiding Principles Used To Determine if Secondary Materials
Used in Combustion Units Are Solid Wastes
3. Secondary Materials Used as Legitimate ``Alternative'' Fuels
That Have Not Been Previously Discarded
4. Secondary Materials Used as Legitimate ``Alternative'' Fuels
Resulting From the Processing of Discarded Secondary Materials
5. Secondary Materials Used as Legitimate Ingredients
6. Hazardous Secondary Materials That May Be Excluded From the
Definition of Solid Waste Under RCRA Subtitle C Because They Are
More Like Commodities Than Wastes
7. Additional Areas for Comment in the ANPRM
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a. Fuels or Materials That Have Been Discarded That Are
Generally Considered To Be Solid Wastes
b. Other Approaches for Determining Whether Secondary Materials
Are Fuels and Not Solid Wastes
c. Materials for Which State Beneficial Use Determinations Have
Been Made
d. Biofuels
B. Summary of the Proposed Approach
1. Changes From the ANPRM Approach
2. General Proposed Approach
3. Legitimacy Criteria
4. Traditional Fuels
5. Circumstances Under Which a Non-Hazardous Secondary Material
Would Not Be Considered a Solid Waste
6. Petition Process
C. What Were the Major Comments on the ANPRM?
1. Comments From State Agencies
2. Meaning of Discard
3. General Approach
4. Level of Processing Needed to Produce a Non-Waste Product
From Discarded Waste Material
5. Comments on Specific Materials Used as Fuels
a. Traditional Fuels
b. Biomass
c. Used Tires
d. Used Oil
e. Coal Refuse/Coal Combustion Residuals
f. Sewage Sludge
6. Comments on Specific Materials Used as Ingredients
a. Cement Kiln Dust
b. Coal Combustion Residuals
c. Foundry Sand
d. Blast Furnace Slag/Steel Slag
7. Legitimacy Criteria
a. General
b. Fuels or Ingredients Being Managed as Valuable Commodities
c. Fuels Must Have Meaningful Heating Value
d. Fuel/Ingredient Contaminant Levels
e. Ingredients Must Provide Useful Contribution
f. Ingredients Must Produce a Valuable Product
8. De Minimis Concept
D. Rationale for, and Detailed Description of, Proposed Approach
1. Non-Hazardous Secondary Materials Used as Fuel Within the
Control of the Generator
a. Scope and Applicability
b. Restrictions and Requirements
2. Non-Hazardous Secondary Materials Used as Fuel Outside the
Control of the Generator
3. Non-Hazardous Secondary Materials Used as Ingredients in
Combustion Units
4. Non-Hazardous Secondary Materials Processed Into Non-Waste
Fuel/Ingredient Products
a. Proposed Definition of Processing
b. Rationale for Processing Discarded Material Into Non-Waste
Product
c. Examples of Adequate Processing
d. Examples of Minimal Processing That Would Not Meet Proposed
Definition of Processing
e. Alternative Approach for Addressing Non-Hazardous Secondary
Materials That Are Processed Into Non-Waste Fuels or Ingredients
5. Non-Waste Determination Process
6. Legitimacy Criteria
a. Legitimacy Criteria for Fuels
b. Legitimacy Criteria for Ingredients
E. Alternative Approach
F. Effect of Today's Proposal on Other Programs
1. Clean Air Act
2. Renewable Energy
3. Subtitle C Hazardous Waste Program
VIII. State Authority
A. Applicability of State Solid Waste Definitions and Beneficial
Use Determinations
B. State Adoption of the Rulemaking
IX. Cost and Benefits of the Proposed Rule
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Usage
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Statutory Authority
The U.S. Environmental Protection Agency (EPA) is promulgating
these regulations under the authority of sections 2002(a)(1) and
1004(27) of the Resource Conservation and Recovery Act (RCRA), as
amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the
CAA directs EPA to establish standards for Commercial and Industrial
Solid Waste Incinerators (CISWI), which burn solid waste (section
129(g)(6) of the Clean Air Act (CAA), 42 U.S.C. 7429). Section
129(g)(6) provides that the term, solid waste, is to be established by
EPA under RCRA. Section 2002(a)(1) of RCRA authorizes the Agency to
promulgate regulations as are necessary to carry out its functions
under the Act. The statutory definition of ``solid waste'' is provided
in RCRA section 1004(27).
II. List of Abbreviations and Acronyms
ANPRM Advanced Notice of Proposed Rulemaking
ASME American Society of Mechanical Engineers
Btu British Thermal Unit
CAA Clean Air Act
CAFO Concentrated Animal Feeding Operations
CCA Chromated Copper Arsenate
CCR Coal Combustion Residuals
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incinerator
CKD Cement Kiln Dust
CWA Clean Water Act
DSE Domestic Sewage Exemption
DSW Definition of Solid Waste
EG Emission Guidelines
EGU Electric Utility Steam Generating Unit
EPA U.S. Environmental Protection Agency
GACT Generally Available Control Technology
GHG Greenhouse Gas
HAP Hazardous Air Pollutant
IWI Institutional Waste Incinerator
LCA Life Cycle Analysis
MACT Maximum Achievable Control Technology
NESHAP National Emission Standards for Hazardous Air Pollutants
NSPS New Source Performance Standards
OSWI Other Solid Waste Incinerator
PC Portland Cement
PIC Product of Incomplete Combustion
POTW Publicly Owned Treatment Works
PVC Polyvinyl Chloride
RCRA Resource Conservation and Recovery Act
SWDA Solid Waste Disposal Act
TDF Tire Derived Fuel
VSMWC Very Small Municipal Waste Combustor
III. Introduction
In 1990, Congress added section 129 to the CAA to address emissions
from solid waste incinerators. CAA section 129 directs EPA to
promulgate emission standards for categories of ``solid waste
incineration units.'' 42 U.S.C. 7429(a)(1). The term ``solid waste
incineration unit'' is defined, in pertinent part, to mean ``a distinct
operating unit of any facility which combusts any solid waste material
from commercial or industrial establishments * * *'' Id. at Sec.
7429(g)(1). The CAA specifically excludes the following types of units
from the definition of ``solid waste incineration unit'': (1)
Incinerators or other units required to have a permit under section
3005 of RCRA; (2) material recovery facilities (including primary and
secondary smelters) which combust waste for the primary purpose of
recovering metals; (3) qualifying small power production facilities, as
defined in section 3(17)(C) of the Federal Power Act, or qualifying
cogeneration facilities, as defined in section 3(18)(B) of the Federal
Power Act, which burn homogeneous waste (such as units which burn tires
or used oil, but not including refuse-derived fuel) for the production
of electric energy or in the case of qualifying cogeneration facilities
which burn homogeneous waste for the production of electric energy or
steam or forms of useful energy (such as heat) which are used for
industrial, commercial, heating
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or cooling purposes, or (4) air curtain incinerators, provided that
such incinerators only burn wood wastes, yard wastes and clean lumber
and that such air curtain incinerators comply with the opacity
limitations to be established by the Administrator by rule. Id.
CAA section 129 further states that the term ``solid waste'' shall
have the meaning ``established by the Administrator pursuant to the
Solid Waste Disposal Act'' Id. at 7429(g)(6). CAA section 129 refers to
the Solid Waste Disposal Act (SWDA). However, this act, as amended, is
commonly referred to as RCRA. Thus, the term ``RCRA'' is used in place
of SWDA in this Notice. RCRA in turn defines the term ``solid waste''
to mean ``* * * any garbage, refuse, sludge from a waste treatment
plant, water supply treatment plant, or air pollution control facility
and other discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial, commercial,
mining, and agricultural operations, and from community activities, * *
*'' Section 1004 (27).
IV. Background
The discussion below was previously included in the Advanced Notice
of Proposed Rulemaking (ANPRM). However, because it is also pertinent
to the development of today's proposal, it also is included here for
the benefit of the reader. The entire record for the ANPRM is included
in the record for this rulemaking. To the extent there are any
inconsistencies or differences between the ANPRM and this proposal, the
statements in this proposal apply.
A. What is the history of CISWI, CISWI definitions, and boiler
rulemakings?
EPA promulgated a final rule setting forth performance emissions
standards for Commercial and Industrial Solid Waste Incineration Units
(referred to as the ``CISWI Rule''). 65 FR 75338 (December 1, 2000).
Under CAA section 129, the emissions standards for new sources must be
at least as stringent as the emissions control achieved in practice by
the best-controlled similar source. For existing sources, the emissions
standards must be at least as stringent as the average emissions
limitation achieved by the best-performing 12 percent of units in the
category. CAA section 129 (a)(2). This level of stringency is commonly
referred to as the maximum achievable control technology (MACT)
``floor.'' EPA must also consider more stringent ``beyond-the-floor''
emissions controls, taking into account cost, energy, and non-air
quality environmental impacts. The Administrator may also distinguish
among classes, types (including mass-burn, refuse-derived fuel, modular
and other types of units), and sizes of units within a category in
establishing such standards. Id. at 7429(a)(2).
The CISWI Rule established emission limitations for new and
existing CISWI units for the following pollutants: Cadmium, carbon
monoxide, dioxins/furans, hydrogen chloride, lead, mercury, oxides of
nitrogen (NOX), particulate matter (PM), sulfur dioxide
(SO2), and opacity. In addition, the rule established
certain monitoring and operator training and certification
requirements. See 65 FR 75338 for a more detailed discussion of the
CISWI Rule.
The CISWI Rule was challenged in Sierra Club v. EPA (No. 01-1048)
(DC Cir.). After promulgation of the CISWI Rule, the DC Circuit issued
its decision in a challenge to EPA's MACT standards for the cement kiln
industry. Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (DC Cir.
2001) (``Cement Kiln''). As a result of the courts decision in Cement
Kiln, EPA requested a voluntary remand of the CISWI Rule, in order to
address concerns related to the issues that were raised by the court in
Cement Kiln. The court granted EPA's request for a voluntary remand and
remanded, without vacatur, the CISWI Rule back to EPA. Because the
CISWI Rule was not vacated, its requirements remain in effect. See
Sierra Club. v. EPA, 374 F. Supp.2d 30, 32-33 (D.D.C. 2005).
On September 22, 2005, EPA issued revised definitions of ``solid
waste,'' ``commercial or industrial solid waste incineration unit,''
and ``commercial or industrial waste'' (the ``CISWI Definitions
Rule''). See 70 FR 55568. In the CISWI Definitions Rule, EPA defined
``commercial and industrial solid waste'' to exclude solid waste that
is combusted at a facility in a combustion unit whose design provides
for energy recovery or which operates with energy recovery. Therefore,
a unit combusting solid waste with energy recovery was not considered a
CISWI unit.
The CISWI Definitions Rule was vacated by the DC Circuit in NRDC v.
EPA (489 F.3d 1250 (DC Cir. 2007)). The court stated that the statute
unambiguously requires any unit that combusts ``any solid waste
material at all''--regardless of whether the material is being burned
for energy recovery--to be regulated as a ``solid waste incineration
unit.'' Id. at 1260. In the same decision, the court also vacated and
remanded EPA's emissions standards for commercial, industrial, and
institutional major source boilers and process heaters (the Boiler MACT
Rule), concluding that the universe of sources subject to that rule
would be much smaller if it did not include units that combust solid
waste for the purposes of energy recovery.
B. Why is the court's decision affecting the CAA rules relevant to
RCRA?
In responding to the court's vacatur and remand of the CISWI
Definitions Rule and the Boiler MACT Rule, EPA is establishing, under
RCRA, which non-hazardous secondary materials \1\ are ``solid waste.''
This is necessary because, under the court's decision, any unit
combusting any ``solid waste'' at all must be regulated as a ``solid
waste incineration unit,'' regardless of the function of the combustion
device. If a non-hazardous secondary material (also referred to as
secondary materials in this notice) is not a ``solid waste'' under
RCRA, then a unit combusting that material must be regulated pursuant
to CAA section 112 if it is a source of HAP. Alternatively, if such
material is a ``solid waste'' under RCRA, then a unit combusting that
material must be regulated under CAA section 129.
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\1\ A secondary material is any material that is not the primary
product of a manufacturing or commercial process, and can include
post-consumer material, post-industrial material, and scrap. Many
types of secondary materials have Btu or material value, and can be
reclaimed or reused in industrial processes. For purposes of this
notice, the term secondary materials include only non-hazardous
secondary materials. See also American Mining Congress v. EPA, 824
F.2d 1177 (DC Cir. 1987) in which the U.S. Court of Appeals for the
District of Columbia Circuit discussed secondary materials.
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C. What do CAA Sections 112 and 129 require?
CAA section 112 requires EPA to promulgate regulations to control
emissions of 187 \2\ hazardous air pollutants (HAP) from sources in
each source category listed by EPA under section 112(c). The statute
requires the regulations for major sources \3\ to reflect the maximum
degree of reduction in emissions of HAP that is achievable taking into
consideration the cost of achieving the emission reduction, any non-air
quality health and environmental impacts, and energy requirements. For
existing sources, the emissions standards must be at least as stringent
as the average emissions limitation achieved by the best-
[[Page 31849]]
performing 12 percent of units in the category or subcategory for
categories and subcategories with at least 30 sources, and by the best-
performing five sources in the category or subcategory for categories
and subcategories with fewer than 30 sources. For new sources, the
emissions standard must be at least as stringent as the emissions
limitation achieved by the best-performing similar source. CAA section
112(d)(3). This level of stringency is commonly referred to as the MACT
``floor.''
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\2\ EPA has delisted 3 of the 190 HAP initially listed in
section 112(b)(1): Methyl ethyl ketone, glycol ethers, and
caprolactam.
\3\ A ``major source'' is any stationary source that emits or
has the potential to emit considering controls, in the aggregate, 10
tons per year or more of any HAP or 25 tons per year or more of any
combination of HAP. CAA section 112(a)(1).
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Like the CAA section 112 standards, the CAA section 129 standards
are based on a MACT floor. Also, as with the section 112 standards,
above-the-floor standards may be established where EPA determines it is
``achievable'' taking into account costs and other factors. Although
CAA section 129 ``establishes emission requirements virtually identical
to section [112's],'' Nat'l Lime Ass'n v. EPA, 233 F.3d at 631, the two
sections differ in three primary respects. First, CAA section 112
requires that MACT standards be established for major sources of HAP
emissions, but provides discretionary authority to establish standards
based on ``generally available control technology'' (GACT) for area
sources of HAP emissions.\4\ On the other hand, under CAA section 129,
EPA must issue MACT standards for all solid waste incineration units in
a given category regardless of size. Second, CAA section 129 requires
that numeric emission limitations must be established for the following
nine pollutants, plus opacity (as appropriate): cadmium, carbon
monoxide, dioxins/furans, hydrogen chloride, lead, mercury, NOx,
particulate matter (total and fine), and SO2.\5\ These nine
pollutants represent the minimum that must be regulated; EPA has the
discretion to establish standards for other pollutants as well. Third,
CAA section 129 includes specific requirements for operator training,
pre-construction site assessments, and monitoring that are not included
in CAA section 112. See CAA section 129(a)(3), (c) and (d). Rather, CAA
section 112's implicit authority and CAA sections 113 and 114's
explicit authority is relied upon to include provisions as necessary to
assure compliance with and enforcement of the section 112 emission
limitations. It is important to note that CAA section 129(h)(2)
specifies that no solid waste incineration unit subject to the
performance standards under CAA sections 111 and 129 shall be subject
to the standards under CAA section 112(d).
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\4\ An ``area source'' is any stationary source of HAP that is
not a major source. CAA section 112(a)(2). Area sources may be
regulated under CAA section 112(d)(2) standards if the Administrator
finds that the sources ``presen[t] a threat of adverse effects to
human health or the environment (by such sources individually or in
the aggregate) warranting regulation under this section.'' Section
112(c)(3). Certain categories of area sources must be regulated in
accordance with section 112(c)(3) and (k)(3)(B).
\5\ Of these nine pollutants, cadmium, dioxins/furans, hydrogen
chloride, lead, and mercury are also regulated HAP pursuant to CAA
section 112, and particulate matter and carbon monoxide are commonly
used as surrogate emission standards to control specific CAA section
112 HAP (e.g., CAA section 112 HAP metal and organic emissions).
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V. Use of Secondary Materials
A. Introduction
The U.S. is pursuing an approach to materials management that
employs the concepts of life cycle assessment \6\ and full cost
accounting.\7\ Within the context of RCRA,\8\ this proposal aims to
facilitate materials management to the extent allowed by the statute,
through the establishment of a regulatory framework that guides the
beneficial use of various secondary materials, while ensuring that such
use is protective of human health and the environment. EPA, in
conjunction with the states, seeks to further facilitate this objective
through research, analysis, incentives, and communication. The Agency
recognizes that secondary materials are widely used today as raw
materials, as products, and as fuels and/or ingredients in industrial
processes. We expect these uses will continue and expand in future
years as effective materials management becomes more critical to a
sustainable society. The use of materials from a variety of non-
traditional sources, including the use of energy-containing secondary
materials, is expected to play an important role in future resource
conservation efforts.
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\6\ The terms ``life cycle analysis'' and ``life cycle
assessment'' are commonly used interchangeably. Life cycle
assessment is a system-wide analytical technique for assessing the
environmental (and sometimes economic) effects of a product,
process, or activity across all life stages.
\7\ Full cost accounting is an accounting system that
incorporates economic, environmental, health, and social costs of a
product, action, or decision.
\8\ RCRA Section 6901(c)--Materials: The Congress finds with
respect to materials, that--(1) Millions of tons of recoverable
material which could be used are needlessly buried each year; (2)
methods are available to separate usable materials from solid waste;
and (3) the recovery and conservation of such materials can reduce
the dependence of the United States on foreign resources and reduce
the deficit in its balance of payments.
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The use of secondary materials as alternative fuels and/or
ingredients in manufacturing processes using combustion not only
recovers valuable resources, it is known to contribute to emission
reductions. For example, both greenhouse gas (GHG) and particulate
matter (PM) emissions have been reduced as a co-benefit of the use of
secondary materials.\9\ The use of secondary materials, such as use as
a fuel in industrial processes may also result in other benefits. These
may include reduced fuel imports, reducing negative environmental
impacts caused by previous dumping (e.g., tires), and reduced methane
gas generation from landfills.
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\9\ For example, the GHG rate associated with the combustion of
scrap tires is approximately 0.081 MTCO2E per MMBtu of
scrap tires combusted, while the GHG emissions rate for coal is
approximately 0.094 MTCO2E per MMBtu. Combined with the
avoided extraction and processing emissions 0.006 MTCO2E/
MMBtu for coal, the total avoided GHG is 0.019 MTCO2E per
MMBtu. Substituting tire-derived fuel for coal would also avoid an
estimated 0.246 Lbs/MMBtu of PM associated with extraction and
processing of the coal. Please see the Materials Characterization
Papers in the docket for further details on these estimates, and
other estimates of avoided emissions associated with burning tires
and other secondary materials as fuel.
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Secondary materials may, in most cases, be more appropriately
defined as ``by-products,'' \10\ reflecting their inherent resource
recovery value in the generation and production of heat, energy, and/or
marketable products. These secondary materials can provide micro (firm
level) and macroeconomic benefits when legitimately used as an
effective substitute for, or supplement to primary materials. Economic
efficiency can be improved with the use of secondary materials, when
substituted for increasingly scarce primary materials, because the use
of such materials often results in an equivalent level of output at
lower overall resource use, or in turn, more output could be generated
using the same amount of resource inputs. When this occurs, monetary
savings resulting from reduced resources would, theoretically, be
applied to a higher and better use in the economy. This helps advance
economic growth as a result of improved industrial efficiency,\11\
which, in turn, helps move the country toward material sustainability
and energy self sufficiency, while protecting human health and the
environment.
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\10\ For purposes of this action, we define by-product as a
secondary or incidental material derived from the primary use or
production process that has value in the marketplace, or value to
the user.
\11\ Opportunities for improved economic efficiency are
recognized through the Action Statement of the U.S. Business Council
For Sustainable Development: ``Promoting Sustainable Development by
Creating Value Through Action Establishing Networks and
Partnerships, and Providing a Voice for Industry.''
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B. Secondary Materials Use and Benefits
A wide and diverse range of secondary materials are currently used
as fuels and/or ingredients in
[[Page 31850]]
manufacturing or service processes. Based on our research conducted in
support of the January 2, 2009 ANPRM, we identified eight non-hazardous
secondary material fuels or fuel groups and six non-hazardous
ingredients, or ingredient groups. The eight fuel source materials
were: The biomass group (pulp and paper residuals, forest derived
biomass, agricultural residues, food scraps, animal manure, and gaseous
fuels); construction and demolition materials (building related,
disaster debris, and land clearing debris); scrap tires; scrap
plastics; spent solvents; coal refuse; waste water treatment sludge,
and used oil. The six secondary material ingredients were: blast
furnace slag; cement kiln dust (CKD); the coal combustion product group
(fly ash, bottom ash, and boiler slag); foundry sand; silica fume; and
secondary glass material. The ANPRM discussed and described these key
secondary materials. In addition, we developed comprehensive Materials
Characterization Papers for each of these fuel and ingredient
materials. These papers were included in the docket for the ANPRM,
which as we note above is incorporated into the docket for this
proposed rule.
Based on our review of the public comments submitted in response to
the ANPRM, plus further research, we have identified three additional
secondary materials not addressed in the ANPRM. These additional
secondary materials are auto shredder residue, purification process
byproducts, and resinated wood products. We have prepared Materials
Characterization Papers for these newly identified secondary materials,
which are also included in the docket for today's proposed rule. In
addition, we have updated and revised nearly all \12\ of the existing
Materials Characterization Papers to incorporate commenter information,
as appropriate, plus relevant information derived from the 2008
combustion survey database (OMB Control Number 2060-0616). We believe
that our newly defined list of secondary fuels and ingredients accounts
for the vast majority of all secondary materials used in combustion
processes in the U.S. However, as part of this proposal, we again
solicit comment on these and any other non-hazardous secondary
materials potentially used as fuels and/or ingredients. Comments
containing detailed, quality controlled data are welcome and will be
very useful as we move forward in this rulemaking effort. Information
on the annual quantity of material generated, used, and stored; major
uses (i.e., fuel v. non-fuel); management practices; major markets;
processing requirements; contaminants; and life cycle inventory data
would be most helpful.
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\12\ The materials characterization paper on Silica Fume was the
only paper not requiring updating.
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VI. History of the Definition of Solid Waste
A. Statutory Definition of Solid Waste
RCRA defines ``solid waste'' as ``* * *any garbage, refuse, sludge
from a waste treatment plant, water supply treatment plant, or air
pollution control facility and other discarded material * * * resulting
from industrial, commercial, mining, and agricultural operations, and
from community activities * * *'' (RCRA section 1004 (27) (emphasis
added)). The key concept is that of ``discard'' and, in fact, this
definition turns on the meaning of the phrase, ``other discarded
material,'' since this term encompasses all other examples provided in
the definition.
The ANPRM provides a complete discussion on the concept of discard,
as well as a description of the solid waste program under RCRA subtitle
D, and the hazardous waste program under RCRA subtitle C. We refer the
reader to the ANPRM for a detailed discussion on these subjects
regarding the definition of solid waste. The ANPRM also includes a
detailed discussion on the case law on the definition of solid waste,
which we repeat below, and on the concept of legitimacy, or legitimate
recycling. That discussion is relevant to this proposal and is
incorporated into this rulemaking. We are repeating parts of the
discussion on legitimacy below to the extent it helps in understanding
this proposal.
B. Case Law on Definition of Solid Waste
Partly because the interpretation of the definition of solid waste
is the foundation of the hazardous waste regulatory program, there has
been a great deal of litigation over the meaning of ``solid waste''
under RCRA subtitle C. From these cases, a few key principles emerge
which guide our thinking on the definition of solid waste.
First, the ordinary plain-English meaning of the term, ``discard''
controls when determining whether a material is a solid waste. See
American Mining Congress v. EPA, 824 F.2d 1177 (DC Cir. 1987) (``AMC
I''). The ordinary plain-English meaning of the term discarded means
``disposed of,'' ``thrown away,'' or ``abandoned.'' The DC Circuit in
AMC I specifically rejected a more expansive meaning for discard that
would encompass any materials ``no longer useful in their original
capacity'' even if they were not destined for disposal. 824 F.2d at
1185-87. The Court further held that the term ``discarded materials''
could not include materials ``* * * destined for beneficial reuse or
recycling in a continuous process by the generating industry itself.
(824 F.2d at 1190).
Subsequent to AMC I, the DC Circuit discussed the meaning of
discard in particular cases. In American Petroleum Institute v. EPA,
906 F.2d 729 (DC Cir. 1990) (``API I''), the court rejected EPA's
decision not to regulate recycled air pollution control equipment slag
based on an Agency determination that waste ``ceases to be a `solid
waste' when it arrives at a metals reclamation facility because at that
point it is no longer `discarded material.' '' 906 F.2d at 740.
Instead, the court held that the materials were part of a mandatory
waste treatment plan for hazardous wastes prescribed by EPA and
continued to be wastes even if recycled. 906 F.2d at 741. Further, a
material is a solid waste regardless of whether it ``may'' be reused at
some time in the future. American Mining Congress v. EPA, 907 F.2d 1179
(DC Cir. 1990) (``AMC II'').
One of the more important holdings of a number of court decisions
is that simply because a waste has, or may have, value does not mean
the material loses its status as a solid waste. See API I, 906 F.2d at
741 n.16; United States v. ILCO Inc., 996 F.2d 1126, 1131-32 (11th Cir.
1993); Owen Steel v. Browner, 37 F.3d 146, 150 (4th Cir. 1994). ILCO
and Owen Steel, however, recognize that products made from wastes are,
themselves, products and not wastes.
The DC Circuit's decision in Association of Battery Recyclers v.
EPA, 208 F.3d 1047 (DC Cir. 2000) (``ABR'') reiterated the concepts
discussed in the previous cases. The Court held that it had already
resolved the issue presented in ABR in its opinion in AMC I, where it
found that ``* * * Congress unambiguously expressed its intent that
`solid waste' (and therefore EPA's regulatory authority) be limited to
materials that are `discarded' by virtue of being disposed of,
abandoned, or thrown away'' (208 F.2d at 1051). It repeated that
materials reused within an ongoing industrial process are neither
disposed of nor abandoned (208 F.3d at 1051-52). The court also
explained that the intervening API I and AMC II decisions had not
narrowed the holding in AMC I (208 F.3d at 1054-1056).
Notably, the Court in ABR did not hold that storage before
reclamation automatically makes materials ``discarded.'' Rather, it
held that ``* * * at least some of the secondary material EPA seeks to
regulate as solid waste (in
[[Page 31851]]
the mineral processing rule) is destined for reuse as part of a
continuous industrial process and thus is not abandoned or thrown
away'' (208 F.3d at 1056). In this regard, the court criticized all
parties in the case--industry as well as EPA--because they ``presented
this aspect of the case in broad abstraction, providing little detail
about the many processes throughout the industry that generate residual
material of the sort EPA is attempting to regulate * * *. '' (Ibid).
American Petroleum Institute v. EPA, 216 F.3d 50, 55 (DC Cir. 2000)
(``API II''), decided shortly after ABR and considered by the court at
the same time, provides further guidance for defining solid waste, but
in the context of two specific waste streams in the petroleum refining
industry. The court overturned EPA's determination that certain
recycled oil bearing wastewaters are wastes (216 F.3d at 55-58) and
upheld conditions imposed by the Agency in excluding petrochemical
recovered oil from the definition of solid waste (216 F.3d at 58-59).
In the case of oil-bearing wastewaters, EPA had determined that the
first phase of treatment, primary treatment, results in a waste being
created. 216 F.3d at 55. The court overturned this decision and
remanded it to EPA for a better explanation, neither accepting EPA's
view nor the contrary industry view. The court noted that the ultimate
determination that had to be made was whether primary treatment is
simply a step in the act of discarding or the last step in a production
process before discard. 213 F.3d at 57. In particular, the court
rejected EPA's argument that primary treatment was required by
regulation, instead stating that the Agency needed to ``set forth why
it has concluded that the compliance motivation predominates over the
reclamation motivation'' and ``why that conclusion, even if validly
reached, compels the further conclusion that the wastewater has been
discarded.'' 213 F.3d at 58.
The court also considered whether material is discarded in Safe
Food and Fertilizer v. EPA, 350 F.3d 1263 (DC Cir. 2003) (``Safe
Food''). In that case, among other things, the court rejected the
argument that, as a matter of plain meaning, recycled material destined
for immediate reuse within an ongoing industrial process is never
considered ``discarded,'' whereas material that is transferred to
another firm or industry for subsequent recycling must always be solid
wastes. 350 F.3d at 1268. Instead, the court evaluated ``whether the
agency's interpretation of * * * `discarded' * * * is, reasonable and
consistent with the statutory purpose* * * .'' Id. Thus, EPA has the
discretion to determine that a material is not a solid waste, even if
it is transferred between industries.
We also note that the Ninth Circuit has specifically found that
non-hazardous secondary materials may, under certain circumstances, be
burned and not constitute a solid waste under RCRA. See Safe Air For
Everyone v. Waynemeyer (``Safe Air''), 373 F.3d 1035 (9th Cir., 2004)
(Kentucky bluegrass stubble may be burned to return nutrients to the
soil and not be a solid waste).
C. The Concept of Legitimacy
An important element under the RCRA subtitle C definition of solid
waste (and an important element of today's proposal) is the concept of
legitimate use and recycling. Under RCRA subtitle C, some hazardous
secondary materials that would otherwise be subject to regulation under
RCRA's ``cradle to grave'' system are not considered solid wastes if
they are ``legitimately recycled'' or legitimately used as an
ingredient or substitute for a commercial product. The principal
reasoning behind this construct is that use or recycling of such
materials often closely resembles normal industrial production, rather
than waste management. However, since there can be considerable
economic incentive to manage recyclable materials outside of the RCRA
hazardous waste regulatory system, there is a clear potential for and
historical evidence of some handlers claiming they are recycling, when
in fact they are conducting waste treatment and/or disposal in the
guise of recycling. EPA considers such ``sham'' recycling to be, in
fact, discard and such secondary materials being sham recycled are
solid wastes.
To guard against hazardous secondary materials being discarded in
the guise of recycling, EPA has long articulated the need to
distinguish between ``legitimate'' (i.e., true) recycling or other use
and ``sham'' (i.e., fake) recycling; see the preamble to the 1985
hazardous waste regulations that established the definition of solid
waste under RCRA subtitle C (50 FR 638; January 4, 1985). A similar
discussion that addressed legitimacy as it pertains to burning
hazardous secondary materials for energy recovery (considered a form of
recycling under RCRA subtitle C) was presented in the January 9, 1988
proposed amendments to the definition of solid waste (53 FR 522). Then
on April 26, 1989, the Office of Solid Waste \13\ issued a memorandum
that consolidated the various preamble and other statements concerning
legitimate recycling into a list of questions to be considered in
evaluating the legitimacy of hazardous secondary materials recycling
(OSWER directive 9441.1989(19)). This memorandum (known to many as the
``Lowrance Memo,'' a copy of which is included in the Docket to today's
preamble) has been a primary source of information for the regulated
community and for overseeing agencies in distinguishing between
legitimate and sham recycling.
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\13\ On January 9, 2009, the Office of Solid Waste was renamed
the Office of Resource Conservation and Recovery.
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On October 30, 2008, EPA finalized several exclusions from the
definition of solid waste for hazardous secondary materials being
reclaimed and a non-waste determination process for persons to receive
a formal determination that their hazardous secondary materials are not
solid wastes when legitimately reclaimed.\14\ In that action, EPA
codified in 40 CFR 260.43 the requirement that materials be
legitimately recycled as a condition for the exclusion for hazardous
secondary materials that are legitimately reclaimed under the control
of the generator (40 CFR 261.2(a)(2)(ii) and 40 CFR 261.4(a)(23)) and
as a condition of the exclusion for hazardous secondary materials that
are transferred for the purpose of legitimate reclamation (40 CFR
261.4(a)(24) and 40 CFR 261.4(a)(25)). As part of that final rule, EPA
also codified a legitimate recycling provision specifically as a
requirement or condition of these exclusions and the non-waste
determination process (40 CFR 260.34).
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\14\ See 73 FR 64668.
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Although this proposed rule does not address the Agency's hazardous
waste regulations, EPA believes the concept of legitimacy is an
important one in determining when a secondary material is genuinely
recycled and not discarded under the guise of recycling. Therefore, the
Agency is including the following discussion in today's preamble to
provide the context in which EPA has integrated the concept of
legitimacy into the recently promulgated hazardous waste exclusions
from the definition of solid waste.\15\
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\15\ The hazardous waste exclusions from the definition of solid
waste became effective on December 29, 2008. On January 29, 2009,
the Sierra Club submitted a petition under RCRA section 7004(a), 42
U.S.C. 6974(a), to the Administrator of EPA requesting that the
Agency repeal the revisions to the definition of solid waste rule
and stay the implementation of the rule. In addition, the Sierra
Club and the American Petroleum Institute have filed petitions for
judicial review of a rule with the United States Court Of Appeals
for The District Of Columbia Circuit. One of the issues that EPA
will consider is the definition of legitimate recycling. However,
until that occurs, the final rule, including the definition of
legitimate recycling remains in effect until and unless EPA goes
through another rulemaking process (proposed and final) to repeal or
amend it.
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[[Page 31852]]
The legitimacy provision in the October 2008 final rule, which
applies specifically to hazardous secondary materials excluded under
the rule, has two parts. The first part includes two factors: (1) the
hazardous secondary materials being recycled must provide a useful
contribution to the recycling process or to the product or intermediate
of the recycling process, and (2) the product or intermediate produced
by the recycling process must be valuable. These two legitimacy factors
make up the core of legitimacy, and, therefore, a process that does not
conform to them cannot be a legitimate recycling process, but would be
considered sham recycling.
The second part of the legitimacy provision consists of two factors
that must be considered when determining if a particular hazardous
secondary material recycling process is legitimate for the purposes of
the exclusion. These two factors are: (1) The generator and the
recycler should manage the hazardous secondary material as a valuable
commodity, and (2) the product of the recycling process does not
contain significant concentrations of hazardous constituents that are
not in analogous products. EPA believes these two factors are important
in determining legitimacy, but has not made them factors that must be
met because the Agency is aware of situations where a legitimate
recycling process exists, but may not conform to one or both of these
two factors. In making a determination that a hazardous secondary
material is legitimately recycled, persons must evaluate all factors
and consider legitimacy as a whole. If, after careful evaluation of
these other considerations, one or both of the non-mandatory factors
are not met, then this fact may be an indication that the material is
not legitimately recycled. To evaluate the extent to which these
factors are met and in determining the legitimacy of a recycling
process that does not meet one or both of these factors, persons can
consider the protectiveness of the storage methods, exposure from
toxics in the product, the bioavailability of the toxics in the
product, and other relevant considerations.
EPA stated in the preamble to the October 2008 final rule that,
although the Agency was only codifying the legitimacy provision as part
of the new hazardous secondary materials recycling exclusions and non-
waste determination process, it was stressing that EPA retains its
long-standing policy that all recycling of hazardous secondary
materials must be legitimate and that the four legitimacy factors
codified at 40 CFR 260.43 are substantively the same as the Agency's
long-standing legitimacy policy, as stated in the 1989 Lowrance Memo
and in various definition of solid waste rulemakings.
EPA believes the same principle of ``legitimacy'' is likewise an
important element in the recycling of non-hazardous secondary
materials. That is, the concept of legitimate recycling is crucial to
determining whether a non-hazardous secondary material being recycled
is truly being recycled or is, in fact, being discarded through sham
recycling. In the January 2, 2009 ANPRM, the Agency sought comment on
the appropriate construct for determining when such non-hazardous
secondary materials are legitimately burned as a fuel or used as a
legitimate ingredient in an industrial process that involved combustion
(see Section V, 74 FR 53-9). A general discussion of the comments EPA
received follows in Section VII.C.
VII. ANPRM Discussion, Summary of the Proposed Approach, Comments
Received on the ANPRM, and Rationale for and Detailed Description of
the Proposed Rule
A. Summary of the ANPRM Approach
In the ANPRM, the Agency considered various scenarios in evaluating
the usage of secondary materials (e.g., as fuels or ingredients) and
whether these materials should be considered solid wastes under RCRA
when used in combustion devices, such that units burning these
secondary materials would be subject to regulation under CAA section
129, rather than subject to CAA section 112. Specifically, the ANPRM
identified several cases where such non-hazardous secondary materials
are not solid wastes when combusted, and thus, subject to CAA section
112. These were: (1) Traditional fuels, (2) secondary materials used as
legitimate ``alternative'' fuels that have not been previously
discarded, (3) secondary materials used as legitimate ``alternative
fuels'' resulting from the processing of discarded secondary materials,
(4) secondary materials used as legitimate ingredients, and (5)
hazardous secondary materials that may be excluded from the definition
of solid waste under RCRA subtitle C because they are more like
commodities than wastes. All other cases where non-hazardous secondary
materials are combusted would be considered ``solid wastes'' and
subject to CAA section 129.
1. Traditional Fuels
The ANPRM categorized cellulosic biomass (e.g., wood) and fossil
fuels (e.g., coal, oil, natural gas) and their derivatives (e.g.,
petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic
fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous
butane, coke oven gas) as traditional fuels that have been burned
historically as fuels and have been managed as valuable products, and
stated that they are considered unused products that have not been
discarded and therefore are not solid wastes. The ANPRM further stated
that wood collected from forest fire clearance activities and trees and
uncontaminated wood found in disaster debris would not be discarded if
managed properly and burned as a legitimate fuel, and therefore not a
solid waste.
2. Guiding Principles Used To Determine if Secondary Materials Used in
Combustion Units Are Solid Wastes
The ANPRM explained key factors in determining if alternative fuels
or ingredients are solid wastes under RCRA, including whether they have
been discarded, and if they have been discarded, whether they have been
processed to produce a fuel or ingredient product that would not be
considered a solid waste. The ANPRM further explained that the plain-
English meaning of the term discard applies to the RCRA definition of
solid waste. That is, a material is discarded if it is disposed of,
thrown away, or abandoned. Moreover, the ANPRM stated the term
``discarded materials'' could not include materials `` * * * destined
for beneficial reuse or recycling in a continuous process by the
generating industry itself,'' and that determining whether a secondary
material is used in a continuous process is important because certain
materials under consideration are produced and managed in a continuous
process within an industry (e.g., cement kiln dust that is recycled in
cement kilns). The ANPRM went on to say that even if the secondary
material is not used in a continuous process, if it is used as a
legitimate fuel or ingredient, these secondary materials are not solid
wastes if they were not previously discarded.
For alternative fuels or ingredients not to be considered
discarded, and thus not to be solid wastes, the ANPRM stated that they
must be legitimate fuels or ingredients. It then described EPA's
criteria for determining if a secondary
[[Page 31853]]
material is a legitimate fuel or ingredient. The Agency explained that
it generally considers secondary materials to be legitimate non-waste
fuels if they are handled as valuable commodities, have meaningful
heating value, and contain contaminants that are not significantly
higher in concentration than traditional fuel products. If these
criteria are not met, sham recycling may be indicated and the secondary
material might be a solid waste. Similarly, for non-hazardous secondary
materials to be considered a non-waste ingredient, the ANPRM stated
that it would generally consider secondary materials to be non-waste
ingredients if the secondary material is handled as a valuable
commodity, the secondary material provides a useful contribution, the
recycling results in a valuable product, and the product does not
contain contaminants that are significantly higher in concentration
than traditional products.
3. Secondary Materials Used as Legitimate ``Alternative'' Fuels That
Have Not Been Previously Discarded
For legitimate ``alternative'' fuels that have not been previously
discarded, the ANPRM stated that the question of what constitutes a
legitimate ``fuel'' reflects the availability of fuel materials
generally, the demand for fuel, and technology developments. Thus, in
addition to traditional fuels, the ANPRM stated that there is a
category of secondary materials that are legitimate alternative fuels;
that is, there are secondary materials that may not have been
traditionally used as fuels, but that are nonetheless legitimate fuels
today because of changes in technology and in the energy market. In
cases where these legitimate alternative fuels have not been discarded,
EPA said that it would not consider them to be solid wastes. We stated
that much of the biomass currently used as alternative fuels are not
solid waste since they have not been discarded in the first instance
and are legitimate fuel products, noting that biomass can include a
wide range of alternative fuels, and can be broken down into two
different categories--cellulosic biomass and non-cellulosic biomass.
Cellulosic biomass was described to include forest-derived biomass
(e.g., green wood, forest thinnings, clean and unadulterated bark,
sawdust, trim, and tree harvesting residuals from logging and sawmill
materials), food scraps, pulp and paper mill wood residuals (e.g., hog
fuel, such as clean and unadulterated bark, sawdust, trim screenings;
and residuals from tree harvesting), and agricultural residues (e.g.,
straw, corn husks, peanut shells, and bagasse). Non-cellulosic biomass
was described to include manures and gaseous fuels (e.g., from
landfills and manures).
The ANPRM stated that biomass, especially cellulosic biomass, has a
comparable composition to traditional fuel products due to the nature
of the plants and animals (i.e., they would not be considered to have
additional ``contaminants''). Thus, if they are managed as valuable
commodities and have meaningful heating value, they would not be
considered solid wastes.
The ANPRM also noted that tires used as tire-derived fuel (TDF),
which include whole or shredded tires, that have not been previously
discarded, are legitimate fuels if they meet the legitimacy criteria
i.e., they are handled as valuable commodities, have meaningful heating
value, and do not contain contaminants that are significantly higher in
concentration when compared to traditional fuel products (see Materials
Characterization Paper on Scrap Tires in the docket for today's rule
for a complete discussion on contaminants in TDF [EPA-HQ-RCRA-2008-
0329]). We noted that in many cases, used tires that are collected
pursuant to state tire oversight programs (e.g., used tires from tire
dealerships that are sent to used tire processing facilities) are
handled as valuable commodities, and, therefore, have not been
abandoned, disposed of, or thrown away. We noted that because states
typically regulate these programs under their state solid waste
authorities, it is not the Agency's intent to undercut the state's
authority in this area. We requested comment on whether tires collected
pursuant to state tire oversight programs have been discarded, and also
requested comment on whether an EPA designation specifying that used
tires, for example, managed pursuant to state collection programs are
not solid wastes, would adversely impact a state's ability to manage
such a program. EPA notes that it is considering a change regarding the
issue of tires collected under state programs, which is discussed later
in the preamble. In particular, the Agency proposes that tires
collected under these recycling programs are discarded and are solid
wastes. EPA proposes this formulation for tires, but is asking for
further comment on the ANPRM formulation that secondary material
collected and sent for legitimate use as fuels are not discarded and
are not solid wastes. For more discussion, see sections VII.C.5.c. and
VII.D.2 of today's proposal. EPA may issue a final rule containing
either set of provisions depending on information received in the
comment period and other information available to the Agency.
The ANPRM described other non-traditional alternative fuels in use
today that we are evaluating to determine whether they have been
discarded and whether they are legitimate alternative fuels (e.g.,
construction and demolition materials,\16\ scrap plastics, non-
hazardous non-halogenated solvents and lubricants, and wastewater
treatment sludge). The ANPRM then described secondary materials we
considered to be questionable as to whether they are legitimate fuels
because they lack adequate heating value (wet biomass), or because they
may contain contaminants that are significantly higher \17\ in
concentration than those in traditional fuel products to the degree
that sham recycling is indicated. The materials that were described in
the ANPRM that could fall into this category include polyvinyl chloride
(PVC), halogenated plastics, chromated copper arsenate (CCA) lumber,
creosote lumber, copper-based treated lumber, lead-based treated
lumber, and secondary mill residues, such as board, trim and breakage
from the manufacture of reconstituted wood/panel products.
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\16\ EPA is completing a study evaluating the use of a mobile
unit for the combustion of vegetative and construction and
demolition debris generated from natural disasters. This study
includes monitoring of the source and ambient emissions, and a
screening risk assessment. Results are projected to be available
later in 2010. Extreme care needs to be taken to exclude specific
materials in C&D debris, especially regulated-asbestos containing
materials (RACM). Additionally, the wiring, plastics, and painted
surfaces may contribute to emissions of concern and might not equate
to traditional fuels. Upon publication, this study will be available
at EPA's National Risk Management Research Laboratory (NRMRL)
publications Web site at http://www.epa.gov/nrmrl/publications.html.
\17\ In determining whether the concentration of contaminants in
secondary materials is ``significantly higher,'' the Agency stated
in the ANPRM that it could use a qualitative evaluation of the
potential human health and environmental risks posed. A contaminant
concentration could be elevated without posing unacceptable risk,
and therefore may not be considered ``significant'' for the purposes
of determining whether the secondary material is a legitimate fuel.
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4. Secondary Materials Used as Legitimate ``Alternative'' Fuels
Resulting From the Processing of Discarded Secondary Materials
The ANPRM also stated that legitimate fuel products may be
extracted, processed, or reclaimed from non-hazardous secondary
materials that have been discarded in the first instance and that such
products would generally not be considered solid waste. Once processed
to make a legitimate non-waste fuel product, such a product
[[Page 31854]]
would not be discarded and therefore would not be a solid waste,
provided it met the general principles discussed in today's preamble
for being a legitimate fuel. However, until a legitimate product has
been processed, the secondary material that has been discarded is a
solid waste, and must comply with any federal, state or local
regulations. In addition, any waste generated in the ``processing'' of
these materials would need to be managed properly and comply with the
appropriate requirements. The ANPRM described various secondary
materials that can be processed into fuels, including discarded biomass
(e.g., with dewatering/drying techniques to increase the Btu/lb, or
stripping the paint off wood to produce clean biomass), coal fines,
used oil, tires,\18\ landfill ash, and secondary materials that are
mixed and processed into pellets (or other forms) that have the
consistency and handling characteristics of coal (e.g., K-Fuel, N-
Viro). The ANPRM stated that the degree of processing necessarily will
vary depending on the specific material, but the objective remains the
same--the product from the processing must be a legitimate fuel (i.e.,
a material with meaningful heating value, with contaminants that are
not present at significantly higher concentrations than those of
traditional fuel products, and managed as a valuable commodity).
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\18\ Turning scrap tires into TDF can involve two physical
processing steps: Chipping/shredding and in some cases metal
removal. The ANPRM stated that, at that point, the Agency's view was
that tire shredding/chipping alone (without metal recovery), as well
as in combination with metal recovery, are legitimate processing
activities sufficient to convert a discarded material into a fuel
product.
---------------------------------------------------------------------------
Although the ANPRM stated that forest-derived biomass is not
considered to have been discarded, we requested comment on whether any
forest-derived biomass that was determined to have been discarded and
was subsequently processed by chipping or sorting prior to use as a
fuel through combustion would be considered to have undergone adequate
processing to convert the discarded material into a fuel product. We
also requested comment on whether mined landfill power plant residuals
that is crushed, screened, and/or separated into its fundamental
components through density separation is adequately processed to
convert it into a fuel product or ingredient (under the assumption that
it meets our previously described legitimacy criteria).
With respect to used oil, the ANPRM stated that off-specification
used oil that is collected from repair shops is generally thought to be
originally discarded, but that on-spec used oil was considered to be a
product fuel, not a waste. We also requested comment on whether off-
specification used oil managed pursuant to the 40 CFR part 279 used oil
management standards which are burned for energy recovery should be
considered to be discarded, and thus whether such off-specification
used oil should be considered a non-waste fuel. We stated that although
off-specification used oil may contain contaminant levels that are
higher in concentration than traditional (virgin) fossil fuels, they
still are managed within the constraints of the used oil management
standards, and may only be burned in specific types of combustion
devices.
5. Secondary Materials Used as Legitimate Ingredients
For secondary materials used as ingredients, the ANPRM also stated
we must determine whether alternative ingredients, such as CKD, bottom
ash, boiler slag, blast furnace slag, foundry sand, and secondary glass
material have been discarded, or whether they are being used as
legitimate non-waste ingredients. For example, the ANPRM stated that
coal fly ash is handled as a commodity within continuous commerce when
it is marketed to cement kilns as an alternative ingredient, and would
not be considered a waste if it met the legitimacy criteria.
The ANPRM also stated that secondary materials used as ingredients
that were previously discarded could be processed into legitimate non-
waste ingredients.
6. Hazardous Secondary Materials That May Be Excluded From the
Definition of Solid Waste Under RCRA Subtitle C Because They Are More
Like Commodities Than Wastes
In the ANPRM, the Agency explained that, under the hazardous waste
regulations, EPA has evaluated a number of hazardous secondary
materials that are legitimately used or recycled and determined that
such materials, while they either met a listing description or
exhibited one or more of the hazardous waste characteristics, were not
``solid wastes'' for purposes of the subtitle C hazardous waste
regulations. Specifically, black liquor, spent sulfuric acid, and
comparable fuels may be burned under certain conditions and would not
be solid wastes. The ANPRM discussed EPA's interest in extending this
determination so that these materials are not considered solid wastes
under RCRA subtitle D as well.
7. Additional Areas for Comment in the ANPRM
a. Fuels or Materials That Have Been Discarded That Are Generally
Considered To Be Solid Wastes
The ANPRM explained that secondary materials that have been
previously discarded and not subsequently processed into legitimate
fuels or ingredients are considered solid wastes under RCRA. However,
the Agency requested comment as to whether these discarded materials--
once recovered from the discard environment--should no longer be
considered solid waste (assuming they are in fact valuable fuels or
ingredients and otherwise meet the legitimacy criteria once recovered).
EPA recognized that waste can be burned for energy or material
recovery. Such materials, once they have been discarded, generally are
considered ``solid wastes'' and units that burn these materials would
be subject to the CAA section 129 incineration standards if they have
not been processed into a legitimate non-waste ingredient or fuel.
However, the ANPRM explained that as prices for primary materials have
increased, in many cases, the economics of using secondary materials as
a substitute for primary materials has shifted, changing how the
secondary materials are considered in commerce. In addition, new
technologies can expand the universe of secondary materials that could
be considered legitimate fuels.
The ANPRM therefore requested comment on those situations where
discarded materials (e.g., used tires and coal refuse) can be directly
used as a legitimate fuel or ingredient without processing because they
are indistinguishable in all relevant aspects from a fuel or ingredient
product. (Note that the Agency only requested comment on these
secondary materials at the point they have been removed from their
``discard'' environment and managed as valuable commodities. Materials
that have been disposed of in abandoned piles or landfills are clearly
discarded while they remain in those environments and are subject to
appropriate federal, state and local regulations.)
b. Other Approaches for Determining Whether Secondary Materials Are
Fuels and Not Solid Wastes
The ANPRM requested comment on an approach, as presented to the
Agency by industry representatives, for determining when non-hazardous
secondary materials are fuels and thus, not solid waste, and how the
process
[[Page 31855]]
may be implemented.\19\ Industry representatives suggested that non-
hazardous secondary materials should be evaluated, on a case-by-case
basis, to identify which criteria have been satisfied and determine
whether the material is legitimately handled as a fuel. Criteria
identified by industry stakeholders include: handling and storage of
materials to minimize loss, use of materials within a reasonable period
of time, material value (e.g., whether there is a market for the
material as a fuel, internal or external to the company), material
managed and treated as a commodity, and processing of material to
enhance fuel value. Under the industry recommended approach, the
secondary material would not necessarily have to satisfy all criteria.
To implement the aforementioned concepts for determining when or which
secondary materials are fuels, the ANPRM described two methods
presented by industry, which were not meant to be mutually exclusive.
One method is self-implementing, by which an owner or operator of a
combustion device must determine that the secondary material meets the
criteria set forth and maintain records to demonstrate that these
criteria are met. The other method is not self-implementing, but would
allow an owner or operator to petition EPA or the state to specifically
list a secondary material as a legitimate non-waste fuel (in addition
to a pre-established list of materials). In the petition, the owner or
operator would use the criteria as the basis for proposing that EPA or
the state list the secondary material, or the owner or operator could
submit additional information to demonstrate the environmental
equivalence of the material to other listed fuels.
---------------------------------------------------------------------------
\19\ A copy of this industry-recommended approach entitled,
``Outline of Regulatory Approach to Determine Materials Considered
Fuels--not Solid Wastes--under RCRA,'' is included in the docket to
today's proposed rule.
---------------------------------------------------------------------------
c. Materials for Which State Beneficial Use Determinations Have Been
Made
The ANPRM explained that states regulate the management of non-
hazardous solid waste, including secondary industrial materials, and
that many states have a process or promulgated regulations to determine
when these materials are no longer wastes because they can beneficially
and safely be used as products in commerce. Materials are no longer
subject to the state's solid waste regulations under the state rules
when the state determines that the secondary materials are no longer
solid wastes when beneficially used. The ANPRM further explained that
the states are the lead Agencies for implementing the non-hazardous
waste programs and, as such, the Agency wanted to make sure that state
programs are not adversely affected by any decisions that are made by
EPA, noting that we see a benefit to deferring to state decisions,
which are able to consider site-specific information. As a result, the
Agency requested comments on whether to consider secondary materials
that receive a state beneficial use determination for use as a fuel or
as an ingredient as not a solid waste, also not be considered a solid
waste under federal law.
d. Biofuels
Biofuels can be generally described as a gas or liquid fuel made
from biological materials, including plants, animal manure, and other
organic sources. The ANPRM noted that biofuel production has increased
dramatically in the past few years and is expected to continue
increasing over the coming years, and stated that biofuels produced
from secondary materials, such as ethanol and biodiesel, are not
considered to be solid wastes themselves, but rather are viewed as
legitimate fuel products. Secondary materials associated with biofuel
production can be viewed to include both the feedstock materials that
are used to produce biofuels, as well as the byproducts generated from
the production of biofuels. The ANPRM stated that these materials are
considered legitimate alternative fuels when they have meaningful
heating value, do not contain contaminants that are significantly
higher in concentration than traditional fuels, and are handled as a
valuable commodity.
B. Summary of the Proposed Approach
1. Changes from the ANPRM Approach
While many of the concepts and provisions that were discussed in
the ANPRM are included in this proposal, including discard and the
legitimacy criteria, the basic framework is different based partly on
the approach taken in the Definition of Solid Waste (DSW) final rule
promulgated on October 30, 2008 (see 73 FR 64668) under subtitle C of
RCRA, based partly on the comments received (see section VII.C for the
comments and EPA's response), as well as on our interpretation of
whether these secondary materials are considered to be discarded (see
section VII.C.2 for the comments and EPA's response).
The ANPRM indicated that there may be a number of secondary
materials that would not be considered discarded even if the original
generator sent them to another entity outside of its control. For
example, used tires collected from automobiles at tire dealerships and
managed pursuant to state tire collection programs were not viewed as
solid wastes in the ANPRM. Comments received from some states suggested
that non-hazardous secondary material fuels that are transferred to a
third party have entered what is traditionally considered to be the
``waste stream'' (and have been regulated by the states as wastes) and
therefore should appropriately be considered wastes (e.g., scrap tires)
unless/until they are processed into non-waste fuel products. As
discussed below, this proposal assumes that non-hazardous secondary
materials that are used as fuels and are managed outside the control of
the generator are solid wastes unless they are processed into non-waste
fuel products. (Note: The same non-hazardous secondary material that is
burned for energy recovery under the control of the generator and meets
the legitimacy criteria would not be considered a solid waste since the
non-hazardous secondary material would not be considered discarded.)
We are also proposing, as discussed below, a non-waste
determination petition process. That process will allow those persons
who burn non-hazardous secondary material fuels that are not managed
within the control of the generator (that this proposal would consider
to be solid wastes), to petition EPA for a determination that such non-
hazardous secondary materials are not discarded and therefore, are not
solid wastes (assuming these materials have met the applicable
legitimacy criteria). While the Agency recognizes that a petition
process can be resource intensive, we also believe it necessary and
appropriate to provide an opportunity for persons to demonstrate to EPA
that their non-hazardous secondary material fuels would not be
considered ``discarded'' under RCRA and therefore, not solid waste.
Furthermore, some other important changes were made between the
ANPRM and this proposal based on comments received and further
investigation. One of the differences is the classification of
``clean'' biomass and on-specification used oil as a traditional fuel
(see section VII.C.5.b.). In addition, EPA is only addressing non-
hazardous secondary materials in this rulemaking, and thus, has decided
not to address hazardous secondary materials that have been excluded
from the definition of solid waste under subtitle C of RCRA in this
rulemaking proceeding. Instead, facilities combusting hazardous
secondary materials should refer to
[[Page 31856]]
EPA's Subtitle C hazardous waste regulations to determine whether the
materials they are combusting are solid wastes. Each of these changes
is discussed in detail in the referenced sections.
2. General Proposed Approach
This proposal maintains the same general principles for determining
whether a non-hazardous secondary material is or is not a solid waste
as expressed in the ANPRM. Under the proposed rule, the following are
not solid wastes when combusted for purposes of the CAA: non-hazardous
secondary materials used as fuels that remain within and are combusted
within the control of the generator and that meet the legitimacy
criteria; non-hazardous secondary materials that meet the legitimacy
criteria and are used as ingredients in a manufacturing process;
materials that meet the legitimacy criteria and have been sufficiently
processed into a fuel or ingredient from discarded non-hazardous
secondary materials that have been discarded; and non-hazardous
secondary materials used as a fuel that does not remain within the
control of the generator for which EPA grants a facility's petition for
a ``non-solid waste'' determination.
The term ``discarded'' is intended to encompass material handling
and management scenarios that meet the plain meaning of discard
(abandoned, disposed of, or thrown away). For example, a secondary
material that is thrown away and disposed of in a landfill is
considered to have been discarded in the first instance. Materials that
have been discarded in the first instance are solid waste even if they
satisfy the legitimacy criteria (unless they are processed into a
legitimate non-waste product) since both wastes and non-wastes may be
legitimately recycled.
3. Legitimacy Criteria
This proposal also maintains the same general principles as
described in the ANPRM for determining whether a non-hazardous
secondary material is or is not a legitimate fuel or ingredient.
Secondary materials used in a combustion unit that are not a legitimate
fuel or ingredient would be considered sham recycling and thus, a solid
waste. For legitimate fuels, non-hazardous secondary materials must be
handled as a valuable commodity, have meaningful heating value, be used
as a fuel in a combustion unit that recovers energy, and contain
contaminants at levels comparable to those in traditional fuels. As
used throughout today's proposal, ``comparable'' levels of contaminants
refer to levels that are comparable or less than those in traditional
fuels. For legitimate ingredients, the non-hazardous secondary material
must be handled as a valuable commodity, provide a useful contribution,
result in a valuable product or intermediate, and result in products
that contain contaminants at levels that are comparable in
concentration to those found in traditional products that are
manufactured without the non-hazardous secondary material. As with
fuels, contaminant levels that are comparable refers to levels that are
comparable or less than contaminant levels found in traditional
products that are manufactured without the non-hazardous secondary
material ingredients.
4. Traditional Fuels
This proposal recognizes that traditional fuels are not solid
wastes when burned in a combustion unit. Traditional fuels are those
fuels that have been historically managed as valuable fuel products
rather than being managed as waste materials. Traditional fuels include
fossil fuels (e.g., coal, oil, including used oil meeting on-
specification levels, natural gas) and their derivatives (e.g.,
petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic
fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous
butane, and coke oven gas). Clean cellulosic biomass materials are also
traditional fuels rather than wastes when burned as a fuel. ``Clean''
material is defined as those non-hazardous secondary materials that
have not been altered (either chemically or through some type of
production process), such that it contains contaminants at
concentrations normally associated with virgin biomass materials. Clean
cellulosic biomass includes forest-derived biomass (e.g., green wood,
forest thinnings, clean and unadulterated bark, sawdust, trim, and tree
harvesting residuals from logging and sawmill materials), corn stover
and other biomass crops used specifically for energy production (e.g.,
energy cane, other fast growing grasses), bagasse\20\ and other crop
residues (e.g., peanut shells), wood collected from forest fire
clearance activities, trees and clean wood found in disaster debris,
and clean biomass from land clearing operations.
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\20\ Bagasse is the matted cellulose fiber residue from sugar
cane that has been processed in a sugar mill. For more information
on bagasse, see the Materials Characterization Paper on Biomass-
Agricultural Residues and Food Scraps, which is located in the
docket of today's proposed rule.
---------------------------------------------------------------------------
We request comment on whether other fuels in use today also should
be classified as traditional fuels, and also whether other types of
cellulosic biomass should be designated as clean biomass, and thus a
traditional fuel. In identifying other secondary materials as a
traditional fuel, commenters will need to explain why such materials
should be considered a traditional fuel--that is, an explanation of how
the materials have historically been managed as a valuable fuel product
and not a waste.
EPA acknowledges that changes in technology and in the energy
market over time may result in additional secondary materials being
economically viable to be used as ``traditional'' fuels. It also may
not always be clear whether a fuel material is a traditional fuel. We
agree with commenters to the ANPRM that this rulemaking should be
flexible to account for increasing use and changes in commodities,
technologies, markets, and fuel prices. We, therefore, request comment
on whether we should provide a petition process that would allow a
facility or person to request that EPA determine whether the fuel that
they burn qualifies as a traditional fuel. If we adopt such a petition
process, it would be implemented through the same process as the non-
waste determination petition process discussed in section VII.D.5.
5. Circumstances Under Which a Non-Hazardous Secondary Material Would
Not Be Considered a Solid Waste
Non-hazardous secondary materials used as fuels in combustion units
would be considered solid wastes unless: (1) The non-hazardous
secondary materials (not otherwise discarded) remain under the control
of the generator as discussed in section VII.D.1, and meet the
legitimacy criteria; or (2) they are legitimate non-waste fuels that
meet the legitimacy criteria and are produced from the processing of
discarded non-hazardous secondary materials as discussed in section
VII.D.4. Non-hazardous secondary materials used as a fuel in combustion
units that are transferred to a third party are considered solid wastes
unless a non-waste determination has been granted pursuant to the
proposed petition process (discussed below).
Non-hazardous secondary materials used as ingredients that are
combusted in combustion units would not be considered solid waste if
they have not been discarded in the first instance and if they are
legitimate ingredients, irrespective of whether they have been
transferred to a third party. We are not
[[Page 31857]]
proposing to differentiate ingredients that are used within the control
of the generator from those that are not since we believe the use of
non-hazardous secondary materials as ingredients is considered to be
more integral or akin to use in a commercial manufacturing process and
thus these non-hazardous secondary materials would not be considered
discarded provided they satisfy the legitimacy criteria.
Except for the petition process, the proposed criteria are designed
to be self-implementing in nature, not requiring Agency action. As
such, we are proposing that it will be the facility's (i.e., the
facility that burns the material) responsibility to determine if the
secondary material satisfies the proposed criteria that identifies
which material is a solid waste when burned in a combustion unit.
6. Petition Process
EPA is also proposing to establish a non-waste determination
petition process for secondary materials used as fuels outside the
control of the generator. The petition process provides persons with an
administrative process for a formal determination that their non-
hazardous secondary material fuel has not been discarded and is
indistinguishable in all relevant aspects from a fuel and therefore not
a solid waste. The determination will be based on whether the non-
hazardous secondary material has been discarded, is a legitimate fuel
and the following criteria: (1) Whether market participants handle the
non-hazardous secondary material as a fuel rather than a solid waste;
(2) whether the chemical and physical identity of the non-hazardous
secondary material is comparable to commercial fuels; (3) whether the
non-hazardous secondary material will be used in a reasonable time
frame given the state of the market; (4) whether the constituents in
the non-hazardous secondary material will be released to the air,
water, or land from the point of generation to the combustion of the
secondary material at levels comparable to what would otherwise be
released from traditional fuels; and (5) other relevant factors. For
further information regarding the non-waste determination petition
process, see section VII.D.5.
EPA developed two flowcharts that generally illustrate the process
of determining whether nonhazardous secondary materials burned as a
fuel or ingredient in combustion units are or are not solid waste.
These diagrams present the proposed rule's basic framework as a series
of questions that should be considered when determining the appropriate
characterization of a nonhazardous secondary material (i.e. as a solid
waste or not when burned in a combustion unit). See ``Flow Chart for
Determining Whether Non-Hazardous Secondary Material Ingredients Burned
In Combustion Units are Solid Wastes'', and ``Flow Chart for
Determining Whether Non-Hazardous Materials Used as Fuel In Combustion
Units are Solid Waste'' in the docket for today's proposal. We are
soliciting comments on whether these flow charts should be included in
the Code of Federal Regulations (CFR) as part of the final rule.
C. What were the major comments on the ANPRM?
1. Comments from State Agencies
EPA received comments from several states and state organizations
in response to the ANPRM. Comments received expressed a range of
viewpoints representing states with differing solid waste management
programs and authorities. Consequently, it was not surprising that the
comments received often articulated competing suggestions and
recommendations based upon different state programs and experiences.
Comment: Some states did not want EPA to define what is or is not a
waste at the federal level if it impacts or limits the scope of what
states currently regulate under their solid waste management authority.
Some states noted a potential problem related to existing ``stringency
provisions'' in some state laws. For example, if a solid waste
determination is made at the federal level, it could be argued that the
state is less stringent through their issued exemptions and the state
rule must be rescinded. Conversely, some states argued they cannot, by
state statute, be more stringent than the Federal regulations, and even
if they don't have this statutory limitation, they may feel pressure to
not be more restrictive than the federal definition. Many states said
we should defer the determination of whether those non-hazardous
secondary materials used as fuels or ingredients are solid wastes to
the states and urged flexibility in how each state could incorporate
any new regulations into its existing solid waste management programs.
EPA's Response: The Clean Air Act (section 129(g)(6)) states that
the term ``solid waste'' shall have the meaning established by the
Administrator pursuant to the Solid Waste Disposal Act. Accordingly,
EPA must define which non-hazardous secondary materials used as fuels
or ingredients in combustion units are solid waste at the national
level in order to identify the universe of sources subject to the
boilers emissions standards to be issued under CAA section 112 and the
CISWI emissions standards to be issued under CAA section 129. See
section VIII of today's proposal for a discussion on the applicability
of state solid waste definitions and beneficial use determinations, as
well as a discussion on state adoption of this rulemaking.
Comment: Many states commented that they had long-standing
``waste'' management programs regulating non-hazardous secondary
materials, that no one had questioned the legitimacy of their
regulatory programs in the past, and that it was inappropriate and
contrary to the intent of RCRA for EPA to exclude this material, which
had been considered ``waste'' for many decades, from regulation under
RCRA.
On the other hand, other states were concerned a federal
designation that some of these non-hazardous secondary materials are
``wastes'' would disrupt existing recycling markets by creating a
deterrent from using these non-hazardous secondary materials as fuels
or ingredients. These states emphasized the importance of promoting
beneficial use of non-hazardous secondary materials and were concerned
that regulation of certain materials (especially used tires) under CAA
section 129 would create negative incentives to their beneficial use
and consequently could have negative environmental impacts.
Many states explained that they manage/regulate many of these
secondary materials as solid waste (e.g., tires), but determine they
are not wastes (via beneficial use determinations) when after analysis
the state has determined they are going to a legitimate use (e.g., as a
fuel). These states recommended that these materials remain a solid
waste until they are approved for, procured and delivered to the
potential end user in order to retain their ability to regulate the
management of these secondary materials, usually under its solid waste
management authority.\21\ For example, some states recommended that EPA
exclude whole tires from the definition of solid waste at the point of
combustion.\22\
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\21\ Many states regulate used tires under a statutory authority
outside of their solid waste management statutory authority, while
some states regulate used tires pursuant to both their solid waste
management authority, as well as separate tire statutory authority.
\22\ Subsequent to the closing of the comment period, the
Environmental Council of States (ECOS) approved Resolution 09-7,
entitled ``Meaning of `Solid Waste' under the Resource Conservation
and Recovery Act (RCRA) as it Applies to Non-Hazardous Waste
Programs.'' This resolution, which was revised on March 23, 2010,
urges EPA to exclude whole tires from the definition of solid waste
for the purposes of combustion. Both the original (dated September
22, 2009) and revised versions are included in the docket for
today's rule.
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[[Page 31858]]
EPA's Response: In developing this proposed rule, EPA attempted to
balance and address the concerns raised by the states regarding
potential impacts on their existing solid waste programs in determining
which non-hazardous secondary materials are solid wastes when
combusted, while at the same time, recognizing that the proposed rule
needed to be based on whether these secondary materials are considered
to have been managed in a way that meets the plain meaning of discard,
as defined in AMC I. We believe we have addressed that balance,
considering the statutory limitations, but also understand that today's
proposal could impact existing state solid waste management programs,
as well as states' beneficial use programs, and specifically request
comment on how today's proposal impacts or could impact such state
programs. For example, does the proposed approach impact the ability of
the states to continue to regulate the management of secondary
materials prior to their final end use.
Comment: Some state commenters suggested that the Agency address
CAA section 129 implementation issues by subcategorizing energy
recovery units that burn waste materials and regulate this combustion
similarly to the CAA section 112 requirements.\23\
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\23\ Id. ECOS Resolution 09-7 presents this position as an
alternative to excluding whole tires from the definition of solid
waste for the purposes of combustion.
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EPA's Response: This comment relates to EPA's regulation of solid
waste incineration units under section 129 and is not relevant to this
action, which proposes to define ``solid waste'' under RCRA for non-
hazardous secondary materials.
2. Meaning of Discard
As discussed in Section VI, RCRA defines ``solid waste'' as `` * *
* any garbage, refuse, sludge from a waste treatment plant, water
supply treatment plant, or air pollution control facility and other
discarded material * * * resulting from industrial, commercial, mining,
and agricultural operations, and from community activities * * * ''
(RCRA section 1004 (27) (emphasis added)). The ANPRM provided a
thorough discussion on the definition of solid waste, including a
summary of relevant case law. See also Section VI.B in today's
preamble. Further, the ANPRM highlighted the importance of the concept
of ``discard,'' noting that the definition of solid waste turns on the
meaning of the phrase, ``other discarded material,'' as this term
encompasses all other examples provided in the definition.
Comment: Several comments stressed that the Agency use the plain
meaning of discard (i.e., disposed of, abandoned, or thrown away) in
defining the term ``solid waste'' for the purpose of establishing the
appropriate standards for combustion units under CAA sections 112 and
129.
EPA's Response: EPA agrees with the premise of using the ``plain
meaning'' of discard, as this position is consistent with case law on
the issue (for a more detailed discussion, please refer to the ANPRM
and section VI.B of today's preamble).
Comment: Some commenters noted that the same rationale and
principles related to ``discarded materials'' should apply whether
these materials are regulated under RCRA subtitles C or D, as the
principles related to ``discarded materials'' are the same. Other
commenters argued that the subtitle C approach should not be used for
non-hazardous secondary materials since these materials pose less risk
relative to hazardous wastes.
EPA's Response: EPA believes it is appropriate to use the same
general framework that has been used to define solid waste for purposes
of RCRA subtitles C and D (albeit tailored to specifically address non-
hazardous secondary materials used as fuels or ingredients in
combustion units), noting that the same statutory definition of solid
waste applies to both RCRA subtitles D and C. However, EPA is not
proposing in today's action any revisions to its hazardous waste
regulations.
Comment: Some commenters argued that any secondary materials that
are beneficially reused or recycled are not waste, regardless of
whether or not the reuse or recycling is conducted in the same or
different location or industry (on-site and off-site).
EPA's Response: The Agency does not agree with this assertion, as
this position is not consistent with case law. Again, the question of
whether a material is or is not a solid waste depends on the issue of
discard. In Safe Food and Fertilizer v. EPA, 350 F. 3d 1263, the court
rejected the argument that, as a matter of plain meaning, recycled
material destined for immediate reuse within an ongoing industrial
process is never considered ``discarded,'' whereas material that is
transferred to another firm or industry for subsequent recycling must
always be solid wastes. 350 F. 3d at 1268. Instead, the court evaluated
``whether the Agency's interpretation of * * * ``discarded'' * * * is,
reasonable and consistent with the statutory purpose.'' Id. Thus, EPA
has discretion to determine if non-hazardous secondary materials are
not a solid waste if it is managed within the control of the generator,
as well as if it is transferred outside the control of the generator.
As previously described, this proposal states that non-hazardous
secondary materials used as a fuel in combustion units that remain
under the control of the generator and meet the legitimacy criteria are
not solid waste, but that non-hazardous secondary materials that are
transferred to a third party and combusted are considered solid wastes,
unless a petition for a non-waste determination has been granted.
Ingredients, on the other hand, are determined not to be solid waste
even if they are managed outside the control of the generator as long
as they meet the legitimacy criteria. See section VII.D.6 for a
discussion on EPA's rationale for these determinations.
Comment: One commenter noted that EPA's hazardous waste regulations
under subtitle C provide that hazardous secondary materials ``burned to
recover energy'' or ``used to produce a fuel'' are ``discarded'' and,
therefore, are solid wastes. 40 CFR.261.2(c)(2). The commenter went on
to point out that under the ANPRM approach, EPA is interpreting the
definition of solid waste to mean that burning of non-hazardous
secondary material, under appropriate conditions, is not ``discard''
under RCRA. According to the comment, the ANPRM is inconsistent with
the interpretation in 40 CFR 261.2. Regardless of whether EPA believes
that it can issue separate definitions of solid waste for hazardous
waste and non-hazardous waste, the commenter suggests ``discarded''
cannot be read both to include materials that are ``burned to recover
energy'' or ``used to produce a fuel'' and to exclude such materials.
EPA's Response: EPA disagrees with this comment and does not
believe the regulations are inconsistent. The hazardous waste
definition may be considered a ``presumption'' that secondary materials
burned for energy recovery, or used to produce a fuel, are solid
wastes. EPA has, through rulemaking, excluded from the definition of
solid waste a number of materials burned for energy recovery under
certain conditions. See 40 CFR 261.2(c)(2)(A)(ii) (off specification
commercial chemicals otherwise listed as hazardous wastes);
261.4(a)(6)(``black liquor'' in pulping processes);
[[Page 31859]]
261.4(a)(7) (spent sulfuric acid); and 261.4(a)(16) (comparable fuels).
In addition, EPA has excluded materials used to produce fuels. See, 40
CFR 261.4(a)(12) (oil bearing hazardous secondary material inserted
into the petroleum refining process), and 261.4(a)(18) (petrochemical
recovered oil inserted into the refining process).
Regardless of the appropriateness of these exclusions, or whether
the Agency may appropriately exclude any secondary materials from the
solid waste definition, consistency between the regulations for
hazardous and non-hazardous secondary materials is not an issue. This
proposed rule, which identifies certain secondary materials burned for
energy recovery as not being solid wastes, is comparable to the
conditional exclusions for the definition of solid waste in the
hazardous waste regulations. Conditions apply to all of the secondary
materials being considered for determinations as to whether they are
solid wastes. The legitimacy criteria apply to all of the secondary
materials.
It is reasonable and within EPA's discretion to determine that non-
hazardous secondary materials may be burned as products and are not
wastes. Today's proposal acknowledges the difficulty that the
combustion of secondary materials is commonly associated with disposal.
However, this view does not take into account that the secondary
material may often be used to produce a safe fuel product that is a
valuable commodity and is sold in the marketplace no differently from
traditional fuels. This position seems like a common sense
interpretation of the term, ``solid waste,'' under RCRA.
Another difficulty the Agency faces is the misconception that
secondary material that is burned, either for destruction or energy
recovery, by definition has high levels of contaminants. The manner in
which the secondary material is managed is a key factor that determines
discard. Contaminant levels are part of that consideration. If a
material has high levels of contaminants, it would be considered sham
recycling, which is one type of way a material can be ``discarded.''
Hazardous secondary materials--those that would be hazardous wastes
under RCRA subtitle C, if discarded--are more likely to contain high
levels of contaminants. Thus, EPA could reasonably presume that burning
such secondary materials, even if burned for energy recovery, is likely
a waste activity. This was the Agency's rationale for issuing the
subtitle C rule at 40 CFR 261.2(c)(2), which specifies that burning for
energy recovery is a waste disposal activity. In EPA's rule
establishing the comparable fuels exclusion from the definition of
solid waste for hazardous secondary materials, the Agency stated that
these hazardous secondary materials (comparable fuels) are lower in
hazardous contaminants than the normal hazardous wastes and that
burning of the comparable fuels ``does not present the element of
discarding hazardous constituents through combustion that underlies the
typical classification of hazardous waste-derived fuels as a solid
waste. 50 FR at 629-630 (Jan. 4, 1985).'' 63 FR at 33783 (1998). We
may, after looking at certain secondary materials, decide that they are
not in fact solid wastes and are being burned as valuable commodities
to recover energy. This interpretation, however, is consistent with
today's proposal, which also evaluates whether materials burned for
energy recovery are wastes or non-wastes.
Moreover, the case law supports the conclusion that materials
burned for energy recovery or used to produce fuels may or may not be
solid wastes. American Mining Congress v. EPA, 824 F.2d 1177 (DC Cir.
1987) (``AMC I''), held that the term ``discarded materials'' could not
include materials `` * * * destined for beneficial reuse or recycling
in a continuous process by the generating industry itself. 824 F.2d at
1190. The provision under consideration in this case dealt specifically
with material ``reclaimed'' in a continuous process. That is, material
is regenerated from a secondary material in a continuous process.
However, it is highly likely the courts would apply this same reasoning
to secondary materials that are otherwise reused or recycled in a
continuous industrial process, such as material used, or combusted, to
recover energy. Accord, Association of Battery Recyclers v. EPA, 208
F.3d 1047 (DC Cir. 2000) (``ABR'').
It is also worth noting that the Ninth Circuit has specifically
found that non-hazardous secondary materials may, under certain
circumstances, be burned and not constitute solid waste under RCRA. See
Safe Air For Everyone v. Waynemeyer (``Safe Air''), 373 F.3d 1035 (9th
Cir., 2004) (Kentucky bluegrass stubble may be burned to return
nutrients to the soil and not be a solid waste). This activity is not
waste treatment even in the absence of energy recovery. We believe,
therefore, that burning material for another useful purpose (e.g.,
energy recovery) does not necessarily constitute a disposal activity.
With respect to materials used to produce fuels, in American
Petroleum Institute v. EPA, 216 F.3d 50 (DC Cir. 2000) (``API II''),
the court overturned EPA's determination that certain recycled oil
bearing wastewaters are wastes (216 F.3d at 55-58) and upheld
conditions imposed by the Agency in excluding petrochemical recovered
oil from the definition of solid waste (216 F.3d at 58-59). Both of
these materials are returned to the petroleum refinery process and used
to produce fuel. The court in this case was clearly considering the
conditions under which two types of material may be excluded from the
definition of solid waste. For purposes of the issue of concern in
today's proposal, this decision supports EPA's discretion to determine
whether or not a secondary material used as a fuel product is a solid
waste or not, in light of factors relevant to determining whether the
material is discarded. Therefore, EPA is not prevented from exercising
its discretion to decide that issue either way.
3. General Approach
EPA received several comments on the general approach outlined in
the ANPRM for determining which non-hazardous secondary materials used
as fuels or ingredients in combustion units are or are not solid
wastes. Most commenters supported the general regulatory structure that
included: (1) A recognition that certain materials are inherently fuel
products, (2) a self-implementing approach for identifying those non-
hazardous secondary materials that are not considered solid waste
pursuant to general criteria and (3) a petition process for receiving a
non-waste determination from the Agency.\24\
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\24\ On August 18, 2009, EPA received a letter signed by nearly
one hundred community groups and citizens that urged for an
expansive definition of solid waste for the purposes of combustion
and argued against the general approach of the ANPRM. A copy of this
letter has been placed in the docket for today's proposed rule. The
letter highlights stakeholder concerns regarding the differences
between CAA sections 112 and 129 and argues against an overly narrow
definition of solid waste. Partially in response to these comments
and others, we are considering and taking comment on an alternative
approach to that proposed and described in section VII.D. This
alternative approach would include, with certain exceptions, non-
hazardous secondary materials that are burned as a fuel or used as
an ingredient in the combustion process within the definition of
solid waste. As such, units combusting those materials would be
required to meet CAA section 129 standards. For more information on
the alternative approach, see section VII.E of this proposed
rulemaking.
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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
[[Page 31860]]
identified, rather than a list of secondary materials that are not
considered wastes, while other commenters urged for the inclusion of a
list of secondary materials that are not considered wastes when burned
as a fuel. If EPA included a list of secondary materials that are not
considered wastes when burned as a fuel in its regulations, one
commenter also suggested that the Agency additionally include a list of
secondary materials that are considered wastes in order to remove any
uncertainty. Those commenters who urged that the regulations include a
list of secondary materials not considered a waste when used as a fuel
or ingredient also cautioned that such a list should not be all-
inclusive in order to account for changes in technology and new
secondary materials and processes that are not yet developed.
EPA's Response: In recognition of changes in economies,
technologies, markets and material processes, EPA is not proposing to
list specific non-hazardous secondary materials as either wastes or
non-wastes in regulatory language, but is rather specifying the
criteria to be used to determine if these secondary materials are or
are not solid wastes. We believe that there could be instances where
determinations of whether a particular non-hazardous secondary material
meets the various criteria will have to be based on site-specific
information; a national designation that in all circumstances, a
particular non-hazardous secondary material is or is not a waste may
not be possible. However, it is EPA's goal in this proposal, as well as
in the pending final rule preamble, to indicate, as clearly as
possible, which non-hazardous secondary materials used as fuels or
ingredients in combustion units are or are not considered solid waste
based on this criteria. As several commenters also noted, any approach
must be flexible enough to account for changing technologies and new
secondary materials that could, in the future, be viable fuels or
ingredients. The proposed approach allows for these changes, not by
codifying a list of specific non-hazardous secondary materials that are
or not waste, but rather by adopting a self-implementing approach that
can consider site-specific information, if necessary.
Comments: A few commenters noted a preference for categorical
determinations that certain secondary materials were products, not
wastes (e.g., traditional fuels) along with clear criteria for solid
waste determinations for secondary materials not falling into one of
these categories (i.e. a petition process for non-waste
determinations).
EPA's Response: EPA partially agrees with this approach. The
proposed rule discusses traditional fuels as a category of fuel
products that are not secondary materials and therefore, are not solid
waste. With respect to non-hazardous secondary materials, although this
proposal does not list types/categories of such secondary materials
that are or are not solid waste in regulatory text (as discussed
above), we are proposing self-implementing regulatory criteria to be
used by the regulated universe to determine whether the non-hazardous
secondary material would or would not be a solid waste. The regulatory
criteria are based on four categories of non-hazardous secondary
materials that are managed under various scenarios, including: (1) Non-
hazardous secondary materials that remain within the control of the
generator and meet the legitimacy criteria and used as fuel; (2) non-
hazardous secondary materials that meet the legitimacy criteria and are
used as ingredients; (3) fuel or ingredient products that are processed
from discarded non-hazardous secondary materials and that are used as
fuels or ingredients in a combustion unit, provided they meet the
legitimacy criteria; and (4) EPA has granted a non-waste determination
for non-hazardous secondary material fuels managed outside the control
of the generator.
More detailed information on these categories and their respective
criteria can be found in section VII.D. of this proposal.
Comments: Some commenters suggested that a petition process for a
waste determination should not be mandatory. Proponents of this
position urged that any regulatory construct for demonstrating that
non-hazardous secondary materials qualify as alternative fuels should
be self-implementing and not involve the need for individual regulatory
determinations.
EPA's Response: The non-waste petition process that applies to non-
hazardous secondary material fuels managed outside the control of the
generator is not mandatory; however, we note that the assumption in
this proposed rule is that these materials would be a solid waste,
unless they are granted a non-waste determination by EPA. Also, as
explained above, we are proposing a self-implementing approach for all
the other non-hazardous secondary material management categories that
can consider site-specific information, if necessary (i.e., facilities
will make a self-determination of whether the non-hazardous secondary
material in question meets the regulatory criteria). We again note it
is EPA's intention to indicate in the preamble, as clearly as possible,
which non-hazardous materials used as fuels or ingredients in
combustion units are or are not considered solid waste based on the
criteria laid out in regulatory text. The Agency expects this self-
implementing approach will govern for the majority of situations.
4. Level of Processing Needed To Produce a Non-Waste Product From
Discarded Waste Material
In the ANPRM, we stated that if a non-hazardous secondary material
is processed into a legitimate fuel or ingredient product, then the
processed material would not be a discarded material. We listed various
non-hazardous secondary materials we believed to have undergone
adequate processing (e.g., tire-derived fuel), and requested comment on
whether some of the materials, such as mined landfilled ash, should be
considered to have undergone adequate processing, such that it would be
rendered a non-waste.
Comments: Most commenters generally agreed with the concept, but
had differing views on what level of ``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
[[Page 31861]]
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 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 Sec.
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.
5. 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 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.
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.\25\ 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.
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\25\ 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.''
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Comments: Cellulosic Biomass: For the cellulosic biomass category,
several commenters argued that resinated wood products (e.g., board
trim, sander dust,
[[Page 31862]]
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.\26\ 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.
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\26\ 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.
---------------------------------------------------------------------------
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.\27\
Further, the commenter states that a comparison of emission data for
forty-eight organic compounds when burning wood residue and wood
residue in combination 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.
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\27\ 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.
---------------------------------------------------------------------------
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) \28\ are likely legitimate fuels.
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\28\ Primary sludges consist of wood fiber and inorganic
materials and secondary sludges are primarily microbial biomass.
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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.\29\ Based on the data and
information the Agency receives, we may decide that such secondary
materials are more appropriately defined as solid wastes.
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\29\ 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.
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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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
[[Page 31863]]
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 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.\30\ We will evaluate
the information submitted during the public comment period and will
discuss our determination in the final rule.
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\30\ Based on data provided to EPA by USDA, research conducted
by the Texas Agricultural Experiment Station and the Texas
Cooperative Extension shows that manure has a dry, ash free heating
value of 8,500 Btu/lb, while other research demonstrates the energy
value of manure (as received) to be much lower (between 2,710-5,764
Btu/lb). 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.
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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.
[[Page 31864]]
Comments: Other than the states,\31\ 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.
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\31\ For a discussion of state comments regarding used tires,
see section VII.C.1., ``Comments from State Agencies.''
---------------------------------------------------------------------------
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 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 tires 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.\32\
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\32\ 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.
---------------------------------------------------------------------------
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 devices \33\ should be considered a legitimate non-
waste fuel.
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\33\ 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.
---------------------------------------------------------------------------
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 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.\34\ 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.\35\
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\34\ 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.
\35\ See Used Oil Final Rule, 50 FR 49181 (November 29, 1985).
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This approach is supported by Safe Food and Fertilizer v. EPA, 350
F.3d 1263 (DC 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
[[Page 31865]]
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.\36\ 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 wells as state, and
local requirements, unless it is processed to meet the on-spec used oil
limits specified in 40 CFR 279.11.
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\36\ 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.
---------------------------------------------------------------------------
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.\37\ 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.
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\37\ Used Oil Final Rule, 50 FR 49194 (November 29, 1985).
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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 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.\38\ For the purposes of this proposal,
however, it is not necessary to discuss whether coal refuse from legacy
piles
[[Page 31866]]
satisfies the contaminant requirement 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.
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\38\ 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 SO2 emissions, which results in greater metal
fixation to the ash.
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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).\39\ 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.
---------------------------------------------------------------------------
\39\ The ANPRM included landfill ash in its description of coal
refuse.
---------------------------------------------------------------------------
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 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.\40\ 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 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.
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\40\ 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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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
[[Page 31867]]
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.
Comparison of Toxics of Municipal Wastewater Treatment Sludges to Traditional Fuels \41\
----------------------------------------------------------------------------------------------------------------
Sewage sludge
----------------------------------------------
Element National sewage Coal (mg/kg)
40-City study (mg/kg sludge study (mg/kg
dry weight) 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.
----------------------------------------------------------------------------------------------------------------
As such, 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.
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\41\ 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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6. 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.
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
[[Page 31868]]
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 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.\42\ 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.
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\42\ 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.
---------------------------------------------------------------------------
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. 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
[[Page 31869]]
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.\43\ We are also aware that fly ash may
contain various levels of metals, such as vanadium, zinc, copper,
chromium, nickel, lead, arsenic, and mercury.\44\ 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 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.\45\
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\43\ 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.
\44\ 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.
\45\ ``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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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.\46\ 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.\47\ 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.
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\46\ Id at 4-4.
\47\ 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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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 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.
7. 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
[[Page 31870]]
comment on the criteria themselves and whether they are reasonable for
non-hazardous secondary materials.
a. General
Comments: Application of Legitimacy Criteria: 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-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.\48\ See section VII.D.6 for additional discussion.
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\48\ 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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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. 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
[[Page 31871]]
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: 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)(1)(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 sections 112 or 129. They
stated that 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
[[Page 31872]]
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) 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., 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 ways
\49\ 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.
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\49\ 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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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.
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.
8. De Minimis Concept
Although we did not discuss the concept of de minimis in the ANPRM,
commenters argued strongly that EPA allow for de minimis amounts of
solid
[[Page 31873]]
waste to be burned without being subject to the CAA 129 requirements.
Comments: Several commenters believe that any regulatory construct
should include a de minimis exemption that excludes from the definition
of solid waste for purposes of CAA section 129, those materials (i.e.,
solid waste) that, when combusted, result in de minimis emissions. An
example provided by the commenters of a waste material is boiler
chemical cleaning waste, which consists primarily of water, but also
includes metal deposits from the boiler tubes, as well as spent
solvent. Another example is oily rags which are generated in small
quantities during routine maintenance activities. Air emissions
associated with these practices is a small fraction compared to the
emissions generated from fossil fuel combustion. Commenters also cited
several court decisions that held that EPA retains the legal authority
to promulgate de minimis exceptions for regulatory schemes.
EPA's Response: The issue of whether the burning of de minimis
amounts of solid waste (i.e., because it results in de minimis
emissions) can be exempted from CAA 129 regulation is outside the scope
of this rulemaking, which is only concerned with identifying which non-
hazardous secondary materials burned as fuels or ingredients in
combustion units are or are not solid waste.
D. Rationale for, and Detailed Description of, Proposed Approach
Under this proposal, non-hazardous secondary materials used as
fuels in combustion units would be considered solid waste unless: (1)
The non-hazardous secondary materials remain under the control of the
generator as discussed in section VII.D.1, and are legitimate fuels; or
(2) they are legitimate fuels that are produced from the processing of
discarded non-hazardous secondary materials as discussed in section
VII.D.4. Non-hazardous secondary materials used as a fuel in combustion
units that are transferred to a third party (and not considered to be
managed within the control of the generator) are considered solid
wastes unless a non-waste determination has been made pursuant to the
proposed petition process (discussed below in section VII.D.5).\50\
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\50\ As we noted earlier in the preamble, traditional fuels also
are not considered solid wastes when burned in a combustion unit.
Therefore, we will not discuss the use of traditional fuels further
since we believe it is understood that they are legitimate products
and not wastes.
---------------------------------------------------------------------------
Non-hazardous secondary materials used as ingredients in combustion
units would not be considered solid waste if they have not been
discarded in the first instance and if they are legitimate ingredients,
irrespective of whether they have been transferred to a third party
outside the control of the generator. Non-hazardous secondary materials
that have been discarded may be processed into a non-waste ingredient
that meets the legitimacy requirements as discussed in VII.D.4.
The ANPRM also discussed another possible exclusion from being a
solid waste--that is, hazardous secondary materials that are excluded
from the definition of solid waste under RCRA subtitle C when
combusted. However, EPA has concluded that it does not need to include
this exclusion since these materials have already been excluded from
the definition of solid waste as hazardous secondary materials and,
therefore, are not subject to this rule, which deals with the
definition of solid waste for non-hazardous secondary materials used in
combustion units. As noted in the ANPRM, under the hazardous waste
regulations, the Agency has evaluated a number of hazardous secondary
materials that are recycled and determined that such materials, while
they either met a listing description or exhibited one or more of the
hazardous waste characteristics, were not ``solid wastes'' for purposes
of the RCRA Subtitle C hazardous waste regulations when they were
combusted. Specifically, the following materials may be burned under
certain conditions and are not defined as solid wastes for purposes of
the hazardous waste regulations--black liquor, spent sulfuric acid,
comparable fuels and commercial chemical products that are themselves
fuels.\51\ These secondary materials are not solid wastes provided they
are handled under the applicable conditions of the exclusions specified
under the RCRA subtitle C hazardous waste regulations, and are not
considered solid wastes for purposes of CAA section 129. The rules
covering the determinations for black liquor, spent sulfuric acid,\52\
comparable fuels,\53\ and commercial chemical products that are
themselves fuels \54\ are not being reopened in this proceeding and EPA
is no longer requesting comment on those solid waste definitions for
purposes of this rule.
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\51\ Black liquor is burned in a pulping liquor recovery furnace
and then reused in the pulping process, while spent sulfuric acid is
used to produce virgin sulfuric acid; in both these instances, these
hazardous secondary materials are considered to be an integral part
of the manufacturing process. With respect to comparable fuel, these
hazardous secondary materials are considered a legitimate non-waste
fuel because they meet the chemical and physical specifications of a
traditional benchmark fuel. Commercial chemical products that are
themselves fuels, such as off-specification fuels, including
gasoline, jet fuel, kerosene, diesel, etc., are not solid wastes
when burned as fuels if that is their intended purpose (40 CFR
261.2(c)(2)(ii)).
\52\ See Definition of Solid Waste Final Rule, January 4, 1985
at 50 FR 641-642, covering both black liquor and spent sulfuric
acid.
\53\ See ``RCRA Comparable Fuels Exclusion'' Final Rule, June
19, 1998, 63 FR 33782.
\54\ See 50 FR 614 ``Amendments to the Definition of Solid
Waste'' (Final Rule), January 4, 1985 at 50 FR 618, 629. See also
Hazardous Waste Management System; Definition of Solid Waste;
Corrections, April 11, 1985 at 50 FR 14219.
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Except for the petition process, the proposed criteria are designed
to be self implementing in nature, i.e. they do not require prior
Agency approval.
1. Non-Hazardous Secondary Materials Used as Fuel Within the Control of
the Generator
We are proposing to use the general framework finalized in the
Definition of Solid Waste Rule to determine circumstances under which
non-hazardous secondary materials remaining under the control of the
generator that are used as fuels in combustion units are not considered
to have been discarded.
a. Scope and Applicability. EPA is proposing that non-hazardous
secondary materials used as fuels in combustion units that remain
within the control of the generator and that meet the legitimacy
criteria specified in section VII.D.6 would not be solid waste. Non-
hazardous secondary materials that remain within the control of the
generator and meet these criteria are referred to as legitimate (non-
waste) fuel products. The proposed conditions that must be satisfied to
qualify as ``under the control of the generator'' are found in proposed
40 CFR part 241.3. Nevertheless, EPA is seeking comment on whether such
secondary materials should be considered solid wastes and thus, be
subject to the CAA section 129 requirements if combusted.
There are two scenarios where non-hazardous secondary materials
used as fuels can be demonstrated to remain within the control of the
generator. As such, the proposal consists of two parts in determining
whether these secondary materials qualify for being ``under the control
of the generator.'' The first part applies to non-hazardous secondary
material generated and used as fuels at the generating facility. For
purposes of this proposed criteria, ``generating facility'' means all
contiguous property owned, leased, or otherwise controlled by the
secondary material generator, and
[[Page 31874]]
``secondary material generator'' means any person whose act or process
produces non-hazardous secondary materials at the generating facility.
A facility that collects non-hazardous secondary materials from other
persons (for example, used tires collected through a collection
program) is not the secondary material generator of those materials.
This is consistent with the approach taken in the DSW final rule, which
specified that a facility that collects hazardous secondary materials
from other persons (for example, when mercury-containing equipment is
collected through a special collection program), would not be
considered the hazardous secondary material generator for purposes of
eligibility for the generator-controlled exclusion. See 73 FR at 64715.
If a generator hires or contracts with a different company to use
the non-hazardous secondary materials at the generator's facility as
fuel, either temporarily or permanently, these materials remain under
the control of the generator. However, generators sometimes contract
with a second company to collect non-hazardous secondary materials at
the generating facility and such materials are subsequently used as
fuels in a combustion unit at another facility. In that situation, if
the facility that burns the non-hazardous secondary material is not
``within the control of the generator'' as defined below in the second
part of the definition, then the non-hazardous secondary material fuel
would be considered a solid waste unless a non-waste determination has
been granted pursuant to the petition process.
The second part of the proposed definition applies to non-hazardous
secondary material generated and used as fuels at a different facility
that is controlled by the generator (or if a person as defined in
proposed Sec. 241.2 controls both the generator and the facility using
the fuel in a combustion unit). For purposes of this proposed criteria,
``control'' means the power to direct the policies of the facility,
whether by ownership of stock, voting rights, or otherwise, except that
contractors who operate facilities on behalf of a different person as
defined in proposed Sec. 241.2 shall not be deemed to ``control'' such
facilities. Thus, when a contractor operates two facilities, each of
which is owned by a different company, non-hazardous secondary
materials generated at the first facility and used as a fuel at the
second facility is not considered ``under the control of the
generator.''
We note that the DSW final rule includes a third part of the
definition that 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 toll manufacturer is the person who
produces the product or intermediate made from the specified raw or
virgin materials pursuant to a written contract with a tolling
contractor. We view this as a very specific type of arrangement where,
for example, a chemical manufacturer outsources a step in the
manufacturing process to another company (typically a ``batch''
manufacturer), and then the batch manufacturer sends both the product
and the residuals back to the main company (and the residuals are then
reclaimed by the main company). Although there are two companies, there
is only one manufacturing operation, and the main company keeps control
over (and liability for) everything through the tolling contract.
We do not believe that tolling contracts are relevant to non-
hazardous secondary materials used as fuels in combustion units as we
are unaware of these types of contractual arrangements where both
products and secondary material fuel are sent to what we are calling
tolling contractors. As a result, we are not including this type of
arrangement under the proposed definition for non-hazardous secondary
material fuels that remain under the control of the generator. However,
the Agency requests comments on whether to include this option in the
final rule; those persons who provide comments supporting the addition
of this option to the final rule should provide specific instances or
examples of where non-hazardous secondary materials are managed under
tolling arrangements and the frequency that such arrangements are used,
and how these arrangements remain ``under the control of the
generator.''
b. Restrictions and Requirements
Legitimate Use. Under this proposed rule, non-hazardous secondary
materials used as fuels in combustion units that remain under the
control of the generator must meet the legitimacy criteria proposed in
Sec. 241.3(d). To satisfy the legitimacy criteria, the non-hazardous
secondary material (non-waste) fuel must be handled as a valuable
commodity, have meaningful heating value and be used as a fuel, in a
combustion unit that recovers energy, and contain contaminants at
levels comparable to those in traditional fuels which the combustion
unit is designed to burn. The details of the legitimacy criteria are
discussed in Section VII.D.6. of this proposal.
Notification. We are not proposing to require facilities that use
non-hazardous secondary material fuels within the control of the
generator to notify EPA as part of this proposal. We believe this would
be duplicative of the CAA 112 regulatory notification and record
keeping requirements being proposed for boilers and process heaters
today. That proposal would require specific notifications from sources
subject to the standards including notifications of compliance status,
test results and descriptions of applicable air pollution control
devices. In addition, for sources that have made a non-waste self-
determination under Sec. 241.3, the proposal for boilers and process
heaters requires that records be maintained which document how the fuel
meets legitimacy criteria and the definition of processing as
appropriate. However, we solicit comment on this and specifically
request comment on whether the Agency should require, at least
initially, if not on a periodic basis, notification and recordkeeping
under RCRA by those persons who both generate or combust non-hazardous
secondary materials that are not solid wastes, including documentation
that explains or provides the basis for the non-hazardous secondary
material meeting the legitimacy criteria, and thus, is not a solid
waste.
2. Non-Hazardous Secondary Materials Used as Fuel Outside the Control
of the Generator
Non-hazardous secondary materials used as a fuel in combustion
units that are not considered to be managed within the control of the
generator would be considered solid wastes unless they have been
processed into a legitimate non-waste fuel product (discussed in
section VII.D.4. below) or unless a non a non-waste determination has
been made pursuant to the proposed petition process (discussed in
section VII.D.5. below).
This proposed approach differs from the ANPRM approach, which
specified that non-hazardous secondary materials, such as used tires
collected at tire dealerships and transferred to a third party would
not be considered discarded if, for example, they were managed pursuant
to state tire collection programs. As previously discussed, comments
received from the states suggested that non-hazardous
[[Page 31875]]
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 to be solid wastes (e.g., scrap tires)
unless/until they are processed into non-waste fuel products. However,
the Agency seeks comment on whether the approach described in the ANPRM
would be more appropriate. In submitting comments supporting a broader
approach, we request that commenters provide the basis for why such
secondary materials have not been discarded.
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. (Note: As indicated above, the Agency is
proposing a petition process to allow any person to demonstrate that
non-hazardous secondary material fuels transferred to another party
outside the control of the generator have not been discarded, and thus,
are not a solid waste. See section VII.D.5. below for details on the
petition process.)
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 final rule.\55\ (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.
---------------------------------------------------------------------------
\55\ U.S. EPA An Assessment of Environmental Problems Associated
With Recycling of Hazardous Secondary Materials (Docket
EPA-HQ-RCRA-2002-0031-0355), January 2007.
---------------------------------------------------------------------------
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,\56\ and because they
provide an ideal breeding ground for mosquitoes and rodents. It is
estimated that 275 million tires remained in stockpiles across the
United States in 2003 and that approximately 290 million new scrap
tires are generated each year.\57\ Other non-hazardous secondary
materials destined for use as a fuel that were accumulated, but then
discarded have similarly contributed to the overall solid waste
management problem.\58\
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\56\ See 51 FR 21054, June 10, 1986.
\57\ U.S. EPA Scrap Tire Clean-Up Handbook: A Resource for Solid
Waste Managers Across the United States EPA-905-B-06-001, January
2006.
\58\ U.S. EPA Description of Non-Hazardous Secondary Material
Events that Resulted in Adverse Environmental Impacts (Docket
EPA-HQ-2008-0329), September 2009.
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As discussed in the DSW final rule,\59\ 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.
---------------------------------------------------------------------------
\59\ U.S. EPA A Study of the Potential Effects of Market Forces
on the Management of Hazardous Secondary Materials Intended for
Recycling (Docket EPA-HQ-RCRA-2002-0031-0358), November
2006. While the study focuses on hazardous secondary materials, the
underlying economic theory would apply equally to non-hazardous
secondary materials.
---------------------------------------------------------------------------
However, this pattern of discard does not hold true for materials
that are more commodity-like than waste like, such as traditional fuels
and non-hazardous secondary materials used as ingredients in
manufacturing processes that utilize combustion systems. As previously
discussed, traditional fuels have been burned historically as fuels and
have been managed as valuable products, are considered unused products
and therefore are not solid wastes. Also see discussion in section
VIII.D.6.b below that explains EPA's rationale as to why ingredients
that are not managed within the control of the generator are determined
not to be discarded.
In some cases, a non-hazardous secondary material may be
transferred to another entity to be burned for energy and still more
closely resemble a product than a waste, despite the fact it is neither
a traditional fuel nor has it been processed into a legitimate fuel. In
such cases, the Agency has included a petition process where a person
may petition EPA for a case-specific determination that the non-
hazardous secondary materials are not discarded and therefore not solid
wastes. See section VIII.D.5. for a more detailed discussion of the
petition process.
In the proposed regulatory language, EPA is not specifying whether
particular materials are or are not solid wastes. However, as discussed
previously, whole tires that originate from tire dealerships and
automotive shops (that are overseen by state tire collection oversight
programs) would be considered to be discarded unless and until they are
processed into TDF that has removed the steel belts and wire, or a
case-specific non-waste determination petition is granted. EPA believes
tires that are collected from tire dealerships and automotive shops,
especially if overseen by a state tire collection oversight program
that collects fees and regulates the process under state ``waste''
authorities, generally meet the plain meaning of discard; such
materials can be considered as having been ``discarded'' by the
original owner of the tire.
This is further supported by the fact that many state agencies
regulate tires as wastes, either pursuant to their solid waste
authority or pursuant to statutory authority that specifically
addresses the management of used tires (some use both authorities). The
level of regulation ranges from state to state, but many states
directly regulate used tires, for example, with storage requirements,
such as speculative accumulation and fire suppression requirements, up
until their final use as a fuel in combustion units. In addition, many
states subsidize certain end-use applications, suggesting that used
tires, even if managed pursuant to state oversight programs, are
discarded materials once they are generated at tire collection points,
such as tire dealerships.
3. Non-Hazardous Secondary Materials Used as Ingredients in Combustion
Units
Non-hazardous secondary materials used as ingredients in combustion
units would not be solid wastes provided they satisfy the legitimacy
criteria discussed in section VIII.D.6.b below. We are not
differentiating between ingredients that are used within the control of
the generator from those that are not since we believe 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
[[Page 31876]]
should not be considered discarded provided they satisfy the legitimacy
criteria.
4. Non-Hazardous Secondary Materials Processed Into Non-Waste Fuel/
Ingredient Products
EPA is proposing that legitimate fuel or ingredient products that
result from the processing of discarded non-hazardous secondary
materials are not solid wastes. Of course, the legitimacy criteria
specified in section VII.D.6. below must be met. Because the fuel/
ingredient products meeting these legitimacy criteria are, in effect,
reclaimed products from a recycling process, EPA considers such
materials to be new products that have not been discarded and therefore
are not solid wastes. Until the non-hazardous secondary materials have
been processed into a non-waste fuel or ingredient product meeting the
legitimacy criteria, the discarded non-hazardous secondary material are
considered solid wastes and would be subject to all appropriate
federal, state and local requirements.
Similar to the proposed approach for non-hazardous secondary
materials that are used as fuels within the control of the generator,
we are not proposing to require facilities that combust non-hazardous
secondary materials that have been processed into non-waste fuel/
ingredient products to notify EPA as part of this proposal. We believe
this would be duplicative to the CAA 112 regulatory notification and
record keeping requirements being proposed for boilers and process
heaters today. That proposal would require specific notifications from
sources subject to the standards including notifications of compliance
status, test results and descriptions of applicable air pollution
control devices. In addition, for sources that have made a non-waste
determination under 40 CFR 241.3, the proposal for boilers and process
heaters requires that records be maintained which document how the fuel
meets legitimacy criteria and the definition of processing as
appropriate. However, we solicit comment on this and specifically
request comment on whether the Agency should require, at least
initially, if not on a periodic basis, notification and recordkeeping
under RCRA by those persons who both generate or combust non-hazardous
secondary materials that are not solid wastes, including documentation
that explains or provides the basis for the non-hazardous secondary
material meeting the legitimacy criteria, and thus, is not a solid
waste.
a. Proposed Definition of Processing. The proposed definition of
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.
While today's rule proposes a definition of operations that constitute
processing, the level of processing that is necessary to render a
discarded non-hazardous secondary material into a non-waste product is
dependent on the material. We note, however, that discarded non-
hazardous secondary materials that are not processed or minimally
processed (as discussed above i.e., processed in a manner that does not
meet our definition of processing) would be considered a waste-derived
fuel or ingredient, and thus a solid waste, no matter how legitimate
their use is as a fuel or ingredient. In addition, non-hazardous
secondary materials that are processed and used as fuels or ingredients
in combustion units, but do not meet the legitimacy criteria, would be
considered to be sham use and thus a solid waste. The Agency seeks
comment on the proposed definition of processing, including whether
such definition provides sufficient clarity that it can be implemented
under the self-implementing provision in today's proposed rule (this
approach is discussed further in this section).
b. Rationale for Processing Discarded Material Into Non-Waste
Products. Today's proposed rule identifies circumstances where
materials that have been discarded in the first instance, and are thus
solid wastes, can be rendered into new non-waste products through
legitimate processing consistent with the definition outlined above.
The basic principle that must be satisfied is that the discarded
material must undergo sufficient processing that produces either a new
fuel or ingredient product. The new product must have properties that
provide the end user the assurance that the material consistently
satisfies the fuel/ingredient product criteria based on the type of
combustion unit the secondary material is used in (e.g., as a fuel in a
boiler or as an ingredient in a cement kiln).
The principle that products can be produced from a waste is common
to industrial processes and commercial recycling markets. Newspaper and
aluminum cans discarded by consumers are then collected, sorted and
processed into new recycled paper and aluminum products that are not
considered solid waste. Collected plastic is generally sent to a
reclaimer, who will sort, grind, and clean the plastic. The cleaned and
sorted plastic is sent to a manufacturer who will use it as feedstock.
These are clear examples where discarded materials are processed into
legitimate non-waste products.
Recycled fuel products are no different from recycled paper and
aluminum cans with respect to discard. If non-hazardous secondary
materials that are discarded by being abandoned, disposed of or thrown
away, but are later collected, segregated, and processed into a
homogenous fuel product that is marketed and sold as a valuable
commodity and are no different that traditional fuels used today, then
they should no longer be considered solid waste, just as recycled paper
is not a solid waste.
There are other examples beyond consumer recycled materials where
discarded materials are processed into new products. These examples
include specific exclusions from the hazardous waste regulations, which
provide insight into how secondary materials can be processed into
valuable products. For instance, discarded spent solvents are commonly
recycled via distillation into legitimate, newly usable solvents. These
regenerated solvents are clearly considered to be products, not wastes.
See 50 FR 634, January 4, 1985. Scrap metal that has been discarded is
another example of a non-hazardous secondary material that is processed
into a non-waste. (EPA specifically exempted scrap metal that has been
processed from the definition of solid waste (see 261.4(a)(13).) For
scrap metal to be considered ``processed,'' it must have been
``manually or physically altered to either separate it into distinct
materials to enhance the economic value or improve the handling of
these materials. Processed scrap metal includes * * * scrap metal which
has been baled, shredded, chopped, crushed, flattened, cut, melted, or
separated by metal type (i.e. sorted) * * * '' (see 40 CFR
261.1(c)(10)). We believe this is a good example of where the level of
processing necessary to convert a waste material to a non-waste
material is dependent on the material itself.
[[Page 31877]]
Off-spec used oil is another example of a secondary material which
we believe is discarded, but can be processed into a non-waste product
(see section VII.C.5.d.). Once used oil is determined to be on-spec, we
do not view it to be a solid waste since it is no longer regulated
under the used oil management standards of 40 CFR part 279 and can be
managed as a traditional fuel.\60\
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\60\ Once used oil is claimed to be on-spec and the marketer
complies with the requirements for analysis and record retention,
notification, and record tracking shipment to on-specification
burners, it is no longer subject to the management standards.
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One of the difficulties the Agency faces with determining whether
non-waste fuels can be processed from discarded materials is that the
combustion of materials is commonly associated with disposal, whether
it is waste disposal in incinerators or waste disposal in energy
recovery devices (e.g., municipal waste combustors that recover energy
by producing electricity). Therefore, many equate the burning of any
secondary material to discard, as some commenters have argued. This
approach does not take into account that the secondary material has in
fact been produced in a process that uses the discarded material as a
feed stream to produce a safe fuel product that is a valuable commodity
and sold in the marketplace no differently than traditional fuels. We
view such an approach being a common sense interpretation of the
statutory definition of solid waste under RCRA. Again, fuel produced
from discarded non-hazardous secondary materials should not be
considered solid waste just as recycled newspapers are not considered
solid waste, since the material has been processed or ``manufactured''
into a new fuel product. The use of these energy containing secondary
materials can be an effective substitute for traditional fuels. Such
materials can provide economic efficiencies due to lower overall
resource use, while still protecting human health and the environment.
Another difficulty the Agency faces is the misconception that
discarded material that is burned, either for destruction or energy
recovery, by definition has high levels of contaminants. We do not
believe this is the case for many of the non-hazardous secondary
materials we are assessing. The manner in which the secondary material
is managed is a key factor that determines discard (abandoned, disposed
of, or thrown away); contaminant levels are part of that consideration,
such that if a secondary material has high levels of contaminants, it
would be considered sham recycling, which is one type of way a material
can be ``disposed of.'' Clean materials can be discarded just like
contaminated materials can. This, combined with the perception that
combustion of secondary materials is equated to discard, results in the
perception that there needs to be a very high threshold with respect to
the level of processing that must take place to render a discarded
material into a non-waste product. We believe, however, that a strict,
but appropriate level of processing is necessary which is reflected in
the processing definition outlined in today's proposed rule. We also
note that in order for any secondary material to be considered a non-
waste fuel, it must contain contaminants at levels that are comparable
to traditional fuels in use today.
To put this into context, we believe it would help to include
examples of processing of discarded non-hazardous secondary materials--
those which we believe are clearly adequate processing to render the
material into a non-waste fuel or ingredient product in accordance with
the definition of processing in Sec. 241.2 and those that do not.
c. Examples of Adequate Processing
Examples of non-hazardous secondary materials that have been
discarded, but can be processed into a non-waste fuel or ingredient
product include, but are not limited to, used tires, solid waste
processed in gasifiers to produce synthesis gas, off-spec used oil
(discussed above), sewage sludge processed into pellets, painted wood,
and coal fines and biomasss processed into pellets with the impurities
removed. Each of these are described in more detail below.
Used Tires. EPA views used tire processers as facilities that take
solid waste that can produce valuable non-waste products. Used tires
undergo various processing steps to meet certain specifications that
are necessary for a particular end use, whether it be for use as TDF,
or for use in other non-combustion applications, such as ground rubber
applications (e.g., for use in sidewalks).\61\ Used tire processors
typically enter into contracts with the end users of these tire derived
products that specify that the processed tires meet certain
specifications (i.e. size of tire pieces, wire content) to ensure the
material consistently meets the needs of that particular end use. This
is common for TDF.
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\61\ As discussed previously, today's proposal only addresses
non-hazardous secondary materials that are used in combustion
process, and not in other applications.
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Used tires are often processed by shredding and removing dirt or
other contaminants to produce TDF. Processing scrap tires into TDF can
involve two physical processing steps: chipping/shredding (usually
ranging in size from 1 to 4 inches) and (in some cases) metal removal,
with the amount of metal in TDF varying depending on how much of the
tires have been processed. For some units, such as cement kilns, metal
in the wire can be used in the manufacturing process.\62\ However, most
other units benefit from TDF that has been processed to minimize the
amount of metal and improve heating efficiency.
---------------------------------------------------------------------------
\62\ We note that most cement kilns use whole tires as fuels, as
opposed to TDF chips, because their process does not require the TDF
to be in the form of small chips to use it as a fuel, and does not
require removal of the metal (since they use the metal as an
ingredient). Under today's proposal, cement kilns that burn whole
tires would be subject to the CAA section 129 requirements, unless
the tires were processed to produce TDF or a non-waste determination
was issued by EPA regarding the burning of whole tires.
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EPA considers used tires that have been shredded/chipped into TDF
and with the metal belts or wire removed, to meet the definition of
processing discussed above. Thus, used tires that have been shredded/
chipped without the removal of the metal belts or wire would not be
considered to have been sufficiently processed, and any TDF that is
generated in such a fashion would be considered a waste-derived fuel.
Removing the metal belts or wire will help reduce metal contaminants in
the emissions and ash, and may improve the burning characteristics for
some uses of the TDF. As is the case for all types of solid fuel,
proper characterization of the size and composition of TDF are
important factors that combustion unit operators assess to determine if
TDF is a suitable fuel for their specific combustion unit design.\63\
For example, ASTM Standard 6700-01, describes standard practices for
using TDF as fuels, and also specifies sampling and analysis methods
and procedures that apply to TDF that cover composition, and fuel
characterization analyses. The standards also address the size of the
tire pieces
[[Page 31878]]
and metal content in order to optimize combustion. The standards for
metals range from wire free, to relatively wire free to no wire
removed. To meet the processing definition for combusting scrap tires,
those materials should have the metal belts or wire removed consistent
with the ASTM standard for relatively wire free. However, as noted in
footnote 62, certain types of combustion units, such as cement kilns
also use the wire in the tire as an ingredient to producing cement
clinker. Therefore, we are soliciting comment on whether to adopt an
additional definition for processing that would not require the metal
belts or wire to be removed for those combustion units, such as cement
kilns where the metals serve a useful purpose in the process of making
clinker.
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\63\ With regard to the legitimacy criteria discussed in Section
VII.B.3, the heating value of scrap tires (12,000 Btu/lb to 16,000
Btu/lb) is the highest of all secondary materials, except used oil
(17,800 Btu/lb), and higher than typical coal values. Contaminants
of potential concern have been measured for both materials: Mercury
is below detectable levels for TDF, and average 0.11 ppm for coal;
barium is also below detectable levels in TDF; cadmium, chromium,
lead and manganese levels are comparable; zinc is present in higher
concentrations in TDF than coal.
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Syngas Produced from Gasification of Solid Waste. Although not
specifically discussed in the ANPRM, synthesis gas (or syngas as it is
commonly referred) produced from the gasification of solid waste is a
material that can also meet the requirements of a fuel product produced
from processing discarded non-hazardous secondary materials, provided
the syngas has been adequately processed to remove contaminants.
A variety of solid waste streams are available for conversion to
energy, including conversion through gasification technologies.
Gasification is a chemical production process that converts
carbonaceous material into a synthesis gas that can be used for energy
production (or as a building block for other chemical manufacturing
processes). In general, gasification systems are designed to react
carbon-containing materials and steam at high temperatures to produce a
synthesis gas composed mainly of carbon monoxide and hydrogen.
Gasification systems include two basic components. The first is the
reactor or gasifier and the second is a gas cleanup or polishing system
used to remove various contaminants from the raw (un-polished)
synthesis gas. At a minimum, syngas cleanup generally includes removal
of sulfur and metals. These two components work together producing a
synthesis gas that can be used as a fuel in a combustion turbine.
Other Non-Hazardous Secondary Materials That are Processed. Sewage
sludge can be processed into fuel pellets by biosolid drying that
destroys pathogens and bacteria. Specifically, raw sewage sludge is
moved to digesters where microbes decompose the organic solids. The
resulting biosludge is pressed with wide fabric belts into sheets and
water is removed. This sludge cake is then baked in ``tumble-drying''
ovens that destroy the pathogens and bacteria, removing any remaining
water, and rotate the sludge into the final pelletized product.
Although we consider this to meet our definition of processing, the
fuel pellets would still have to meet the legitimacy criteria to be
considered a non-waste fuel. As discussed in section VII.C.5.f., we
generally believe sewage sludge itself has contaminant levels that are
higher than traditional fuels in use today, and thus would not satisfy
the contaminant part of the legitimacy criteria.
Wood with lead-based paint that is shaved to remove the lead-based
paint is another example of processing a discarded non-hazardous
secondary material to produce a legitimate product; in this case, the
underlying wood can be used as a non-waste, traditional fuel, and the
lead-based paint can be safely disposed of or sent for lead recovery.
Coal fines, biomass, and other materials can be mixed and processed
into pellets (or other forms) that have the consistency and handling
characteristics of coal. For example, the K-Fuel process employs heat
and pressure to transform coal into a cleaner, more efficient fuel by
removing water and polluting impurities, thus increasing combustion
efficiency. When applied to different lower-rank sub-bituminous and
lignite coals, the K-Fuel process removes, on average, almost 70
percent of the coal's elemental mercury.\64\
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\64\ Evergreen Energy Company Web site. http://www.evgenergy.com/k_fuel.php.
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In the examples above, we view the non-hazardous secondary
materials to have been sufficiently processed to produce a fuel product
that would not be a solid waste if it met the legitimacy criteria
specified in section VII.D.6; however, as noted previously, the non-
hazardous secondary materials would be considered solid wastes prior to
processing and would be subject to appropriate federal, state, and
local requirements.
d. Examples of Minimal Processing That Would Not Meet Proposed
Definition of Processing.
Sewage sludge, and other non-hazardous secondary materials that
have a high moisture content can be dewatered to effectively increase
the Btu/lb of the material prior to burning as a fuel. We do not
consider dewatering, by itself, to meet our definition of adequate or
sufficient processing. For example, dewatering sewage sludge would
likely be required processing as part of normal waste management
activities (e.g., prior to landfilling, or prior to burning the sludge
for disposal in an incinerator). As such, we do not view this to be
sufficient processing to convert discarded materials into non-waste
fuel products.
Whole tires that are, for example, removed from waste tire piles or
collected and managed pursuant to state tire collection programs, that
are marketed to cement kilns or other industrial furnaces and used as
fuels absent processing into what we consider processed TDF would be
another example of insufficient processing to produce a non-waste fuel.
However, we are also requesting comment on whether discarded materials
that have been collected and that otherwise have not been processed (as
defined in this proposal), should not be considered solid wastes if
they are indistinguishable in all relevant aspects from a product
(again, of course they must be legitimate), and such whole tires are
marketed to cement kilns or other industrial furnaces and are used as
fuels. For example, if a discarded non-hazardous secondary material
that has not been processed based on our proposed definition can be
shown to be no different than other non-waste fuels in use today, could
that secondary material be considered a non-waste fuel/ingredient
product even though it was discarded in the first instance? Commenters
should provide the rationale supporting this approach.
e. Alternative Approach for Addressing Non-Hazardous Secondary
Materials That Are Processed Into Non-Waste Fuels or Ingredients
As proposed, this particular provision is self-implementing, where
each person would make the determination whether or not the non-
hazardous secondary material has been ``sufficiently processed'' to
produce a non-waste fuel or ingredient. The Agency believes that such
an approach is appropriate considering the large number of non-
hazardous secondary materials that are generated that may be processed
into a non-waste fuel or ingredient. However, there is also the
question of whether the definition of processing is sufficiently clear
so that the regulated community can appropriately apply the definition.
Therefore, the Agency is also considering and requests comment on
whether this particular provision should be addressed through the non-
waste determination process under Sec. 241.3(c) (rather than as a
self-implementing provision), such that the Agency would
[[Page 31879]]
consider and evaluate each type of processing activity on a case-by-
case basis and approve it before the processed fuel or ingredient would
be considered a non-waste fuel or ingredient. We also request comment
on whether the Agency should promulgate a general rulemaking provision,
similar to 40 CFR 260.20,\65\ that would allow EPA to evaluate various
processing activities generally, as opposed to on a site-by-site basis,
such that the Agency would identify in the regulations which processing
activities would produce a non-waste fuel or ingredient. While such an
approach would put a much greater burden on EPA, it would also provide
greater certainty to the regulated community as to which non-hazardous
secondary materials have been sufficiently processed to produce a non-
waste fuel or ingredient.
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\65\ 40 CFR 260.20 allows any person to petition the
Administrator of EPA to modify or revoke any provision of the
hazardous waste rules. A similar ``general rulemaking authority''
could also be promulgated under RCRA subtitle D.
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5. Non-Waste Determination Process
This proposal would establish a non-waste determination process
that provides persons with an administrative process for receiving a
formal determination from EPA that non-hazardous secondary material
fuel that has not been managed within the control of the generator has
not been discarded, and is indistinguishable in all relevant aspects
from a fuel product, and thus, is not a solid waste when used as a fuel
in a combustion unit. For example, a facility that is not affiliated
with the generator of the non-hazardous secondary material fuel (and
thus is ``outside the control of the generator'') can petition EPA to
determine that the secondary material they burn as fuel is not a solid
waste because the material has not been discarded and is
indistinguishable in all relevant aspects from a fuel.
This proposed process would be voluntary. The non-waste
determination process would require the petitioner to request such a
case-specific non-waste determination from EPA. Any petition that is
submitted to EPA that requests that the non-hazardous secondary
material be considered a non-waste fuel would need to demonstrate that
the material has not been discarded in the first instance, as well as
describe how the non-hazardous secondary material satisfies the five
proposed criteria outlined in Sec. 241.3(c).
To demonstrate that the non-hazardous secondary material used a
fuel has not been discarded in the first instance, the petitioner would
need to demonstrate that the non-hazardous secondary material was not
initially abandoned or thrown away by the generator of the material. It
may not always be clear whether secondary materials would be considered
to be discarded in the first instance. For example, secondary material
retrieved from a landfill or tires retrieved from waste tire piles
would be considered materials that are discarded in the first instance.
We may not, however, consider used tires collected from tire
dealerships and managed pursuant to state tire collection programs to
be discarded in the first instance, depending on how they are managed.
After demonstrating that the material has not been discarded in the
first instance, the petitioner must then demonstrate that the material
is indistinguishable in all relevant aspects from a fuel product by
showing that it satisfies the following five criteria: (1) Whether
market participants handle the non-hazardous secondary material as a
fuel rather than a waste; (2) whether the chemical and physical
identify of the non-hazardous secondary material is comparable to a
commercial fuel; (3) whether the capacity of the market would use the
non-hazardous secondary material in a reasonable timeframe; (4) whether
the constituents in the non-hazardous secondary material are released
to the air, water or land from the point of generation to the
combustion of the secondary material at levels comparable to what would
otherwise be released from traditional fuels; and (5) other relevant
factors.
Specifically, the first criterion for a non-waste determination is
whether market participants handle the non-hazardous secondary material
as a fuel rather than a solid waste. This would include consideration
of likely markets for the non-hazardous secondary materials used as
fuels (e.g., based on the current positive value of the secondary
material, stability of demand, and any contractual arrangements). This
evaluation of market participation is a key from a fuel products
standpoint rather than as negatively-valued wastes.
The second criterion for a non-waste determination is the chemical
and physical identity of the non-hazardous secondary material and
whether it is comparable to commercial fuels. This ``identity
principle'' is a key factor that the Court of Appeals for the DC
Circuit cited in Safe Foods in determining whether a material is
indistinguishable from a product. It is important to note that the
identity of a material can be comparable to a fuel product without
being identical. However, to qualify for a non-waste determination, any
differences between the non-hazardous secondary material in question
and the commercial fuel should not be significant from a health and
environmental risk perspective.
The third criterion for making a non-waste determination is the
capacity of the market to use the non-hazardous secondary material as a
fuel in combustion units in a reasonable time frame and ensure that it
will not be abandoned. For the non-waste determination, a person will
need to provide sufficient information about the non-hazardous
secondary material and the market demand for it to demonstrate that
such non-hazardous secondary materials will in fact be used as a fuel
in combustion units in a reasonable time frame. EPA is not proposing to
explicitly define ``reasonable time frame'' because such time frames
could vary according to the non-hazardous secondary material and
industry involved, and therefore determining this time frame should be
made on a case-specific basis. However, the Agency solicits comments on
whether it should propose a specific timeframe as part of this
criterion.
The fourth criterion for a non-waste determination is whether the
constituents in the non-hazardous secondary material fuels are released
to the air, water, or land water at concentrations comparable to what
would otherwise be released from traditional fuels. The process that
the Agency would be considering would encompass the point of generation
of the material, management and storage prior to use through combustion
and the end use of the secondary material. The Agency believes that to
the extent the constituents are an extension of the original secondary
material, their release to the environment is a possible indicator of
risk and discard. The Agency recognizes that combustion using
traditional fuels also result in a certain level of release and, in
evaluating this criterion, would not deny a non-waste determination if
the increase in release is not significant from either a statistical or
a health and environmental risk perspective. However, when relatively
high levels of the constituents in the non-hazardous secondary material
are released to the environment in looking from the point of generation
of the secondary material to its combustion, then that may be an
indication that the non-hazardous secondary material is not being
handled as a commercial fuel.
The fifth and final criterion for a non-waste determination
includes any other relevant factors that demonstrate that the non-
hazardous secondary material is
[[Page 31880]]
not a solid waste. This catch-all criterion is intended to allow the
person to provide any case-specific information considered important
and relevant in making the case that its non-hazardous secondary
material used as a fuel in a combustion unit is not a solid waste.
Any non-hazardous secondary material used as a fuel must also
satisfy our proposed legitimacy criteria in order to be considered a
non-waste fuel. In order for a non-waste determination to be granted,
the applicant must also therefore show that the material satisfies the
proposed legitimacy criteria. We note that there is overlap between the
legitimacy criteria and the five petition criteria discussed above.
Thus, the same rationale used to demonstrate that the non-hazardous
secondary material contains contaminants at levels comparable to
traditional fuels in combination with the argument that such secondary
material contains meaningful heating value can be used to satisfy
petition criterion number 2 above. Similarly, the rationale used to
demonstrate that the secondary material contains contaminants at levels
comparable to traditional fuels can be used as the rationale for
petition criterion number 4 above.
Non-Waste Determination Process. EPA is proposing that the process
for the non-waste determination be similar to that for the solid waste
variances found in Sec. 260.33, except that such requests can only be
addressed by EPA. In order to obtain a non-waste determination, a
facility that manages non-hazardous secondary materials that would
otherwise be regulated must apply to the Regional Administrator per the
procedures described in proposed Sec. 241.3(c). The application must
address the relevant criteria discussed above. The Regional
Administrator for the EPA Region where the facility combusting the
material will evaluate the application and issue a draft notice
tentatively granting or denying the application. Notification of this
tentative decision will be provided by newspaper advertisement or radio
broadcast in the locality where the recycler is located. The Regional
Administrator will accept comment on the tentative decision for at
least 30 days, and may also hold a public hearing upon request or at
his discretion. The Regional Administrator will issue a final decision
after receipt of comments and after the hearing (if any).
The Agency recognizes that many states have programs in place to
make such determinations under state statute, and EPA would support the
states to also make such determinations--that is, allow the states to
act on behalf of EPA in making such case-specific determinations.
Therefore, we are specifically soliciting comment as to whether the
Agency can (and if so) should allow a state, for example, under a
state's beneficial use program, to also make case-specific
determinations without EPA's approval. We note that under the Revisions
to the Definition of Solid Waste Rule (70 FR 64668), a non-waste
determination may be granted by the state if the state is either
authorized for this provision or if the following conditions are met:
(1) The state determines the hazardous secondary material meets the
applicable criteria for the non-waste determination; (2) the state
requests that EPA review its determination; and (3) EPA approves the
state determination. Should EPA allow this type of non-waste
determination process in determining whether or not such non-hazardous
secondary material is or is not a solid waste?
We note that states may submit these determinations on behalf of
the petitioner for EPA to evaluate under the proposed non-waste
determination criteria in proposed Sec. 241.3(c)(1). If EPA determines
through the petition process that the secondary material in the state
determinations are not solid waste, then they would not be subject to
the CAA section 129 standards, but instead would be subject to the CAA
section 112 standards. Conversely, EPA may make a non-waste
determination for non-hazardous secondary materials under the Federal
regulations that still remains subject to the state solid waste
regulations.
After a formal non-waste determination has been granted, if a
change occurs that affects how a non-hazardous secondary material meets
the relevant criteria contained in proposed Sec. 241.3(c)(1), persons
must re-apply to the Regional Administrator for a formal determination
that the non-hazardous secondary material continues to meet the
relevant criteria and is not discarded and therefore, not a solid
waste.
6. Legitimacy Criteria
a. Legitimacy Criteria for Fuels. This notice is proposing that
non-hazardous secondary materials used as fuels in combustion units
must meet the legitimacy criteria specified in proposed Sec.
241.3(d)(1) in order to be considered a non-waste fuel.\66\ To meet the
fuel legitimacy criteria, the non-hazardous secondary material must be
handled as a valuable commodity, have a meaningful heating value and be
used as a fuel in a combustion unit that recovers energy, and contain
contaminants at levels comparable to those in traditional fuels which
the combustion unit is designed to burn. These criteria are discussed
below.
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\66\ We note, however, that non-hazardous secondary materials
that satisfy the legitimacy criteria would still be considered a
solid waste if they were discarded (abandoned, disposed of, or
thrown away), unless they were processed into legitimate non-waste
fuel products.
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Manage as a Valuable Commodity. We are proposing to require that
non-hazardous secondary materials used as fuels be managed as valuable
commodities, including being stored for a reasonable timeframe. See
proposed 241.3(d)(1)(i). Where there is an analogous fuel, the
secondary material used as a fuel must be managed in a manner
consistent with the management of the analogous fuel or otherwise be
adequately contained so as to prevent releases to the environment.
Where there is no analogous fuel, the secondary material must be
adequately contained so as to prevent releases to the environment. An
``analogous fuel'' is a traditional fuel for which the non-hazardous
secondary material substitutes and which serves the same function and
has similar physical and chemical properties as the non-hazardous
secondary material.
With respect to how long a non-hazardous secondary material can be
stored before the material is not considered to be ``managed as a
valuable commodity,'' we are not specifying a specific timeframe, but
requiring that the non-hazardous secondary material be stored for a
reasonable timeframe. EPA is not proposing to specifically define
``reasonable timeframe'' because such timeframes could vary according
to the non-hazardous secondary material and industry involved. On the
other hand, the Agency also recognizes that with this flexibility, also
comes the potential for non-hazardous secondary materials to be over-
accumulated, which has been demonstrated to be a problem with hazardous
secondary materials. It also could raise questions from an
implementation standpoint since the question of ``reasonable
timeframe'' may differ depending on each person's perspective. Thus,
while we think that ``reasonable timeframe'' is an appropriate
standard, considering the large number of non-hazardous materials that
may be subject to this rule, and is flexible enough to allow
accumulation to be cost-effective, the Agency solicits comment on
whether it should define a specific timeframe or range of timeframes as
part of this criterion. For example, one approach is to adopt the
speculative accumulation provision (see 40 CFR 261.1(c)(8)) that
[[Page 31881]]
is defined in the hazardous waste regulations for determining how much
secondary material must be recycled within a specific timeframe before
the material is considered to have been discarded. Another approach
would be for the Agency to determine how long fuels are generally held
before they are used, and adopt such a standard. To this end, the
Agency specifically solicits comment on the time period or range of
time periods that fossil fuels are typically held before they are used
as a fuel.
We are proposing that this legitimacy factor apply to both the
nonhazardous secondary materials burned under the generator-controlled
exclusion, as well as to materials that have been processed into a
product fuel. For the generator-controlled provision, the non-hazardous
secondary material must be managed as a valuable commodity upon
generation through its end use as a fuel--that is, from the initial
point of generation of the non-hazardous secondary material to the time
it is actually burned as a fuel either on-site or at another facility
that is under the control of the generator. For non-hazardous secondary
materials that are processed to produce a fuel product, the processed
material must be managed as a valuable product from the point that it
is first produced through its end use. As noted previously, before the
fuel product is produced, the non-hazardous secondary materials are
solid wastes, and must comply with any federal, state, or local
requirements.
This criterion requires that the non-hazardous secondary material
be managed appropriately before its end use as a fuel. In EPA's view, a
company will value non-hazardous secondary materials used as fuels that
provide an important contribution and, therefore, will manage those
secondary materials in a manner consistent with how it manages
traditional fuels. If, on the other hand, a company does not manage the
non-hazardous secondary material as it would a traditional fuel, that
behavior may indicate that the non-hazardous secondary material is
being discarded.
This factor addresses the management of non-hazardous secondary
materials used as fuels in two distinct situations. The first situation
is when the non-hazardous secondary material is analogous to a
traditional fuel that otherwise could be burned. In this case, the non-
hazardous secondary material must be managed prior to use as a fuel
similarly to the way traditional fuels are managed or otherwise must be
adequately contained so as to prevent releases to the environment. For
example, for liquid non-hazardous secondary materials that are used as
a fuel that are similar to liquid fossil fuels, the Agency would expect
that such non-hazardous secondary materials would be managed in tanks
or similar type devices to control the release of the secondary
materials. The Agency would also expect that the types of controls that
would typically be part of a tank or similar type device for fossil
fuels would also be part of any tank system that is used to manage non-
hazardous secondary material. The second situation the factor addresses
is the case where there is no analogous traditional fuel that otherwise
could be burned. This could be either because the process is designed
around a particular non-hazardous secondary material fuel, or because
physical or chemical differences between the secondary material and the
traditional fuel are too significant for them to be considered
``analogous.''
Non-hazardous secondary materials that have significantly different
physical or chemical properties when compared to traditional fuels
would not be considered analogous even if they serve the same function
because it may not be appropriate to manage them in the same way. In
this situation, the non-hazardous secondary material would have to be
adequately contained so as to prevent releases to the environment for
this factor to be met. A non-hazardous secondary material is
``adequately contained'' if it is stored in a manner that both
adequately prevents releases or other hazards to human health and the
environment, considering the nature and toxicity of the secondary
material.\67\ We note that this definition of ``contained'' differs
slightly from the description used in the DSW final rule preamble,
which defined ``contained'' to mean placing the material in a unit that
controls the movement of that material out of the unit.\68\ We believe
this slightly revised definition is appropriate because of the wide
range of non-hazardous secondary materials that are used as fuels, some
of which may not need to be ``contained'' in a dedicated storage unit.
However, the Agency solicits comment on this aspect of this criterion,
including whether a ``contained'' standard, which is a general
performance standard, provides sufficient direction to the regulated
community. Other approaches that EPA is considering is whether to
provide a more specific definition of ``contained'' in the rules, or
whether the Agency should include specific technical standards or limit
the types of units that such non-hazardous secondary materials may be
managed, in order for them to be considered to be ``managed as a
valuable commodity.''
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\67\ Examples of materials that are adequately contained would
include liquid fuels stored in a tank. Examples of other hazards
include tire fires resulting from improper storage of scrap tires
(see section VII.D.2.).
\68\ See October 30, 2008; 73 FR 64681.
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The definition of legitimacy in the DSW final rule required that
this factor be considered, but not necessarily met. Under that rule,
the Agency was aware of situations in which the contained factor is not
met, but the secondary material is still being managed as a valuable
commodity. One example given was a hazardous secondary material that is
a powder-like material that is shipped in a woven super sack and stored
in an indoor containment area that has an analogous raw material that
is shipped and stored in drums. A strict reading of this factor may
determine that the hazardous secondary material is not being managed in
a manner consistent with the analogous secondary material even if the
differences in management are not actually impacting the likelihood of
a release.
This proposal includes a requirement for analogous raw materials to
``* * * be managed in a manner consistent with the analogous fuel or
otherwise be adequately contained to prevent releases to the
environment'' (Sec. 241.3(d)(1)(i)(B)). This is similar to the DSW
final rule provision, but is also different in that the requirement in
today's proposal has to be met (not just considered). Thus, today's
proposal would require that this factor be met (not optional) because
we believe that in all situations where the factors in Sec.
241.3(d)(1)(i) are not met, the material would be discarded.
Meaningful Heating Value and Use as a Fuel. We are proposing that
non-hazardous secondary materials have a meaningful heating value and
be used as a fuel in a combustion unit that recovers energy. See
proposed Sec. 241.3(d)(1)(ii). We are proposing the requirement for
the non-hazardous secondary material to be used as a fuel in a
combustion unit that recovers energy for two reasons. First, we want to
be clear that non-hazardous secondary materials having a meaningful
heating value, but that are not burned in a combustion device
specifically for energy recovery (e.g., are burned in an incinerator)
are solid wastes.\69\ We recognize that incinerators and similar type
units may accept non-hazardous secondary materials with a meaningful
heating value and use that
[[Page 31882]]
fuel value to limit the other types of fuels it needs to burn. However,
the intent of an incinerator, and similar type units, is to destroy
wastes, and thus, such non-hazardous secondary materials that are
burned in such units are considered discarded, and thus a solid waste.
Second, since these provisions are intended to apply only to non-
hazardous secondary materials that have a specific end use (in this
case, use as a fuel in an energy recovery device), we believe it
appropriate to highlight that point by adding that restriction directly
to this legitimacy criteria.
---------------------------------------------------------------------------
\69\ We note that incinerators that burn waste for purposes of
destruction that have a waste heat recovery boiler would not be
considered a combustion unit that satisfies this legitimacy
criterion.
---------------------------------------------------------------------------
With respect to the requirement that the non-hazardous secondary
material have a meaningful heating value, in the context of the
hazardous waste regulations, EPA addressed this concept--that is,
whether a hazardous secondary material has an adequate, meaningful
heating value, in the so-called ``comparable fuels'' rule (63 FR 33781)
by defining it with a benchmark Btu content of 5,000 Btu/lb. EPA has
also previously stated that industrial furnaces (i.e., cement kilns and
industrial boilers) burning hazardous wastes with an energy value
greater than 5,000 Btu/lb may generally be said to be burning for
energy recovery; however, we have also indicated that hazardous wastes
with a lower Btu content could conceivably be burned for energy
recovery due to the devices' general efficiency of combustion. ``Thus,
the 5,000 Btu level is not an absolute measure of burning for energy
recovery * * *'' (see 62 FR 24251, May 2, 1997).
We believe these same concepts may also be appropriate in
determining whether non-hazardous secondary materials have a meaningful
heating value since traditional fuels have a range of heating values in
general from 4,000 to 23,000 Btu/lb, and since we recognize that new
technologies may be developed in the future that can cost-effectively
produce energy from secondary materials with lower energy content. As a
result, for purposes of meeting the legitimacy criteria for fuels, we
would consider non-hazardous secondary materials with an energy value
greater than 5,000 Btu/lb, as-fired, to have a meaningful heating
value, and satisfy this legitimacy criterion. For facilities with
energy recovery units that use non-hazardous secondary materials as
fuels with an energy content lower than 5,000 Btu/lb, as fired, it may
also be appropriate to allow a person to demonstrate that a meaningful
heating value is derived from the non-hazardous secondary material if
the energy recovery unit can cost-effectively recover meaningful energy
from the non-hazardous secondary materials used as fuels. Factors that
may be important in determining whether an energy recovery unit can
cost-effectively recover energy from the non-hazardous secondary
material include, but are not limited to, whether the facility
encounters a cost savings due to not having to purchase significant
amounts of traditional fuels they otherwise would need, whether they
are purchasing the non-hazardous secondary material to use as a fuel,
whether the secondary material they are burning can self-sustain
combustion, and whether their operation produces energy that is sold
for a profit (e.g., a utility boiler that is dedicated to burning a
specific type of non-hazardous secondary material that is below 5,000
Btu/lb could show that their operation produces electricity that is
sold for a profit).
However, the Agency requests comment on whether it should
promulgate a bright-line test for determining what is considered a
meaningful heating value in an effort to provide greater certainty to
both the regulated community and regulatory officials. For example, the
Agency could establish 5,000 Btu/lb or some other value as the bright-
line test. Commenters that suggest that the Agency establish a bright-
line test should indicate what value the Agency should select, as well
as the basis or rationale for selecting that value. We also request
comment on whether we should identify a Btu/lb cutoff below which the
Agency would assume that the non-hazardous secondary material is burned
for destruction as opposed to energy recovery. Under this approach,
non-hazardous secondary materials between this lower level and 5,000
Btu/lb (assuming there is a difference) could pass this criterion
provided the facility demonstrates the energy recovery unit can cost-
effectively recover meaningful energy from the non-hazardous secondary
materials used as fuels.
EPA views this proposed legitimacy criterion to encompass the
useful contribution and valuable product legitimacy factors used to
evaluate hazardous secondary materials in the DSW final rule. In that
rule, with respect to useful contribution, EPA said that legitimate
recycling must involve a hazardous secondary material that provides a
useful contribution to the recycling process or to a product of the
recycling process. See Sec. 260.43(b)(1). This factor expresses the
principle that the non-hazardous secondary materials should contribute
value to the manufacturing process--legitimate use is not occurring if
the secondary materials being used do not add anything to the process.
This factor is intended to prevent the practice of using secondary
materials in a manufacturing operation simply as a means of disposing
or discarding them. We believe that non-hazardous secondary materials
that are used as a fuel in a combustion unit that have meaningful
heating value provide a useful contribution.
With respect to the other mandatory legitimacy factor, the DSW
final rule stated the recycling process must produce a valuable product
or intermediate. The product or intermediate is valuable if it is (i)
sold to a third party or (ii) used by the recycler or the generator as
an effective substitute for a commercial product or as an ingredient or
intermediate in an industrial process.'' See Sec. 260.43(b)(2). This
factor expresses the principle that the secondary material should be a
material of value, as demonstrated by someone purchasing the material,
or using it as an effective substitute for a commercial product that it
would otherwise have to buy or obtain for its industrial process. We
believe non-hazardous secondary materials that have meaningful heating
value that are used as fuels in combustion units are valuable products
since they would be replacing traditional fuels that otherwise would
have to be burned.
Contaminant Levels. We are proposing a legitimacy criterion under
which non-hazardous secondary materials used as fuels in combustion
units must contain contaminants at levels that are comparable to those
in traditional fuel products which the combustion unit is designed to
burn (e.g., cellulosic biomass, fossil fuels and their derivatives, as
identified elsewhere in this preamble). See proposed Sec.
241.3(d)(1)(iii). This criterion is important to ensure that a non-
hazardous secondary material being used as a fuel is not being
combusted or otherwise released to the environment wholly or in part
for the purpose of disposing of or discarding of unwanted materials.
Combustion of non-hazardous secondary material with elevated levels of
contaminants results in the contaminants being discarded either through
incineration, or by being released to the environment. We also believe
that requiring that the secondary material have contaminants at levels
comparable to traditional fuels would ensure that the burning of any
secondary materials in combustion units will not have increased
releases to the environment that could impact the health and
environment of the local community. Thus, ensuring that the level of
contaminants in the non-
[[Page 31883]]
hazardous secondary material is comparable would be the most protective
of human health and the environment.
We are proposing to define the term ``contaminants'' to mean the
HAP listed under CAA section 112(b), as well as the nine pollutants
required to be regulated under CAA section 129. We believe this is
reasonable because this legitimacy criterion is intended to ensure that
materials are not being combusted as a means of disposing of them, so
the health and environmental impacts of concern will be those resulting
from air emissions, and the air emissions of concern identified in the
CAA include the listed HAP, as well as the section 129 pollutants.
However, the Agency solicits comment on whether the list of
contaminants should be narrower or broader, or whether the Agency
should look at other possible lists. In particular, since the Agency is
determining which non-hazardous secondary materials are considered
solid waste under RCRA, the Agency could consider the list of hazardous
constituents promulgated in Appendix VIII of part 261, which is a list
of hazardous constituents that have been shown in scientific studies to
have toxic, carcinogenic, mutagenic or teratogenic effects on humans
and other life forms.
In determining which traditional fuel(s) the owner or operator of
the boiler unit would make a comparison with respect to contaminant
levels, the Agency is proposing to allow any traditional fuel(s) that
can be or is burned in the particular type of boiler. For example, if
the boiler burns fuel oil, the level of contaminants to be compared
would be the level of contaminants in fuel oil or other liquid
traditional fuels that is or can be burned in such unit, while for gas-
fired boilers, the level of contaminants in the non-hazardous secondary
material fuels would be compared to natural gas. The Agency believes
that this approach is most appropriate since the non-hazardous
secondary material would be replacing the use of a particular type(s)
of fuel. In addition, as discussed in the preamble to the proposed
boiler MACT, boilers designed to combust different types of fuels
(e.g., coal vs. oil) cannot easily be modified to burn another fuel.
Therefore it would not be appropriate to compare the contaminants in a
secondary material that is to be combusted in a boiler designed to burn
oil to the contaminant levels of coal.
EPA is not proposing to establish specific numerical maximum
contaminant levels that a non-hazardous secondary material would have
to meet, but rather the proposal allows the owner or operator to make
the comparison based on information he has or can acquire regarding the
level of contaminants found in traditional fuels he burns. However, the
Agency solicits comment on whether it would be more appropriate for the
Agency to establish bright-line levels of various contaminants in the
various traditional fuels or a single set of contaminant levels that
would apply regardless of the type of traditional fuel that is burned
(as EPA promulgated in the hazardous waste Comparable Fuel Rule \70\)
so that the regulated community would have certainty as to whether a
particular non-hazardous secondary material met this legitimacy
criterion.
---------------------------------------------------------------------------
\70\ See 40 CFR 261.38 as an example of maximum contaminant
levels EPA has promulgated to determine whether a material is a
comparable fuel for purposes of EPA's subtitle C hazardous waste
regulations.
---------------------------------------------------------------------------
The assessment of whether the non-hazardous secondary material has
contaminants comparable to traditional fuel products is to be made by
directly comparing the numerical contaminant levels in the non-
hazardous secondary material to the contaminant levels in traditional
fuels. In making this comparison, the Agency solicits comment on
whether the comparison should be based upon the total level of
contaminants, or on the level of contaminants per Btu of heat value. In
either case, we believe that a direct numerical comparison is necessary
since the level of contaminants must be comparable to the level of
contaminants in traditional fuels. The Agency also solicits comments on
how EPA should interpret ``comparable.'' For example, should comparable
mean the same as or lower, taking into consideration natural variations
in sampling events?
The Agency recognizes that there may be instances where the
contaminant levels in non-hazardous secondary materials may be somewhat
higher than found in traditional fuels, but the resulting air pollutant
emissions would be inconsequential in terms of risks to human health
and the environment in relation to the burning of traditional fuel
products and thus possibly not indicative of discard. Therefore, the
Agency requests comment on whether, instead of requiring that
contaminant levels in non-hazardous secondary materials be comparable
to traditional fuels, the Agency should adopt a criterion under which
contaminants in non-hazardous secondary material used as a fuel in
combustion units could not be significantly higher in concentration
than contaminants in traditional fuel products. Under such an approach,
the Agency believes that a qualitative approach would be appropriate in
determining whether such secondary materials contain ``significantly
higher concentrations of contaminants'' compared to traditional fuels.
That is, a contaminant concentration could be elevated without
indicating the secondary material is discarded and without posing an
unacceptable risk, and therefore, may not be considered ``significantly
higher'' for the purposes of determining whether the non-hazardous
secondary material is legitimately being burned as a fuel in a
combustion unit.
The proposed rule contemplates that this legitimacy criterion must
be met, rather than merely considered. The proposed legitimacy
criterion is tailored specifically to the use of these non-hazardous
secondary materials as fuels in combustion units. As a result, we
believe that contaminant levels in secondary materials must be
comparable to be legitimately used as a non-waste fuel product. We are
therefore proposing that this legitimacy criterion be a requirement for
the secondary material to be considered a legitimate fuel.
Since these requirements are self implementing in nature (i.e.,
they do not need up front approval from the regulatory agency),
facilities may choose to keep supporting documentation on-site in the
event they are inspected by regulatory officials. EPA is not proposing
to require that such documentation be maintained, since the proposed
definition of non-hazardous solid waste is intended to be self-
implementing. However, the Agency solicits comment on whether we should
require owners and operators of combustion units to prepare and
maintain documentation that this particular legitimacy criterion has
been met.
b. Legitimacy Criteria for Ingredients. Today's notice is proposing
that non-hazardous secondary materials used as ingredients in
combustion units meet the legitimacy criteria specified in proposed 40
CFR 241.3(d)(2). An ingredient used in a combustion unit must be
managed as a valuable commodity, provide a useful contribution, be used
to produce a valuable product or intermediate, and must result in
products that contain contaminants at levels that are comparable in
concentration to those found in traditional products that are
manufactured without the non-hazardous secondary material. These
criteria are discussed below.
Managed as Valuable Commodities. We are proposing to require that
non-hazardous secondary materials used as ingredients in combustion
units be managed as valuable commodities and
[[Page 31884]]
be stored for a reasonable timeframe. See proposed 241.3(d)(2)(i).
Where there is an analogous ingredient, the non-hazardous secondary
material used as an ingredient must be managed in a manner consistent
with the management of the analogous ingredient, or otherwise be
adequately contained so as to prevent releases to the environment.
Where there is no analogous ingredient, the non-hazardous secondary
material must be adequately contained so as to prevent releases to the
environment. An ``analogous ingredient,'' is a manufacturing process
ingredient for which the secondary material substitutes and which
serves the same function and has similar physical and chemical
properties as the non-hazardous secondary material.
We are proposing the same storage time and containment requirements
that were discussed earlier for the legitimacy criteria for fuels, and
are also proposing that this criterion be met. Consistent with the
legitimacy criteria for fuels, this criterion addresses the management
of non-hazardous secondary materials used as ingredients in two
distinct situations. The first situation is when the non-hazardous
secondary material is analogous to an ingredient that otherwise would
be used in the production process. In this case, the non-hazardous
secondary material should be managed prior to use as an ingredient
similarly to the way analogous ingredients are managed in the course of
normal manufacturing, or otherwise be adequately contained.
The second situation this criterion addresses is the case where
there is no analogous ingredient that otherwise would be used in the
production process. This could be either because the process is
designed around a particular non-hazardous secondary material, or
because physical or chemical differences between the non-hazardous
secondary material and the ingredient are too significant for them to
be considered ``analogous.'' See Managed as a Valuable Commodity under
the legitimacy criteria for fuels for additional discussion of this
criterion, as well as the specific issues on which EPA is soliciting
comment. That is, to the extent that changes are made to this criterion
with respect to those non-hazardous secondary materials that are used
as fuels, we would likewise make the same changes with respect to those
non-hazardous secondary materials used as an ingredient, unless
comments are submitted which explain, and provide appropriate data and
information, on why this criterion should be different between those
non-hazardous secondary materials that are used as a fuel and those
that are used as ingredients.
Useful Contribution. We are proposing that the non-hazardous
secondary materials used as ingredients in combustion units provide a
useful contribution to the production/manufacturing process. See
proposed 241.3(d)(2)(ii). A non-hazardous secondary material used as an
ingredient in combustion systems provides a useful contribution if it
contributes valuable ingredients to the production/manufacturing
process or to the product or intermediate of the production/
manufacturing process. This criterion is an essential element in the
determination of legitimate use as an ingredient because legitimate use
is not occurring if the non-hazardous secondary materials being added
do not add anything to the process. This criterion is intended to
prevent the practice of adding non-hazardous secondary materials to a
manufacturing operation simply as a means of disposing of them, which
EPA would consider sham recycling.
The ANPRM listed five ways in which a non-hazardous secondary
material can add value and usefully contribute to a recycling process:
(i) The secondary material contributes valuable ingredients to a
product or intermediate; or (ii) replaces a catalyst or carrier in the
recycling process; or (iii) is the source of a valuable constituent
recovered in the recycling process; or (iv) is recovered or regenerated
by the recycling process; or (v) is used as an effective substitute for
a commercial product. Since today's proposal addresses non-hazardous
secondary materials that are used as ingredients in combustion units,
we believe that only items (i) and (v) are specifically relevant to our
assessment of whether these non-hazardous secondary materials provide a
useful contribution in combustion scenarios. We request comment,
however, on whether this is correct, or whether the secondary materials
we are assessing as ingredients can provide useful contribution in
other ways.
For purposes of satisfying this proposed criterion, not every
constituent or component of the non-hazardous secondary material has to
make a contribution to the production/manufacturing activity. That is,
non-hazardous secondary materials used as ingredients may contain some
constituents that are needed in the manufacturing process, such as, for
example, zinc in non-hazardous secondary materials that are used to
produce zinc-containing micronutrient fertilizers, and satisfy this
criterion (although we would also note that the constituents not
directly contributing to the manufacturing process could still result
in the material failing the contaminant part of the legitimacy
criteria). The Agency is not defining quantitatively how much of the
non-hazardous secondary material needs to provide a useful contribution
for this criterion to be met, since we believe that defining such a
level would be difficult and is likely to be different, depending on
the non-hazardous secondary material. The Agency recognizes, however,
that this could be an issue if persons argue that a material is being
legitimately used as an ingredient, but in fact, only a small amount or
percentage of it is used. Because of the differences in the emission
standards that the non-hazardous secondary material would be subject
to--between CAA section 112 and 129, persons may argue that such non-
hazardous secondary materials are not wastes, when in fact, the
operation is really discard--that is sham recycling. Therefore, the
Agency solicits comment on whether the Agency should quantitatively
define how much of the non-hazardous secondary material must provide a
useful contribution, or alternatively, how much constituents or
components in a non-hazardous secondary material there would need to
be, before the material would not be considered to provide a useful
contribution.
Valuable Product. We are proposing that the non-hazardous secondary
materials used as ingredients in combustion units must be used to
produce a valuable product or intermediate. See proposed
241.3(d)(2)(iii). The product or intermediate is valuable if it is (i)
sold to a third party or (ii) used as an effective substitute for a
commercial product or as an ingredient or intermediate in an industrial
process.
This criterion expresses the principle that the product or
intermediate of the manufacturing/production process should be a
material of value, either to a third party who buys it from the
manufacturer, or to the same manufacturer that subsequently uses it as
a substitute for another material that it would otherwise have to buy
or obtain for its industrial process. This criterion is an essential
element of the concept of legitimate use of secondary materials as
ingredients because legitimate use cannot be occurring if the product
or intermediate is not of use to anyone and, therefore, has no real
value. This criterion is intended to prevent the practice of running a
non-hazardous secondary material through an industrial process to make
something
[[Page 31885]]
just for the purpose of avoiding the costs of disposal. Such a practice
would be sham recycling.
One way that the use of the non-hazardous secondary material as an
ingredient in the production/manufacturing process that involves a
combustion unit can be shown to produce a valuable product would be to
have documentation on the sale of the product to a third party. Such
documentation could be in the form of receipts or contracts and
agreements that establish the terms of the sale or transaction. This
transaction could include money changing hands or, in other
circumstances, may involve trade or barter. A manufacturer that has not
yet arranged for the sale of its product to a third party could
establish value by demonstrating that it can replace another product or
intermediate that is available in the marketplace.
Production/manufacturing processes that use non-hazardous secondary
materials as ingredients in combustion systems may produce outputs that
are not sold to another party, but are instead used by the same
manufacturer. These products or intermediates may be used as a
feedstock in a manufacturing process, but have no established monetary
value in the marketplace. Such products or intermediates would be
considered to have intrinsic value, though demonstrating intrinsic
value may be less straightforward than demonstrating value for products
that are sold in the marketplace. Demonstrations of intrinsic value
could involve showing that the product or intermediate of the
production/manufacturing process replaces another material that would
otherwise have to be purchased or could involve a showing that the non-
hazardous secondary material meets specific product specifications or
specific industry standards. Another approach could be to compare the
non-hazardous secondary material's physical and chemical properties or
efficacy for certain uses with those of comparable products or
intermediates made from raw materials.
Some production/manufacturing processes that use non-hazardous
secondary materials as ingredients in combustion systems may consist of
multiple steps that may occur at separate facilities. In some cases,
each processing step will yield a valuable product or intermediate.
When each step in the process yields a valuable product or intermediate
that is salable or usable in that form, the activity would conform to
this criterion.
Contaminant Levels. We are proposing that the non-hazardous
secondary material used as an ingredient must result in products that
contain contaminants at levels that are comparable in concentration to
those found in traditional products that are manufactured without the
non-hazardous secondary material. See proposed Sec. 241.3(d)(2)(iv).
The term ``contaminants'' refers to constituents in non-hazardous
secondary materials that will result in emissions of the air pollutants
identified as HAP listed under CAA section 112(b) and the nine
pollutants listed under CAA section 129(a)(4)) when such secondary
materials are burned as fuel or used as ingredients, including those
constituents that could generate products of incomplete combustion. The
Agency requests comments on whether we should have a different
definition of contaminants that applies specifically to ingredients.
Since contaminant comparisons for the contaminant legitimacy criterion
apply to a comparison of the products rather than to the secondary
material, we request comment on whether a different list of
contaminants should apply, or whether we should generically define
contaminants to be constituents that may be a concern with respect to
the product that is produced (e.g., clinker).
The assessment of whether products produced from the use of non-
hazardous secondary material ingredients in combustion units that have
contaminants that are comparable in concentration to traditional
products can be made by a comparison of contaminant levels in the
ingredients themselves to traditional ingredients they are replacing,
or by comparing the contaminant levels in the product itself with and
without use of the non-hazardous secondary material ingredient.
The Agency recognizes that there may be instances where the
contaminant levels in the products manufactured from non-hazardous
secondary material ingredients may be somewhat higher than found in the
traditional products that are manufactured without the non-hazardous
secondary material, but the resulting concentrations would not be an
indication of discard and would not pose a risk to human health and the
environment. Therefore, the Agency requests comment on whether, instead
of requiring that contaminant levels in products manufactured from
secondary material ingredients be comparable in concentration, the
Agency should adopt a criterion under which contaminants in the product
could not be significantly higher than found in the traditional
products that are manufactured without the non-hazardous secondary
material. Under such an approach, the Agency believes that a
qualitative approach would be appropriate in determining whether such
products contain ``significantly higher concentrations of
contaminants.'' That is, a contaminant concentration could be elevated
without indicating the secondary material is discarded and without
posing an unacceptable risk, and therefore, may not be considered
``significantly higher'' for the purposes of determining whether the
non-hazardous secondary material is legitimately used as an ingredient
in a combustion unit.
Similar to fuels, we are proposing that the legitimacy criterion
addressing contaminant levels in non-hazardous secondary materials used
as an ingredient in combustion systems be one that must be met, as
opposed to one that must only be considered. As we noted in the
legitimacy criteria for fuels, this criterion is tailored specifically
to the use of these non-hazardous secondary materials in combustion
units, and thus, we do not believe that there are case-specific
situations where this criterion could not be met, but the material
would still be considered legitimately used as an ingredient.
E. Alternative Approach
In addition to the proposed approach described in Section VII.D.,
the Agency is identifying an alternative approach for consideration and
comment. As explained below, this alternative approach, which is
broader than the proposed solid waste definition discussed above, we
believe could be constructed in a manner consistent with RCRA and
relevant caselaw although it may raise important policy questions. This
alternative may be adopted by the Agency in the final rule if warranted
by information presented during the public comment period or otherwise
available in the rulemaking record. Under this alternative, traditional
fuels that we have identified earlier, which includes clean biomass,
and that have been burned historically as fuels and managed as valuable
products (as discussed in section VII.C.5.) would not be solid wastes.
In addition, non-hazardous secondary materials used as fuels or
ingredients are excluded from the definition of solid waste if they
both remain within the control of the generator and meet the legitimacy
criteria.
In contrast to the proposed approach described above, all other
non-hazardous secondary materials that are burned as a fuel or used as
an ingredient in the combustion process would be solid wastes subject
to the CAA section 129 standards if burned in a combustion
[[Page 31886]]
unit. Also, all materials that result from processing of discarded non-
hazardous secondary materials would be solid wastes. As with the
proposed approach, wastes would include those secondary materials used
as a fuel or ingredient not passing the legitimacy criteria, and those
secondary materials used as a fuel that are managed outside the control
of the generator. This solid waste designation would include materials,
such as secondary wood products combusted on-site, coal refuse, and
tires processed into TDF, on-spec used oil, and all secondary materials
used as ingredients managed outside the control of the generator in
combustion units. No petition process would be offered under this
alternative.
We request comment on all aspects of this alternative. Comments are
specifically requested related to the potential impact this alternative
may have on traditional non-combustion recycling activities, potential
changes in the quantity of non-hazardous secondary materials that may
be landfilled, and any collateral regulatory impacts, such as the
impact on the MACT floors proposed today for the Commercial and
Industrial Solid Waste Incinerators if a significant number of
additional sources are subject to that rule.
This alternative approach is closer to the views expressed by some
commenters that any secondary material combusted for energy recovery is
a solid waste and should be regulated under CAA section 129. Thus, only
traditional fuels and clean biomass may be burned in a combustion unit
under CAA section 112. These commenters believe that the combustion of
non-hazardous secondary materials by definition constitutes discard,
and therefore all such materials are solid wastes. They have also
expressed concerns that section 129 mandates stringent requirements for
emissions control, monitoring and reporting for all sources
irrespective of size, while section 112 allows EPA discretion to treat
smaller sources differently by setting standards based on generally
available control technology for sources emitting less than 10 tons per
year or more of any single HAP or 25 tons per year or more of any
combination of HAPs (i.e. area sources). If non-hazardous secondary
materials burned on site for energy recovery are excluded from the
definition of solid waste, these commenters argue that many smaller
facilities that burn such materials will not be subject to any
significant pollution control, monitoring, or reporting requirements.
As a result, they believe such an exclusion could have significant
adverse health and welfare effects on communities across the country
that are located near area sources burning such secondary materials on
site for energy recovery.
We solicit comment on whether EPA should include such non-hazardous
secondary materials as solid waste, and whether such a definition is
consistent with or required by RCRA and/or the CAA. Further, as
explained below, while we believe that the approach favored by the
commenters may raise legal concerns as to the definition of
``discard,'' as we have discussed previously and further discuss in
this section of the preamble, we solicit comment on whether the Agency
has the authority to regulate all non-hazardous secondary materials
that are burned in combustion units either as a fuel or ingredient as
solid wastes. In providing comments on this approach, we specifically
request that commenters provide the basis for their recommended
position in light of the existing case law on the issue of ``discard.''
Some commenters have also argued that, as more non-hazardous
secondary materials would be subject to CAA section 129 standards when
combusted, this option would help promote traditional recycling, while
ensuring more stringent emissions standards under CAA section 129 for
those sources that elect to continue to burn these secondary materials.
Depending upon local disposal and virgin material costs, increased
recycling may occur as a result of market adjustments in response to
higher materials management costs.
EPA wishes to clarify, however, that simply because a waste has, or
may have, value does not mean the material loses its status as a solid
waste. See API I, 906 F.2d at 741 n.16; United States v. ILCO Inc., 996
F.2d 1126, 1131-32 (11th Cir. 1993); Owen Steel v. Browner, 37 F.3d
146, 150 (4th Cir. 1994). Wastes may be used beneficially. Even
assuming beneficial reuse takes place, therefore, a material once
discarded cannot cease to be a waste solely by being beneficially
reused. In the case of this rule, beneficial resuse would be, for
example, use as a fuel--as opposed to incineration, where the material
is combusted primarily to be destroyed.
It is also important to note that a secondary material could still
be a waste even if it is recycled on site or under the control of the
generator. See ``API II,'' 216 F.3d at 55-58, where the DC Circuit
overturned EPA's determination that certain recycled oil bearing
wastewaters are wastes. The court overturned this decision and remanded
it to EPA for a better explanation. Importantly for the rule we are
considering today, the court neither accepted EPA's view nor the
contrary industry view, noting that the relevant determination that had
to be made was whether primary treatment of wastewater is simply a step
in the act of discarding or the last step in a production process
before discard. 213 F.3d at 57. The court rejected both EPA's and
industry's views because they were only stated in broad generalities.
Relevant for today's alternative approach, we note that oil bearing
wastewaters discussed in API II were in fact recycled on-site, but that
the court could not determine whether they were wastes or not. Clearly,
the issue was not whether the recycling occurred on site, or even under
the control of the generator. Rather, the relevant determination is
whether the material is discarded or not.
To remedy the ``on-site'' problem raised by API II, EPA for this
proposed rule also requires that for the material not to be a waste it
must be a legitimate fuel or ingredient. This means, to summarize the
legitimacy criteria very generally, if used as a fuel, it is handled as
though it is a valuable product (loss must be minimal), it is a true
fuel with legitimate heating value, and the material has comparable
levels of contaminants to those contained in traditional fuels. In
particular, if there are higher than comparable levels of contaminants,
that would be an indication that the material is really a waste and it
is being combusted to destroy the waste materials. If the material is
used as an ingredient, under the proposed rule it must be managed as a
valuable commodity, must provide a useful contribution to the
production or manufacturing process, must be used to produce a valuable
product or intermediate, and cannot result in products that contain
contaminants that are not comparable to the concentrations found in
traditional products. For details on the legitimacy requirement, see
section VII.D.6, above. In fact, as noted below, EPA has determined,
for purposes of this alternative approach, that certain secondary
materials [see wood residuals and pulp and paper sludge below], even
though they are recycled on-site or under the control of the generator,
they are still considered solid wastes.
The key point regarding the legal basis of this alternative
approach is that EPA is accounting for the likelihood that material
recycled within a continuous industrial process by being burned for
energy recovery or as an ingredient is not a solid waste. The
alternative approach, accordingly, requires that the secondary material
[[Page 31887]]
material is both recycled under the control of the generator and
complies with the legitimacy criteria to ensure that it is in fact not
handled as a waste and is a truly beneficial fuel or ingredient
product. An example of a material burned for energy recovery under the
control of the generator and meeting the legitimacy requirements is on-
spec used oil generated on-site and combusted in an industrial boiler.
With respect to other examples, such as pulp and paper sludge and
wood manufacturing residuals burned on-site for energy recovery, the
Agency may reach a different conclusion. Specifically, commenters to
the ANPRM indicated that these materials are primarily composed of
biomass and that emissions from burning these materials are essentially
the same as emissions from burning other biomass fuels, such as bark or
unadulterated wood (see section VII.C.5.). For purposes of the primary
proposal, EPA has determined that wood residuals and pulp and paper
sludge are not wastes based on limited contaminant data collected to
date and the on-site use of the secondary material. However, for this
alternative approach, for the reasons described below, EPA is proposing
to classify these materials as solid waste.
This alternative acknowledges that for some categories of secondary
materials, it is difficult to determine whether those materials may or
may not be discarded. The DC Circuit has also acknowledged the
ambiguity of the term ``solid waste'' under RCRA as applied to
particular situations. Specifically, the court stated that ``[the] term
may be ambiguous as applied to some situations, but not as applied to
others.'' ABR at 1056. Thus, there could be some secondary materials
that are clearly legitimately recycled within a continuous industrial
process and others that are less clear. EPA believes that wood
residuals and pulp and paper sludges are just the kinds of materials
that present this kind of ambiguity.
Based on information the Agency has received, pulp and paper
sludges are generally used on-site by generators to fuel their boilers
and are treated like valuable commodities. However, there appear to be
questions with respect to contaminants in the sludges that give EPA
pause as to whether the combustion of these materials is primarily a
waste treatment activity--specifically because of levels of chlorine in
pulp and paper sludge. The Agency has similar concerns with levels of
formaldehyde in wood residuals.
Accordingly, EPA believes that with respect to contaminant levels
the wood residuals and pulp and paper sludge present a situation in
which reasonable persons can disagree as to whether they are discarded
materials or not. EPA solicits comments on whether these secondary
materials should be classified as wastes or non-wastes.
EPA believes that its formulation that secondary material recycled
or reused legitimately under the control of the generator will cover
all, or almost all, secondary material recycled or reused in a
continuous industrial process. The Agency requests comment on the
adequacy of this formulation and any data commenters may have
indicating whether particular secondary materials that will fall within
or outside of this framework and whether, and why, those materials are
discarded or not.
Comments are specifically requested related to the potential impact
this alternative may have on traditional non-combustion recycling
activities and potential changes in the quantity of non-hazardous
secondary materials that may be landfilled. In addition, we request
comment as to whether this alternative approach should include a
petition process that provides persons with an administrative process
for a formal determination that their non-hazardous secondary material
fuel or ingredient is indistinguishable in all relevant aspects from a
fuel or ingredient, and thus is not discarded and not a solid waste.
EPA believes that an even more far reaching regulatory approach, as
suggested by some comments, in which only traditional fuels are not
solid wastes and all secondary materials burned for energy recovery or
as an ingredient are considered discarded may not be legally acceptable
in that the approach provides too broad a definition of solid waste in
light of the RCRA case law on the definition of solid waste.
Specifically, EPA is concerned about the case law holding that, the
RCRA definition of solid waste does not extend to secondary material
beneficially reused in a continuous industrial process, as that
material has not been discarded and is not a solid waste. See ``AMC
I,'' 824 F.2d 1177 at 1190 in which the court stated that the term
``discarded materials'' could not include materials ``* * * destined
for beneficial reuse or recycling in a continuous process by the
generating industry itself.'' Accord, Association of Battery Recyclers
v. EPA, 208 F.3d 1047 (DC Cir. 2000) (``ABR''). The provisions under
consideration in AMC I and ABR dealt specifically with material
``reclaimed'' in a continuous process--that is, material regenerated
from a secondary material in a continuous process. It seems highly
likely the courts would extend this same reasoning to secondary
materials that are otherwise reused or recycled in a continuous
industrial process, such as material used, or combusted, to recover
energy or as an ingredient. Thus, EPA is hesitant to define all reused
or recycled secondary materials as solid waste under RCRA.
F. Effect of Today's Proposal on Other Programs
The construct of this proposed rule for determining when non-
hazardous secondary materials are legitimately burned as non-waste
fuels or ingredients has applicability to the universe of facilities
subject to CAA sections 112 and 129, as well as other rules and agency
regulatory programs.
1. Clean Air Act
As discussed in Section IV, the CAA section 129 definition of solid
waste incineration unit states that the term ``solid waste'' will have
the meaning established by the Administrator of EPA under RCRA. Today's
proposed rule would establish under RCRA which non-hazardous secondary
materials constitute ``solid waste.'' This proposed definition of
``solid waste'' has been used by EPA in its concurrent proposed CAA
emissions standards for CISWI units (under CAA section 129) and boilers
and process heaters (under CAA section 112). Any unit combusting
``solid waste'' under today's proposed definition would be regulated as
a ``solid waste incineration unit'' under CAA section 129. If a non-
hazardous secondary material is not a ``solid waste'' under the
proposed definition and such material is burned as a legitimate fuel or
used as a legitimate ingredient in a manufacturing process, the
combustion unit would be regulated pursuant to CAA section 112 (by
statute, a source cannot be regulated under both CAA sections 112 and
129).
2. Renewable Energy
This proposal may impact how some non-hazardous secondary materials
could be used to help supply renewable energy to the U.S. and through
state programs. Given the Congressional mandate for renewable energy,
it is important to assess the impact of this proposed regulation on
those programs. Congress has passed several laws, such as the Energy
Independence and Security Act of 2007 (Pub. L. 110-140), that support
the development and use of renewable sources of energy, both for power
generation and for the production of transportation fuels. Qualified
sources would include wind, solar, and geothermal power, but could also
include power generated by the
[[Page 31888]]
combustion of biogenic materials, which may include some non-hazardous
secondary materials burned for energy recovery. Biogenic materials are
materials that result from the activity of living organisms. A number
of non-hazardous secondary materials are partially or completely
biogenic. For example, woody biomass contains recoverable energy and
would be considered biogenic in origin. Energy from biogenic sources is
generally preferable to fossil fuels.
In addition to these federal programs that may be impacted,
Renewable Portfolio Standards (RPS) currently provide states with a
mechanism to increase renewable energy generation using renewable
energy sources (including biofuels) and a cost-effective, market-based
approach. An RPS requires electric utilities and other retail electric
providers to supply a specified minimum amount of customer load with
electricity from eligible renewable energy sources. The goal of an RPS
is to stimulate market and technology development so that, ultimately,
renewable energy will be economically competitive with conventional
forms of electric power. States create RPS programs because of the
energy, environmental, and economic benefits of renewable energy and
sometimes other clean energy approaches, such as energy efficiency and
combined heat and power. Today's proposed rule determining which non-
hazardous secondary materials constitute solid waste may impact the
requirements for secondary materials that may be burned for energy
generation under the RPS program.
3. Subtitle C Hazardous Waste Program
The result of this rulemaking effort will have no effect on the
subtitle C Hazardous Waste Program. The RCRA subtitle C hazardous waste
federal program has a long regulatory history in defining ``solid
waste'' for purposes of the hazardous waste regulations. However, the
40 CFR 261.2 definition of solid waste explicitly applies only to
wastes that also are hazardous for purposes of the subtitle C
regulations (see 40 CFR 261.1(b)(1)). CAA section 129 also specifically
excludes subtitle C units from coverage under that section. EPA
emphasizes that it is not modifying or reopening its hazardous waste
regulations; EPA does not intend to respond to any comments directed to
those regulations.
RCRA section 7003 gives EPA the authority to compel actions to
abate conditions that may present an ``imminent and substantial
endangerment'' involving both solid and hazardous wastes. EPA uses this
authority on a case-by-case basis. The Agency can determine in a
specific factual context whether a secondary material which causes an
endangerment is discarded. RCRA Sections 3007 and 3008 establish EPA's
inspection and Federal enforcement authority to address violations of
the Subtitle C hazardous waste regulations. Nothing in this proposed
rule shall impact EPA's ability to act pursuant to RCRA sections 3007,
3008 and 7003. The proposed rule also does not limit or otherwise
affect EPA's ability to pursue potentially responsible persons under
section 107 of CERCLA for releases or threatened releases of hazardous
substances.
VIII. State Authority
Subtitle D of RCRA establishes a framework for state, federal, and
local government cooperation in controlling the management of non-
hazardous solid waste. The federal role in this arrangement is to
establish the overall regulatory direction, by providing minimum
nationwide standards for protecting human health and the environment,
and to provide technical assistance to states for planning and
developing their own solid waste management practices. The actual
planning and direct implementation of solid waste programs under RCRA
subtitle D, however, remains largely a state and local function, and
states have authority to devise programs to deal with state specific
conditions and needs.
EPA has not promulgated detailed regulations of what is included in
the definition of solid waste for the RCRA subtitle D (non-hazardous)
programs. States have promulgated their own laws and regulations as to
what constitutes solid waste and have interpreted those laws and
regulations to determine what types of non-hazardous secondary material
activities involve the management of a solid waste. Many states have a
process or promulgated regulations to determine when these materials
are wastes, and when they can be used beneficially and safely in
products in commerce.
Through this rulemaking, EPA is articulating the narrow definition
of which non-hazardous secondary materials are or are not solid waste
when used as fuel for energy recovery or as ingredients in combustion
units. We are not making solid waste determinations that cover other
possible secondary material end uses.
A. Applicability of State Solid Waste Definitions and Beneficial Use
Determinations
CAA Section 129 states that the term ``solid waste'' shall have the
meaning ``established by the Administrator pursuant to the Solid Waste
Disposal Act'' Id. at 7429(g)(6). Accordingly, the state's definitions
of solid waste would not be applicable in determining whether the
section 129 standards apply. Specifically, state determinations
regarding a material's beneficial use that may exempt that non-
hazardous secondary material from the state solid waste standards would
not necessarily impact the status of that secondary material under
EPA's solid waste definition as it relates to which combustion units
are subject to the CAA section 129 standards, except perhaps as
discussed in section VII.D.5, where we discuss a state's ability to
submit, on behalf of the petitioner, a petition for EPA to evaluate
under the proposed non-waste determination criteria.\71\ Likewise, non-
hazardous secondary materials that are exempted from being a solid
waste by EPA's proposed rule, if finalized, would be exempt from the
CAA section 129 standards, even though the state standards may define
the non-hazardous secondary material as a solid waste.
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\71\ If EPA determines through the petition process that the
secondary materials in the state determinations are not solid waste
per 40 CFR 241.3(c), then the units that burn such materials would
not be subject to the CAA section 129 requirements.
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The language in CAA section 129, however, may be interpreted to
provide the Administrator with flexibility in determining the meaning
of solid waste under that section. EPA is requesting comment on an
option where, to determine applicability of the CAA section 129
requirements, the Agency would rely on a determination through a
state's beneficial use program that certain secondary materials are or
are not solid waste. Such state programs are meant to encourage the use
of non-hazardous secondary materials, provided that the uses maintain
the specified state's acceptable level of risk, protect human health
and the environment, and are managed in accordance with the conditions
of the determination. Generally, for a secondary material to be
beneficially used and thus no longer a solid waste, it would have
chemical and physical properties similar to the raw material it is
replacing or, when incorporated into another product, its use would be
beneficial to the final product. Relying on these beneficial use
determinations
[[Page 31889]]
would recognize state interests in defining solid waste in the context
of their own solid waste program, as well as help to mitigate potential
inconsistencies between federal and state solid waste determinations.
Consideration of this option, however, where the Agency could rely
on determinations by a state's beneficial use program in deciding
whether certain materials are solid wastes when used as fuels or
ingredients in combustion units, must take into account the current
legal rationale for defining solid waste under EPA authority.
Specifically, the courts have held that a secondary material that has
been discarded is a solid waste regardless of whether it may be reused
at some time in the future and simply because a waste has, or may have,
beneficial value does not mean the secondary material loses its status
as a solid waste.\72\
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\72\ See AMC II, 907 F.2d at 1186; API I, 906 F.2d at 741 n.16;
United States v. ILCO Inc., 996 F.2d at 1131-32; Owen Steel v.
Browner, 37 F.3d at 150.
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See the ANPRM for this rulemaking for the complete discussion of
case law pertaining to the solid waste definition (74 FR 51).
B. State Adoption of the Rulemaking
No federal approval procedures for state adoption of today's
proposed rule are included in today's proposal under RCRA subtitle D.
Although EPA does promulgate criteria for solid waste landfills and
approves state municipal solid waste landfill permitting programs, RCRA
does not provide EPA any additional authority to approve state programs
beyond municipal solid waste. While states are not required to adopt
today's rule, some states incorporate federal regulations by reference
or have specific state statutory requirements that their state program
can be no more stringent than the federal regulations. In those cases,
EPA anticipates that the changes in today's rule will be adopted by
these states, consistent with state laws and state administrative
procedures.
IX. Costs and Benefits of the Proposed Rule
The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. This action alone does
not directly invoke any costs \73\ or benefits. This proposal is being
developed and published in conjunction with the upcoming Boiler MACT
and CISWI proposed rules.\74\ Costs to the regulated community and
corresponding benefits to human health and the environment fall under
the jurisdiction of these rules. As such, the Agency has not prepared a
separate economic assessment in support of this proposal. However, we
recognize that this action, as proposed, may affect various State
materials management programs, and we are sensitive to these concerns.
The Agency encourages comment on any potential direct impacts this
action may have on State materials management programs.
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\73\ Excluding minor administrative burden/cost (e.g. rule
familiarization) and voluntary petition costs.
\74\ National Emission Standards for Hazardous Air Pollutants
for Area Sources: Industrial, Commercial, and Institutional Boilers;
National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heaters;
and, Standards of Performance for New Stationary Sources and
Emission Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------
The costs and benefits indirectly associated with this action are
the corresponding impacts assessed in the regulatory impact analyses
prepared in support of the CAA proposed rules. These independent
regulatory impact analyses measure, among other factors, the estimated
net change in social welfare associated with these actions. In the
development of these analyses, EPA worked to ensure that the
methodologies and data applied in these assessments captured
appropriate RCRA related costs (e.g., secondary material diversions).
These assessments were designed to adhere to Agency and the Office of
Management and Budget (OMB) guidelines and procedures. The Agency has
also prepared a general executive summary document that addresses
overall impacts of this rulemaking package. These documents are
available in the docket established for today's action. The reader is
encouraged to review and comment on all aspects of these documents.
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Pursuant to the
terms of Executive Order 12866, the Agency, in conjunction with the
Office of Management and Budget (OMB) has determined that this proposed
rule is a significant regulatory action because it contains novel
policy issues, as defined under part 3(f)(4) of the Order. Accordingly,
EPA submitted this action to OMB for review under EO 12866. Any changes
made in response to OMB recommendations have been documented in the
docket for this action.
B. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2382.01.
This proposal establishes a voluntary non-waste determination
petition process for materials identified as solid wastes. Facilities
claiming this non-hazardous solid waste exclusion are required to seek
approval from the Agency through the submission of a petition prior to
operating under this exclusion. Sufficient information about the
secondary material and the market demand for this material will be
necessary to demonstrate that the non-hazardous secondary material will
in fact be used as a fuel or ingredient in the combustion process.
Specifically, the petition will need to contain information to assess
the following criteria: (1) Whether market participants handle the non-
hazardous secondary material as a fuel rather than a waste; (2) whether
the chemical and physical identify of the non-hazardous secondary
material is comparable to a commercial fuel; (3) whether the capacity
of the market would use the non-hazardous secondary material in a
reasonable timeframe; (4) whether the constituents in the non-hazardous
secondary material are not discarded to the air, water or land from the
point of generation through combustion of the secondary material at
significantly higher levels from either a statistical or from a health
and environmental risk perspective than would otherwise be released;
and (5) other relevant factors.
The facility-level burden associated with this voluntary petition
option is uncertain. However, we estimate an average total one-time
burden of approximately 700 hours per facility, with a total cost per
facility of approximately $71,400. The total number of facilities
likely to take advantage of this option is undetermined, but we would
expect that only a limited number of facilities may submit such a
petition. The Agency requests comment on the number of petitions that
are likely to be submitted to EPA for consideration. Burden is defined
at 5 CFR 1320.3(b).
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB
[[Page 31890]]
control number. The OMB control numbers for EPA's regulations in 40 CFR
are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2008-0329. Submit any comments related to the ICR to EPA and OMB. See
the ADDRESSES section at the beginning of this notice for where to
submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after June 4, 2010, a comment to OMB is best
assured of having its full effect if OMB receives it by July 6, 2010.
The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business, as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. No small
entities are directly regulated by this proposed rule (see discussion
above under costs and benefits). Small entities potentially affected
indirectly by this action include: major source industrial, commercial,
and institutional boilers and process heaters, area source industrial,
commercial, and institutional boilers and commercial and industrial
solid waste incineration units. We estimate that these units operate in
approximately 50 different industry categories based on the NAICS three
digit sector code level. These sectors include: crop production;
forestry and logging; support activities for agriculture and forestry;
oil and gas extraction; mining (except oil and gas); utilities; heavy
and civil engineering construction; food manufacturing; beverage and
tobacco product manufacturing; textile mills and textile product mills;
wood product manufacturing; paper manufacturing; petroleum and coal
products manufacturing; chemical manufacturing; plastics and rubber
products manufacturing; nonmetallic mineral product manufacturing;
primary metal manufacturing; fabricated metal product manufacturing;
machinery manufacturing; computer and electronic product manufacturing;
transportation equipment manufacturing; furniture and related product
manufacturing; merchant wholesalers; motor vehicle and parts dealers;
air, rail, and pipeline transportation; warehousing and storage; waste
management and remediation services; educational services; hospitals;
accommodation; repair and maintenance; and public administration. Any
potential impacts to small entities under these and any other
potentially affected sectors are addressed in the regulatory
flexibility analysis prepared in support of the CAA proposed rules that
are linked to this action.\75\
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\75\ National Emission Standards for Hazardous Air Pollutants
for Area Sources: Industrial, Commercial, and Institutional Boilers;
National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heaters;
and, Standards of Performance for New Stationary Sources and
Emission Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------
We have determined that, because no small entities are directly
impacted by this proposed action, there will not be a significant
economic impact on a substantial number of small entities. This
determination is based on the findings, as discussed above.
Although this proposed rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the (indirect) impact of this rule on small entities
through the careful and targeted identification of solid waste
materials. We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This proposed rule does not contain a Federal mandate that may
result in expenditures of $100 million or more for State, local, and
tribal governments, in the aggregate, or the private sector in any one
year. Because this action is linked to the CAA rules (see footnote
under section C), this rule alone will not result in significant
economic impacts on States, local and tribal governments, in the
aggregate, or the private sector in any one year. Thus, this rule is
not subject to the requirements of sections 202 or 205 of UMRA.
This proposed rule is also not subject to the requirements of
section 203 of UMRA because it contains no regulatory requirements that
might significantly or uniquely affect small governments. As described
above, this action alone does not result in unique effects, or
significant economic impacts.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This action, independent of the CAA
rules, as proposed (see footnote 81), will not result in substantial
direct effects on the states. Furthermore, this action will not preempt
state laws related to the affected materials. States will remain free
to manage these materials as appropriate under their Subtitle D
programs. Thus, Executive Order 13132 does not apply to this action.
Although we believe that this action, as proposed, will not result
in substantial direct effects on the states, we are sensitive to the
perceptions States may have of this action in regard to their solid
waste management programs. On January 2, 2009 we published an ANPRM
(Identification of Non-Hazardous Materials That Are Solid Waste) that
presented the Agency's anticipated approach for this action. We
received numerous comments on this ANPRM, many of which came from
States. Furthermore, we have reached out to the States with various
informational conference calls throughout the development of this
proposal. .
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA
[[Page 31891]]
and State and local governments, EPA specifically solicits comment on
this proposed action from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) EPA may not issue a regulation that has tribal implications, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by tribal governments, or
EPA consults with tribal officials early in the process of developing
the proposed regulation and develops a tribal summary impact statement.
EPA has concluded that this action may have tribal implications.
However, it will neither impose substantial direct compliance costs on
tribal governments, nor preempt Tribal law. The proposed rule may have
minor tribal implications to the extent that entities generating or
burning solid wastes on tribal lands could be affected.
EPA consulted with tribal officials early in the process of
developing this regulation to permit them to have meaningful and timely
input into its development. EPA specifically solicits additional
comment on this proposed action from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
12866, and because the Agency does not believe the environmental health
or safety risks addressed by this action present a disproportionate
risk to children. This action's health and risk assessments related to
this action are contained in the support documents prepared for the CAA
section 129 CISWI and section 112 boiler MACT proposed rules.
H. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution or Usage
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action, independent of the CAA
rules, as proposed, is not expected to directly affect energy use or
use patterns. Energy impacts resulting for the CAA (see rule
identification in footnote 72) application of this action are assessed
and discussed in the preambles and supporting materials for those
rules.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA is evaluating the question of whether this proposed rule will
or will not have disproportionately high and adverse human health or
environmental effects on minority or low-income populations. We have
completed preliminary environmental justice analyses, in conjunction
with the Boiler MACT and CISWI proposed rules (see section IV.A.).
These preliminary environmental justice analyses are compiled in the
``Review of Environmental Justice Impacts'' for both this proposal and
the Boiler MACT and CISWI proposed rules. This document is available in
the docket for today's rule (Docket ID No: EPA-HQ-RCRA-2008-0329).
EPA is committed to addressing environmental justice concerns and
has assumed a leadership role in environmental justice initiatives to
enhance environmental quality for all citizens of the United States.
The Agency's goals are to ensure that no segment of the population,
regardless of race, color, national origin, income, or net worth, bears
disproportionately high and adverse human health and environmental
impacts as a result of EPA's policies, programs, and activities. Our
goal is to ensure that all citizens live in clean and sustainable
communities. In response to Executive Order 12898, and to the concerns
voiced by many groups outside the Agency, EPA's Office of Solid Waste
and Emergency Response (OSWER) formed an Environmental Justice Task
Force to analyze the array of environmental justice issues specific to
waste programs and to develop an overall strategy to identify and
address these issues (OSWER Directive No. 9200.3-17).
The Environmental Justice analysis in today's proposal includes two
main parts: (1) Demographic analysis and environmental impacts; and (2)
outreach.
Demographics Analysis and Environmental Impacts
For this proposal, the demographic analysis focuses on the
management of secondary materials that have been proposed to be solid
waste under this proposed rule (versus the emissions from the
combustion of the non-hazardous secondary materials which will be
covered in the Boiler MACT and CISWI proposed rules). Specifically, the
analysis focuses on the populations around the facilities accepting
non-hazardous secondary materials that under the proposal would be
considered to be solid waste. These wastes would be diverted from units
previously combusting materials in accordance with the CAA section 112
standards for non-wastes according to today's proposed rulemaking. The
analysis includes a demographic evaluation (focusing on the presence of
low-income and minority populations) and possible impacts associated
with solid waste being sent to municipal waste combustors and landfills
(which are projected to receive the majority of the diverted materials
as assessed by the impacts of the CISWI and Boiler MACT proposed rules
using the least cost approach). The analysis also covers additional
diversion implications. The assessment includes impacts on the
abatement of scrap tire piles, stockpiling of secondary materials, and
the disposal of used oil not in compliance with applicable standards.
The impacts of the new proposed emissions standards are included in
the
[[Page 31892]]
Boiler MACT and CISWI proposed rules. The analysis in those proposals
includes the following efforts: identification of sources,
identification of demographic characteristics near sources, evaluation
of area wide air quality, estimation of Boiler MACT/CISWI emission
reductions of HAPs from the proposed standards and work practices.
Outreach
The outreach aspect of the environmental justice analysis will help
stakeholders participate in the rulemaking process and build a dialog
during the comment period for the proposed rule. The first step in the
outreach process took place at the EPA Community Engagement in
Rulemaking Roundtable Discussion in New Orleans, LA on January 28,
2010. This discussion was held concurrently with the National
Environmental Justice Advisory Council public meeting. At the
roundtable meeting, the basics of the advanced notice of proposed
rulemaking were discussed, including how it interacts with EPA's
upcoming CAA section 112 and section 129 rulemakings, and provided an
educational forum to bring together EPA technical experts, community
leaders, nonprofit groups, and others to discuss key themes of the
proposed rulemaking. Based on the results of the roundtable meeting,
the Agency developed an approach for public participation and outreach
during the comment period for the proposal (including planned forums to
discuss the proposed rules and/or learn more about environmental
impacts of the rule). The activities associated with the outreach are
posted at http://www.epa.gov/waste/nonhaz/definition.htm.
List of Subjects in 40 CFR Part 241
Environmental protection, Air pollution control, Waste treatment
and disposal.
Dated: April 29, 2010.
Lisa P. Jackson,
Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations, is proposed to be amended by adding part
241 to read as follows:
PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION
UNITS
Subpart A--General
Sec.
241.1 Purpose.
241.2 Definitions.
Subpart B--Identification of Non-Hazardous Secondary Materials That Are
Solid Wastes When Used as Fuels or Ingredients in Combustion Units
241.3 Standards and procedures for identification of non-hazardous
secondary materials that are solid wastes when used as fuels or
ingredients in combustion units.
Authority: 42 U.S.C. 6903, 6912, 7429.
Subpart A--General
Sec. 241.1 Purpose.
This part identifies the requirements and procedures for the
identification of solid wastes used as fuels or ingredients in
combustion units under section 1004 of the Resource Conservation and
Recovery Act and section 129 of the Clean Air Act.
Sec. 241.2 Definitions.
For the purposes of this subpart:
Contained means the non-hazardous secondary material is stored in a
manner that both adequately prevents releases or other hazards to human
health and the environment considering the nature and toxicity of the
material.
Contaminants means any constituent in non-hazardous secondary
materials that will result in emissions of the air pollutants
identified in CAA section 112(b) and the nine pollutants listed under
CAA section 129(a)(4)) when such secondary materials are burned as fuel
or used as ingredients, including those constituents that could
generate products of incomplete combustion.
Control means the power to direct the policies of the facility,
whether by the ownership of stock, voting rights, or otherwise, except
that contractors who operate facilities on behalf of a different person
as defined in this section shall not be deemed to ``control'' such
facilities.
Generating facility means all contiguous property owned, leased, or
otherwise controlled by the non-hazardous secondary material generator.
Intermediate product means a finished product traded usually among
producers or suppliers rather than end users.
Non-hazardous secondary material means a secondary material that,
when discarded, would not be identified as a hazardous waste under part
261 of this chapter.
Person is defined as an individual, trust, firm, joint stock
company, Federal agency, corporation (including government
corporation), partnership, association, State, municipality,
commission, political subdivision of a state, or any interstate body.
Processing means any operations that transform discarded non-
hazardous secondary material into a new fuel or new ingredient product.
Minimal operations, such as operations that result only in modifying
the size of the material by shredding, do not constitute processing for
purposes of this definition. Processing includes, but is not limited
to, operations that: remove or destroy contaminants; significantly
improve the fuel characteristics of the material, e.g., sizing or
drying the material in combination with other operations; chemically
improve the as-fired energy content; and improve the ingredient
characteristics.
Secondary material means any material that is not the primary
product of a manufacturing or commercial process, and can include post-
consumer material, off-specification commercial chemical products or
manufacturing chemical intermediates, post-industrial material, and
scrap.
Solid waste means the term solid waste as defined in 40 CFR 258.2.
Within control of the generator means that the non-hazardous
secondary material is generated and burned in combustion units at the
generating facility; or that such material is generated and burned in
combustion units at different facilities, if the facility combusting
the material is controlled by the generator; or if both the generating
facility and the facility combusting the material are under control of
the same person as defined in this section.
Subpart B--Identification of Non-Hazardous Secondary Materials That
Are Solid Wastes When Used as Fuels or Ingredients in Combustion
Units
Sec. 241.3 Standards and procedures for identification of non-
hazardous secondary materials that are solid wastes when used as fuels
or ingredients in combustion units.
(a) Except as provided in paragraph (b) of this section, non-hazardous
secondary materials that are combusted are solid wastes, unless a
petition is submitted to, and a determination granted by, the Regional
Administrator pursuant to paragraph (c) of this section. The criteria
to be addressed in the petition, as well as the process for making the
non-waste determination, are specified in paragraph (c) of this
section.
(b) The following non-hazardous secondary materials are not solid
wastes when combusted:
(1) Non-hazardous secondary materials used as a fuel in a
combustion unit that remains within the control of the generator (as
defined in Sec. 241.2) and that meets the legitimacy criteria
specified in paragraph (d)(1) of this section.
[[Page 31893]]
(2) Non-hazardous secondary materials used as an ingredient in a
combustion unit and that meets the legitimacy criteria specified in
paragraph (d)(2) of this section.
(3) Fuel or ingredient products that have undergone processing (as
defined in Sec. 241.2) from discarded non-hazardous secondary
materials and that are used as fuels or ingredients in a combustion
unit, and that meet the legitimacy criteria specified in paragraph
(d)(1) of this section, with respect to fuels, and paragraph (d)(2) of
this section, with respect to ingredients.
(c) The Administrator may grant a non-waste determination that a
non-hazardous secondary material used as a fuel is not discarded and
therefore not a solid waste when combusted. The criteria and process
for making such non-waste determinations includes the following:
(1) Submittal of an application to the Regional Administrator for
the EPA Region where the facility combusting the non-hazardous
secondary material is located by an applicant for a determination that
the non-hazardous secondary material, even though it has been
transferred to a third party, has not been discarded and is
indistinguishable in all relevant aspects from a product fuel. The
determination will be based on whether the non-hazardous secondary
material has been discarded, is a legitimate fuel as specified in
paragraph (d)(1) of this section and on the following criteria:
(i) Whether market participants treat the non-hazardous secondary
material as a fuel rather than a solid waste;
(ii) Whether the chemical and physical identity of the non-
hazardous secondary material is comparable to commercial fuels;
(iii) Whether the non-hazardous secondary material will be used in
a reasonable time frame given the state of the market;
(iv) Whether the constituents in the non-hazardous secondary
material are released to the air, water or land from the point of
generation to the combustion of the secondary material at levels
comparable to what would otherwise be released from traditional fuels;
and
(v) Other relevant factors.
(2) The Regional Administrator will evaluate the application based
on the following procedures:
(i) The applicant must apply to the Regional Administrator for the
non-waste determination addressing the relevant criteria in paragraphs
(c)(1)(i) through (v) of this section.
(ii) The Regional Administrator will evaluate the application and
issue a draft notice tentatively granting or denying the application.
Notification of this tentative decision will be published in a
newspaper advertisement or radio broadcast in the locality where the
facility combusting the non-hazardous secondary material is located,
and be made available on EPA's Web site.
(iii) The Regional Administrator will accept comment on the
tentative decision for at least 30 days, and may also hold a public
hearing upon request or at his discretion. The Regional Administrator
will issue a final decision after receipt of comments and after the
hearing (if any).
(iv) If a change occurs that affects how a non-hazardous secondary
material meets the relevant criteria contained in paragraphs (c)(1)(i)
through (v) of this section after a formal non-waste determination has
been granted, the applicant must re-apply to the Regional Administrator
for a formal determination that the non-hazardous secondary material
continues to meet the relevant criteria and is not discarded and is
thus not a solid waste.
(d) Legitimacy criteria for non-hazardous secondary materials.
(1) Legitimacy criteria for non-hazardous secondary materials used
as fuels in combustion units include the following:
(i) The non-hazardous secondary material must be managed as a
valuable commodity based on the following factors:
(A) The storage of the non-hazardous secondary material prior to
use must not exceed reasonable time frames;
(B) Where there is an analogous fuel, the non-hazardous secondary
material must be managed in a manner consistent with the analogous fuel
or otherwise be adequately contained to prevent releases to the
environment;
(C) If there is no analogous fuel, the non-hazardous secondary
material must be adequately contained so as to prevent releases to the
environment;
(ii) The non-hazardous secondary material must have a meaningful
heating value and be used as a fuel in a combustion unit that recovers
energy.
(iii) The non-hazardous secondary material must contain
contaminants at levels comparable or lower to 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.
(2) Legitimacy criteria for non-hazardous secondary materials used
as an ingredient in combustion units include the following:
(i) The non-hazardous secondary material used as an ingredient must
be managed as a valuable commodity based on the following factors:
(A) The storage of the non-hazardous secondary material prior to
use must not exceed reasonable time frames;
(B) Where there is an analogous ingredient, the non-hazardous
secondary material must be managed in a manner consistent with the
analogous ingredient or otherwise be adequately contained to prevent
releases to the environment;
(C) If there is no analogous ingredient, the non-hazardous
secondary material must be adequately contained to prevent releases to
the environment;
(ii) The non-hazardous secondary material used as an ingredient
must provide a useful contribution to the production or manufacturing
process. The secondary material provides a useful contribution if it
contributes a valuable ingredient to the product or intermediate or is
an effective substitute for a commercial product.
(iii) The non-hazardous secondary material used as an ingredient
must be used to produce a valuable product or intermediate. The product
or intermediate is valuable if:
(A) The material is sold to a third party, or
(B) The material is used as an effective substitute for a
commercial product or as an ingredient or intermediate in an industrial
process.
(iv) The non-hazardous secondary material used as an ingredient
must result in products that contain contaminants at levels that are
comparable or lower in concentration to those found in traditional
products that are manufactured without the non-hazardous secondary
material.
[FR Doc. 2010-10837 Filed 6-3-10; 8:45 am]
BILLING CODE 6560-50-P