
[Federal Register: January 2, 2009 (Volume 74, Number 1)]
[Proposed Rules]               
[Page 41-61]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02ja09-11]                         

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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[[Page 41]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-RCRA-2008-0329; FRL-8758-5]
RIN 2050-AG44

 
Identification of Non-Hazardous Materials That Are Solid Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advanced notice of proposed rulemaking (ANPRM).

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is seeking 
comment on which non-hazardous materials are or are not solid waste 
under the Resource Conservation and Recovery Act (RCRA). The Agency is 
also seeking comment on a number of specific questions concerning the 
meaning of ``solid waste'' under RCRA, as it applies to non-hazardous 
waste programs. We are issuing this ANPRM to assist the Agency in 
developing certain standards under sections 112 and 129 of the Clean 
Air Act (CAA). The meaning of ``solid waste'' as defined under RCRA is 
of particular importance since CAA section 129 states that the term 
``solid waste'' shall have the meaning ``established by the 
Administrator pursuant to [RCRA].''

DATES: Comments must be received on or before February 2, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2008-0329, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: Comments may be sent by electronic mail (e-mail) 
to: rcra-docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA-2008-0329. 
In contrast to EPA's electronic public docket, EPA's e-mail system is 
not an ``anonymous access'' system. If you send an e-mail comment 
directly to the docket without going through EPA's electronic public 
docket, EPA's e-mail system automatically captures your e-mail address. 
E-mail addresses that are automatically captured by EPA's e-mail system 
are included as part of the comment that is placed in the official 
public docket, and made available in EPA's electronic public docket.
     Fax: Comments may be faxed to 202-566-9744, Attention 
Docket ID No. EPA-HQ-RCRA-2008-0329.
     Mail: Advanced Notice of Proposed Rulemaking--
Identification of Non-Hazardous Materials That Are Solid Waste, 
Environmental Protection Agency, Mail code: 2822T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460. Please include a total of two copies. 
Attention Docket ID No. EPA-HQ-RCRA-2008-0329.
     Hand Delivery: Deliver two copies of your comments to the 
Advanced Notice of Proposed Rulemaking--Identification of Non-Hazardous 
Materials That Are Solid Waste, EPA/DC, EPA West, Room 3334, and 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 (8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays), 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. We also request that interested parties who would 
like information they previously submitted to EPA to be considered as 
part of this action, identify the relevant information by docket entry 
numbers and page numbers.
    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 OSWER 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 
OSWER Docket is 202-566-0270.

FOR FURTHER INFORMATION CONTACT: For questions regarding the 
development of this ANPRM, contact Michael Galbraith, Office of Solid 
Waste (5302P), U.S. Environmental Protection Agency, Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, 
telephone (703) 605-0567, e-mail address: galbraith.michael@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General 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 generator category            NAICS            Major boiler type and primary industry category                        NAICS
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Iron and Steel Mills....................     331111  Industrial Boilers:
                                                    ----------------------------------------------------------------------------------------------------
                                          .........  Food Manufacturing............................................  311, 312
Scrap Tires.............................  .........  Pulp and Paper Mills..........................................  322
Passenger cars and trucks...............        N/A  Chemicals and Allied Products.................................  325
Other rubber product manufacturing......     326290  Petroleum Refining............................................  324
                                          .........  Metals........................................................  331, 332
Logging.................................     113310  Other Manufacturing...........................................  313, 339, 321, 333, 336, 511, 326,
                                                                                                                      316, 327
Sawmills and Wood Preservation..........      32111
                                                    ----------------------------------------------------------------------------------------------------
Veneer, Plywood, and Engineered Wood          32121  Commercial Boilers:
 Product Manufacturing.
Pulp, Paper, and Paperboard Mills.......       3221  Office........................................................  813, 541, 921
Cattle Ranching and Farming.............       1121  Warehouse.....................................................  421,422
Hog and Pig Farming.....................       1122  Retail........................................................  441, 445-454
Poultry and Egg Production..............       1123  Education.....................................................  611
Sheep and Goat Farming..................       1124  Public Assembly...............................................  624,
Horses and Other Equine Production......     112920  Lodging, Restaurant...........................................  721, 722
Crop Production.........................        111  Health Care Facilities........................................  621
Support Activities for Crop Production..      11511  Other.........................................................  922140, others
Food Manufacturing......................        311
                                                    ----------------------------------------------------------------------------------------------------
Beverage and Tobacco Product                    312  Common Non-Manufacturing Boilers:
 Manufacturing.
                                                    ----------------------------------------------------------------------------------------------------
Construction of Buildings...............        236  Agriculture (crop & livestock production).....................  111, 112, 115
Site Preparation Contractors............     238910  All Mining....................................................  212, 211
Landscaping Services....................     561730  Construction..................................................  235
Iron and Steel Mills....................     331111
                                                    ----------------------------------------------------------------------------------------------------
Fossil Fuel Electric Power Generation...     221112  Other Boilers:
                                                    ----------------------------------------------------------------------------------------------------
Cement Manufacturing....................     327310  Electric Utility Boilers......................................  221100
Bituminous Coal and Lignite Surface          212111
 Mining.
Bituminous Coal Underground Mining......     212112  Non HW Burning Cement Kilns...................................  327310
Anthracite Mining.......................     212113
Sewage Treatment Facilities.............     221320
Solid Waste Landfill....................     562212
Metal-casting industry..................       3115
Glass and Glass Product Manufacturing...       3272
Packaging...............................      32611
Plastic manufacturers...................     325211
Electrometallurgical Ferroalloy Product      331112
 Manufacturing.
Recycling services for degreasing            325998
 solvents manufacturing.
Solvent dyes manufacturing..............     325132
Solvents made in petroleum refineries;       324110
 and
Automotive repair and replacement shops.     811111
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    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 FOR FURTHER INFORMATION CONTACT section.

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 
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.

[[Page 43]]

     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, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    The United States Court of Appeals for the District of Columbia 
Circuit vacated and remanded two Agency rules promulgated under the 
CAA--The Commercial and Industrial Solid Waste Incineration (CISWI) 
definitions rule (``CISWI Definitions Rule''), issued under CAA section 
129, and the Industrial Boilers Maximum Achievable Control Technology 
(MACT) standards rule (``Boilers Rule''), issued under CAA section 112. 
The court concluded that EPA erred by excluding units that combust 
solid waste for the purposes of energy recovery from the Definitions 
Rule and including such units in the Boilers Rule. In response to the 
court's decision, EPA is preparing to establish new standards under CAA 
sections 112 and 129 for the various units subject to each section.
    Congress added section 129 to the CAA in 1990 specifically to 
address emissions from solid waste combustion. CAA section 129 directs 
EPA to promulgate emission standards for ``solid waste incineration 
units.'' 42 U.S.C. 7429(a)(1). The term ``solid waste incineration 
unit'' is defined, in pertinent part, to mean ``any facility which 
combusts any solid waste material from commercial or industrial 
establishments * * *'' Id. at section 7429(g)(1). However, the CAA 
excludes the following types of units from classification as solid 
waste incineration units that are subject to the section 129 standards: 
(1) Incinerators or other units required to have a permit under section 
3005 of RCRA; (2) materials recovery facilities (including primary and 
secondary smelters) which combust waste for the primary purpose of 
recovering metals; (3) qualifying small power production facilities, as 
defined in section 3(17)(C) of the Federal Power Act, or qualifying 
cogeneration facilities, as defined in section 3(18)(B) of the Federal 
Power Act, which burn homogeneous waste (such as units which burn tires 
or used oil, but not including refuse-derived fuel) for the production 
of electric energy or in the case of qualifying cogeneration facilities 
which burn homogeneous waste for the production of electric energy or 
steam or forms of useful energy (such as heat) which are used for 
industrial, commercial, heating or cooling purposes, or (4) air curtain 
incinerators, provided that such incinerators only burn wood wastes, 
yard wastes and clean lumber and that such air curtain incinerators 
comply with the opacity limitations to be established by the 
Administrator by rule. CAA section 129 also 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).\1\ RCRA 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, but does not 
include solid or dissolved material in domestic sewage, or solid or 
dissolved materials in irrigation return flows or industrial discharges 
which are point sources subject to permits under section 402 of the 
Federal Water Pollution Control Act, as amended (86 Stat. 880), or 
source, special nuclear, or byproduct material as defined by the Atomic 
Energy Act of 1954, as amended (68 Stat. 923).'' Section 1004 (27).
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    \1\ 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.
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A. CISWI Rule/CISWI Definitions Rule/Boiler Rule

    EPA fulfilled its statutory obligation under CAA section 129 when 
it promulgated a final rule setting forth performance standards and 
emission guidelines (EG) 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 New Source Performance 
Standards (NSPS) and EG adopted for CISWI units must reflect the 
maximum degree of reduction in emissions of air pollutants that the 
Administrator determines is achievable, taking into consideration the 
cost of achieving such emission reduction, and any non-air quality 
health and environmental impacts and energy requirements. This level of 
control is commonly referred to as MACT. 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).
    NSPS apply to new stationary sources--that is, sources whose 
construction begins after the NSPS is proposed or sources that are 
reconstructed or modified on or after a specified date. The EG are 
similar to the NSPS, except that they apply to existing sources--that 
is, sources whose construction begins on or before the date the EG are 
proposed, or sources that are reconstructed or modified before a 
specified date. Unlike NSPS, the EG are not enforceable until EPA 
approves a state plan or adopts a federal plan for implementing and 
enforcing them, and the state or federal plan becomes effective.
    The CISWI Rule established emission limitations for new and 
existing CISWI units for the following pollutants (or surrogates): 
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 subject to judicial challenge in Sierra Club v. 
EPA (No. 01-1048) (D.C. Cir.) and a separate petition for 
reconsideration of the final rule. The petition argued that the final 
rule was procedurally defective because EPA had failed to provide 
adequate notice and an opportunity to comment on the definitions 
adopted in the final rule. Also, after promulgation of the CISWI Rule, 
the court issued its decision in Cement Kiln Recycling Coalition v. 
EPA, 255 F.3d 855 (D.C. Cir. 2001) (``Cement Kiln''). In this decision, 
the court rejected certain common elements of EPA's MACT methodology. 
As a result, 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 the voluntary remand and 
remanded, without vacatur, the CISWI Rule back to EPA, thereby 
terminating the case (see Order dated September 6, 2001). 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). In 
addition to taking a voluntary remand of the CISWI Rule, EPA also 
granted an administrative petition for reconsideration on February 17, 
2004 related to the definitions of ``solid waste,'' ``commercial or 
industrial

[[Page 44]]

waste'' and ``commercial and industrial solid waste incineration unit'' 
in the CISWI Rule.
    EPA responded to the petition for reconsideration on September 22, 
2005, by re-promulgating the 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 distinguished solid waste 
incinerators from boilers/furnaces based on the function of the units. 
Solid waste incinerators included units designed and operated to 
discard materials through high temperature combustion, but excluded 
units designed and operated to recover energy for a useful purpose.
    The CISWI Definitions Rule was the subject of judicial challenge in 
NRDC v. EPA (489 F.3d 1250 (D.C. Cir. 2007)) where the court vacated 
the definitions of ``commercial or industrial solid waste incineration 
unit'' and ``commercial or industrial waste.'' The court observed that, 
although the functional distinction EPA drew between boilers/furnaces 
and incinerators ``may well be reasonable,'' the statute unambiguously 
requires any unit that combusts ``any solid waste material at all''--
regardless of whether the material is being burned as a fuel--to be 
regulated as a ``solid waste incineration unit.'' Id. at 1260. The 
court also vacated and remanded the Boilers Rule, concluding that EPA 
erred by excluding units that combust solid waste for the purposes of 
energy recovery from the CISWI Rule and including such units in the 
Boilers Rule.
    Therefore, the critical issue in responding to the court's decision 
is for EPA to establish, under RCRA, which non-hazardous secondary 
materials \2\ constitute ``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 
material is not a ``solid waste'' under RCRA and such material is 
burned for fuel value or used as an ingredient in a manufacturing 
process, then under the court's decision, the combustion unit would 
properly be regulated pursuant to CAA section 112. Alternatively, if 
such material is a ``solid waste'' under RCRA and is burned for fuel 
value or used as an ingredient in a manufacturing process and such 
ingredient is combusted, then the unit must be regulated under CAA 
section 129.
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    \2\ 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.
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B. Sections 112 and 129 of the CAA

    CAA section 112 requires EPA to promulgate regulations to control 
emissions of 187 \3\ hazardous air pollutants (HAP) from major sources 
\4\ in each source category listed by EPA under section 112(c). The 
statute requires the regulations 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. As 
noted previously, this level of control is commonly referred to as 
MACT.
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    \3\ EPA has delisted 3 of the 190 HAP initially listed in 
section 112(b)(1): Methyl ethyl ketone, glycol ethers, and 
caprolactam.
    \4\ 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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    For new sources, MACT standards cannot be less stringent than the 
emission control achieved in practice by the best-controlled similar 
source (see CAA section 112(d)(3)). The MACT standards for existing 
sources cannot be less stringent than the average emission limitation 
achieved by the best-performing 12 percent of existing sources for 
categories and subcategories with 30 or more sources, or the best-
performing 5 sources for categories or subcategories with fewer than 30 
sources (Id). This level of control is usually referred to as the MACT 
``floor,'' the term used in the Legislative History.
    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 MACT 
standards for area sources of HAP emissions.\5\ On the other hand, the 
CAA section 129 MACT standards apply across the board to all solid 
waste incineration units in a given category regardless of size. 
Second, CAA section 129 requires that emission standards be set for 
specific HAP and certain pollutants that are not classified as CAA 
section 112 HAP.\6\ Specifically, CAA section 129 requires numeric 
emission limitations for the following nine pollutants: Cadmium, carbon 
monoxide, dioxins/furans, hydrogen chloride, lead, mercury, 
NOX, particulate matter (total and fine), opacity (as 
appropriate), and SO2.\7\ The CAA section 129 pollutants 
listed above represent the minimum that must be regulated; EPA has the 
discretion to establish standards for other pollutants as well. Third, 
CAA section 129 includes 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 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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    \5\ 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).
    \6\ This is in reference to the initial list of 190 HAPs 
provided by Congress.
    \7\ 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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III. Beneficial Use of Secondary Materials

A. Introduction

    EPA supports exploring regulatory alternatives that achieve the 
following goals: Maximizing the usefulness of secondary materials in 
production, reducing or eliminating waste, conserving energy, and 
reducing harmful air emissions. Such alternatives should ensure 
protection of human health and the environment, and one alternative 
would be an integrated management approach that includes emissions and 
source reduction and

[[Page 45]]

recycling, as well as energy capture and resource recovery from 
secondary materials. For example, within the context of RCRA,\8\ the 
Agency seeks to achieve these goals through promotion of the use or 
reuse of various secondary materials, provided such reuse activity is 
protective of human health and the environment. EPA seeks to accomplish 
this in conjunction with our state partners through research, analysis, 
communication, and outreach.
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    \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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    To help put this discussion into context, the Agency notes that 
non-hazardous secondary materials are widely used today as fuels or 
ingredients in industrial processes. We expect this trend will continue 
with higher prices for energy and materials and advancing technology in 
secondary material use.
    The nature of what constitutes a legitimate fuel or ingredient 
reflects the availability of natural resources and technology 
development. The use of materials from a variety of non-traditional 
sources, including the use of energy-containing secondary materials, 
may have a significant role to play in our resource conservation 
efforts.
    The use of non-hazardous secondary materials as alternative fuels 
and ingredients in manufacturing processes using combustion has a long 
history, and is increasingly becoming an accepted characteristic of the 
modern industrial economy.\9\ Under conditions in the past, many 
secondary materials may have been managed as wastes--that is, they were 
discarded. However, if the cost of fossil fuel increases and technology 
advances, such materials become comparatively more valuable as an 
energy source, ingredient, or both. Furthermore, the use of some of 
these materials is likely to contribute to certain emission reductions 
and may increase other emissions.\10\
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    \9\ For example, use of tire-derived fuel in the cement industry 
began in Japan and Germany in the 1970s. See docket item titled 
``Scrap Tire Markets in the United States,'' RMA, November 2006. 
Also, the market for woody biomass is strong in Europe, where this 
material sells for $100 to $125 per ton. See docket item titled 
``Biocycle, Advancing Composting, Organics Recycling and Renewable 
Energy,'' July 2008.
    \10\ See the Materials Characterization Papers in the docket 
established for this action for examples of emission comparisons.
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    The reuse of secondary materials may result in other benefits. 
First, the use of secondary materials could result in reduction of 
imported fuel. Second, using secondary materials for fuel or ingredient 
value has an additional benefit of reducing the environmental impacts 
caused by the disposal of such materials, if such disposal has 
environmental impacts. For example, use of tires as a fuel source means 
that those tires are no longer accumulated in huge piles where there 
are known incidents of them catching fire and serving as breeding 
grounds for disease carrying mosquitoes.11 12
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    \11\ Although this notice highlights the benefits of using 
secondary materials as fuels, EPA recognizes that there may be other 
uses of secondary materials that in some cases are preferable from 
an energy perspective. For example, re-refining used oil is reported 
to save more energy content of the used oil than burning for energy 
recovery.
    \12\ See docket entry titled ``Scrap Tire Cleanup Guidebook, 
January 2006,'' for more discussion on hazards associated with tire 
piles.
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    The remainder of this section first presents an overview of the 
secondary materials and their contribution to improved economic 
efficiency. Then, we briefly summarize selected materials management 
programs and successes. Finally, we discuss known use patterns for 
selected secondary materials and briefly summarize some economic and 
environmental benefits derived from the use of such materials.

B. Overview of Secondary Materials and Their Contribution to Economic 
Efficiency

    There exists a wide and diverse range of secondary materials used 
as fuels and/or ingredients, or otherwise beneficially used. Although 
sometimes referred to as wastes, these secondary materials may, in most 
cases, be more appropriately defined as ``by-products,'' \13\ 
reflecting their inherent resource recovery value in the generation/
production of heat, energy, and/or marketable products. This inherent 
value exists with or without processing, depending upon the material. 
These secondary materials commonly include, but are not limited to, the 
following: scrap tires; scrap plastics; the biomass group (pulp and 
paper residuals, forest derived biomass,\14\ agricultural residuals, 
food scraps, animal manure, gaseous fuels); the construction and 
demolition material group (building related, disaster debris, and land 
clearing debris); spent solvents; coal refuse; waste water treatment 
sludge; used oil; blast furnace slag; cement kiln dust (CKD); coal 
combustion products (e.g., fly ash, bottom, ash, boiler slag); foundry 
sand; silica fume; and secondary glass material. These secondary 
materials can provide significant and widespread environmental and 
economic benefits when legitimately used/reused as an effective 
substitute for, or supplement to, primary materials.
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    \13\ 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.
    \14\ More commonly referred to as scrap wood materials.
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    As certain primary materials become costly, the use of secondary 
materials is likely to become more economical. Managers of 
manufacturing or energy-production units that use secondary materials 
as a substitute for primary fuels or ingredients are obviously doing so 
for their own interests, including short and/or long-term competitive 
advantage. In general, industry will use secondary materials so long as 
the final price to the user is equivalent or less than the price for 
comparable primary material(s), and the product(s) derived from these 
materials is of equal (or better) quality. Provided industry is able to 
continue to safely use secondary materials, economic efficiency may be 
improved. While the issue raised in this ANPRM is whether specific 
secondary materials are properly considered legitimate products, or 
RCRA solid wastes, EPA notes that the regulatory status of the fuel or 
ingredient may, as mentioned above, potentially affect choices made by 
industrial concerns in selecting raw materials.

C. Materials Management Programs and Successes

    EPA, like environmental agencies in other countries, is exploring 
approaches to waste management that employs the concepts of life cycle 
assessment \15\ and full cost accounting.\16\ The life cycle approach 
has been advanced in the EU where, for the past several years, the EU 
has been focused on developing a strategy designed to minimize and 
recycle secondary materials,\17\ while recognizing the importance of 
full life cycle analysis within a comprehensive materials management 
program. Japan has gone even further, passing ambitious laws and 
establishing an

[[Page 46]]

effective initiative \18\ focused on creating a ``closed loop'' 
economy.
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    \15\ Note: 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.
    \16\ Full cost accounting is an accounting system that 
incorporates economic, environmental, health, and social costs of a 
product, action, or decision.
    \17\ For example, The Closed Substance Cycle and Waste 
Management Act of 1994 (Germany), the German Auto Recycling Law, 
Directive 2006/66/EC of the European Parliament (EU battery 
recycling law).
    \18\ The Japanese law Promoting the Utilization of Recyclable 
Resources, 1991, the Japanese Recycling Law, 2001 (the world's first 
``take back'' law), and The Ecofactory initiative (Ministry of 
International Trade and Industry).
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    EPA's materials management approach is focused on the three R's: 
Reduce, reuse, and recycle.\19\ This approach helps ensure more 
efficient resource and material use through the integration of both 
environmental and economic components in the management of materials. 
In 2002, EPA initiated the Resource Conservation Challenge (RCC). This 
program was designed to help implement the Agency's approach to 
materials management. The RCC Program is currently focused on four 
specific material groups: Municipal solid waste; green initiatives, 
such as electronics; industrial materials; and priority and toxic 
chemicals. The Agency also has materials management programs focused 
specifically on used oil and scrap tires.\20\ Other more broadly 
focused EPA programs include the Office of Solid Waste's (OSW's) 
Product Stewardship Program and the Comprehensive Procurement 
Guidelines. In addition, several states have also established life 
cycle approaches to materials management (e.g., California, Minnesota, 
Washington, and Vermont).
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    \19\ See: http://www.epa.gov/epawaste/rcc/basic.htm.
    \20\ See: http://www.epa.gov/waste/conserve/materials/usedoil/
index.htm, and, http://www.epa.gov/waste/conserve/materials/tires/
index.htm.
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    The Agency has an interest in understanding the environmental and 
economic tradeoffs associated with life cycle implications of our 
materials management programs. For example, we have conducted 
preliminary life-cycle analyses of beneficial impacts associated with 
recycling of foundry sand and selected coal combustion products.\21\ It 
is also one of our mandates under RCRA Subtitle F--Federal 
Responsibilities, which states the ``Administrator shall provide 
information on the technical and economic aspects of developing 
integrated resource conservation or recovery systems * * *'' (Sec. 
6003). For the examples cited above, the Agency used a rigorous 
analytical approach to evaluate the environmental and economic benefits 
associated with the management of those materials. This rigorous 
analytical approach to the development of materials management programs 
helps to ensure that we are not promoting economically or 
environmentally inefficient programs. Where we have evaluated the 
benefits of secondary materials management programs, such as the RCC's 
Program as described above for uses of foundry sand and selected coal 
combustion products, our analyses have shown those programs provide 
benefits.
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    \21\ See docket items titled ``Waste and Materials-Flow 
Benchmark Sector Report: Beneficial Use of Secondary Materials--Coal 
Combustion Products, Final Report,'' USEPA, February 12, 2008 and 
``Waste and Materials-Flow Benchmark Sector Report: Beneficial Use 
of Secondary Materials--Foundry Sand, Final Report,'' USEPA, 
February 12, 2008.
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    We believe that it is critical to interpret which secondary 
materials are not ``solid wastes'' pursuant to RCRA to ensure the 
continued legitimate use of secondary materials in combustion 
processes. This, in turn, will maintain the continued environmental and 
economic benefits from these programs.

D. Secondary Materials Use and Benefits

    This part builds on the discussion in part ``B'' of this section 
and provides greater detail on some of the non-hazardous secondary 
materials that are commonly used by the industrial community. We 
summarize key information that is available on the known generation, 
use, and benefits of these secondary materials. The purpose of this 
part is to describe the Agency's understanding regarding the wide-scale 
acceptance, use, and value of these secondary materials in U.S. 
industrial markets. More detailed information on a wide array of 
secondary materials potentially affected by this action is presented in 
the Materials Characterization Papers, which can be found in the Docket 
established for today's action.
    The Materials Characterization Papers outline publicly and readily 
available information concerning material characteristics relevant to 
this ANPRM. Specifically, for each material group, the papers endeavor 
to: (a) Provide a clear definition of the material; (b) identify annual 
quantities generated and used; (c) outline current combustion and non-
combustion uses, along with current quantities landfilled or otherwise 
stored; (d) discuss management and combustion processes utilized; and 
(e) summarize potential environmental and economic impacts from the use 
of each material. The available information across these components of 
each paper and the individual materials is often limited or uncertain. 
Thus, these papers represent our initial effort to gather and present 
relevant data. The Agency seeks comment on additional data sources that 
may enhance its understanding and knowledge of these materials.
    Non-hazardous secondary materials are widely used as fuels and/or 
ingredients in virtually all types of boilers (e.g., industrial, 
commercial, institutional), cement kilns, lightweight aggregate kilns 
(LWAKs), and other industrial furnaces (e.g., glass furnaces). These 
facilities burn or otherwise use in the production process hundreds of 
millions of tons of secondary materials each year. The total number of 
facilities using secondary materials each year as a substitute for 
primary fuels and/or ingredients is unknown, but our best estimate 
indicates that approximately 200,000 units use secondary materials as a 
substitute for primary fuels and/or ingredients.\22\
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    \22\ Identification of Non-Hazardous Materials That Are Solid 
Waste. EPA Exhibit 1: Preliminary Estimate of Total Nonhazardous 
Secondary Materials Used Annually in Boilers and Kilns. Sept. 24, 
2008.
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    The manner in which non-hazardous secondary materials are 
processed, the nature of the materials, and the ways in which they are 
used or recycled generally establishes whether such materials are 
wastes or ``by-products.'' Based on our research for the Materials 
Characterization Papers, we have identified eight non-hazardous 
secondary material fuels or fuel groups and six non-hazardous 
ingredients, or ingredient groups. The eight fuel source materials are: 
The biomass group (pulp and paper residuals, forest derived biomass, 
agricultural residues, food scraps, animal manure, 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 are: Blast furnace slag; CKD; coal 
combustion product group (fly ash, bottom ash, and boiler slag); 
foundry sand; silica fume; and secondary glass material.
    Based on publicly available information, we believe that these 
materials account for the vast majority of all non-hazardous secondary 
materials used as fuels and/or ingredients in the U.S. However, the 
Agency solicits comment on whether there are other non-hazardous 
secondary materials that are also used as a fuel or ingredient that we 
have not identified, either in this notice or in the Materials 
Characterization Papers. If so, the Agency requests that commenters 
provide information on such materials, including the composition or 
characteristics of such materials, how much of the secondary material 
is produced and utilized, how it is utilized--that is, is it a fuel or 
an

[[Page 47]]

ingredient, and how is it generally handled. Detailed information will 
be the most useful as we move forward in the rulemaking effort.
    The annual use patterns, quantities, and benefits associated with 
some of these secondary materials are well established, while less is 
known about other secondary materials. Presented below are brief 
summaries of the documented usage, trends in usage, and benefits 
associated with some of these widely used secondary materials. As 
mentioned above, the Materials Characterization Papers, available in 
the docket established for today's action, present more detailed 
information on the quantities and use patterns, characteristics, 
composition, management and benefits associated with all eight 
secondary fuel materials/groups and the six secondary ingredient 
materials/groups we have identified.
    Biomass \23\--When used as a secondary material fuel, biomass 
consists primarily of pulp and paper mill residuals, forest derived 
biomass, agricultural residuals, food scraps, animal manure, and 
gaseous fuels. Sectors that generate and/or use these valuable biomass 
commodities include: Crop production; support activities for crop 
production; food manufacturing; beverage and tobacco product 
manufacturing; logging; pulp, paper, and paperboard mills; sawmills and 
wood preservation; veneer, plywood, and engineered wood product 
manufacturing; cattle ranching and farming; hog and pig farming; 
poultry and egg production; sheep and goat farming; horses and other 
equine production; and, sewage treatment facilities.
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    \23\ Source: Materials Characterization Paper in Support of the 
Advanced Notice of Proposed Rulemaking: Identification of Non-
Hazardous Materials That Are Solid Waste--Biomass.
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    Timber harvesting and the manufacture of lumber generate large 
amounts of forest-derived biomass used as secondary material fuels. 
These woody materials may originate directly from the forest as logging 
residues (e.g., tree limbs, tops, needles, leaves), or from timber 
processing mills (e.g., clean and unadulterated bark, sawdust, trim, 
screenings, tree harvesting residuals). Logging and other forest 
harvesting removal residues are estimated to range from 62 million tons 
per year (tpy) to 103 million tpy, with an estimated 42 to 93 million 
tpy available for recovery and beneficial use. Total primary mill \24\ 
residue production is estimated to range from 87 to 91 million tpy. 
Experts predict that by 2050, logging and other forest harvesting 
removal residues will increase by 23 million tpy and availability of 
secondary mill residues (i.e., residues such as board, trim and 
breakage from the manufacture of reconstituted wood/panel products) 
will increase by 16 million tpy.
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    \24\ Lumber and veneer mills.
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    Available information indicates that logging residues, although a 
good potential source for secondary material fuel, are not currently 
collected for use as a fuel on any large scale. Primary mill residues, 
however, are highly valuable as feedstocks in combustion, as well as 
for non-combustion purposes.\25\ Approximately 42 percent of all 
primary mill residues are used as a fuel, including 76 percent of bark 
residues, 12 percent of coarse residues, and 56 percent of fine 
residues. These materials are burned in a variety of boilers, including 
Dutch ovens, fuel cell ovens, spreader stokers, suspension-fired 
boilers, and fluidized bed combustion boilers. Forest-derived materials 
may also be co-fired with other fuels, primarily solid fuels such as 
coal. Logging and primary milling residues may be chipped or sorted 
before being used, but otherwise generally undergo minimal processing. 
The use of forest-derived materials has been found to result in 
generally higher PM emissions than natural gas or distillate oil, but 
lower PM emissions than coal or residual oil systems. Estimated 
NOX emissions associated with the use of wood are similar to 
those associated with distillate and lower than the NOX 
emissions for other conventional fuels, while wood combustion results 
in lower SO2 emissions than most conventional fuels. 
Finally, the use of forest-derived materials results in reduced fuel 
costs to the user and may provide environmental benefits associated 
with avoided virgin material \26\ extraction and, in some cases, 
avoided transportation.
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    \25\ Primary mill residues tend to be clean, uniform, 
concentrated, and with a low-moisture content. As a result, these 
materials generally require little processing.
    \26\ The term ``Virgin material,'' as used in this Notice means 
resources extracted from nature in their raw form, such as timber, 
metal ore, coal, petroleum, etc.
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    The forest products industry generates large quantities of 
secondary material biomass fuels in the form of pulp and paper 
residues, including sludges and black liquor.\27\ However, black 
liquors that are reclaimed in a pulping liquor recovery furnace and 
then reused in the pulping process are excluded from the definition of 
solid waste under Subtitle C of RCRA, unless speculatively accumulated, 
as defined in 261.1(c), or reclaimed in another manner. Pulp and paper 
mills produce the dry biomass equivalent of between 4.2 and 5.8 million 
tons of wastewater treatment sludges. In 2002, approximately 22 percent 
of all pulp and paper mill sludges were used in hog fuel boilers as a 
supplementary or stand-alone fuel. An undetermined amount was used as a 
cement kiln feedstock and as a fuel pellet ingredient. Anaerobic sludge 
production also generates methane. Sludges typically undergo mechanical 
dewatering before being combusted. The use of mill sludges in onsite 
boilers results in reduced fuel costs for the facility, and may provide 
environmental benefits associated with avoided virgin material 
extraction and transportation.
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    \27\ See 40 CFR 261.4(a)(6).
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    Agricultural residuals include crop residues remaining in the 
fields after harvest (primary residues) and processing residues 
generated from the harvested portions of crops during food, feed, and 
fiber production (secondary residues). Current annual production of 
agricultural residues from major crops is estimated to be around 500 
million dry tpy. These primary biomass crops include barley, canola, 
corn, cotton, dry beans, flax, oats, peanuts, peas, potatoes, rice, 
rye, safflower, sorghum, soybeans, sugarcane, sunflowers, and wheat. 
Anywhere from 113 million tpy to 173 million tpy is estimated to be 
available for removal from the fields in a sustainable manner (i.e., 
while maintaining cropland fertility and quality). However, the total 
quantity of agricultural residues actually used for fuel on an annual 
basis is difficult to determine from the available literature. Total 
primary agricultural residue production fluctuates with the amount of 
U.S. land in crop production and the relative proportion of crops on 
this land. In 2007, we estimate that approximately 6.0 million tons of 
agricultural residues were burned, 92 percent of which [on a British 
thermal unit (Btu) basis] provided useful thermal output. The remaining 
8 percent was used to produce electricity. Around 71 percent of total 
agricultural residues burned (Btu basis) were secondary residues used 
in the food processing industry, mostly sugarcane bagasse at sugar 
mills. The remaining 29 percent was used in the Agriculture, Forestry, 
and Mining, and the Paper and Allied Products industries. Corn stover 
and other agricultural residues can be used as a heat and power source 
for the production of corn and cellulosic ethanol. Agricultural 
residues are generally burned as fuel in fuel cells, horseshoe boilers, 
and spreader stoker boilers. Aside from occasionally drying,

[[Page 48]]

agricultural residues do not generally require processing prior to 
being utilized as a fuel. The use of agricultural residues as a 
substitute for coal in an existing power plant reduces SO2, 
NOX, and other emissions and eliminates the environmental 
impacts associated with the extraction and processing of the 
traditional fuels.
    Food scraps are generated at all stages of the food production 
system, including farming, storage, processing, wholesaling, retail, 
and consumption. Food scraps, broadly defined, include both the portion 
of harvested crops and livestock that does not enter the retail market 
and the portion of food discarded by retailers and consumers. This 
ANPRM is concerned only with industrial food scraps; food scraps 
generated by retailers and consumers are not considered because they 
enter the waste stream as municipal solid waste. The total quantity of 
industrial food scraps produced on an annual basis is not readily 
accessible from publically available information. Industrial food 
scraps are known to be burned in lodging and restaurant boilers. 
However, the annual quantities burned and the distribution of this use 
is unknown. The use of food scraps with meaningful fuel value in 
lodging and restaurant boilers eliminates the environmental impacts 
associated with the extraction and processing of the traditional fuels.
    Animal manure is the excrement of livestock reared in agricultural 
operations. Animal manure may also include straw, sawdust, and other 
residues used as animal bedding. Gaseous fuels may be derived from 
landfills (landfill gas) or from animal manure and solid biomass 
(biogas), such as crop silage. Biogas is generated via anaerobic 
digestion, a multi-stage process whereby bacteria convert 
carbohydrates, fats, and proteins to methane. Domestic livestock 
production generates over a billion tons of manure annually, which if 
used to produce biogas would yield approximately 19.4 million tons of 
methane. Anaerobic digestion of current manure production managed in 
ponds, anaerobic lagoons, and holding tanks could yield a maximum of 
about 2.4 million tpy of methane. Current production, however, is about 
0.07 million tons from 111 operating digesters.
    We estimate that about 35 million dry tons of current manure 
production could be used for bioenergy purposes. Livestock production 
has become increasingly concentrated in recent years, facilitating the 
collection of manure for bioenergy purposes. As bioenergy conversion 
technologies improve, the opportunity for utilizing animal manure for 
bioenergy production may likely increase. Biogas produced on dairy 
farms is typically used to heat water for purposes of cleaning and 
sanitizing milking pipelines and equipment in dairy operations. Biogas 
generated on farms is typically burned on-site directly in boilers and, 
to a lesser extent, is burned in space heating. Biogas benefits include 
displacement of fossil fuels, primarily natural gas. Furthermore, the 
use of biogas as a replacement for natural gas avoids the emissions 
associated with the extraction and processing of natural gas.
    Scrap tires \28\--Scrap tires are used tires that are recycled when 
they can no longer be used as tires. This may occur because of normal 
tread wear, punctures, destruction in accidents, or any number of other 
reasons. Scrap tires are generated from the replacement of tires on 
passenger and commercial vehicles. Consumers and industry in the U.S. 
generated 299.6 million tires in 2005; this represents approximately 
4.9 million tons of tires, assuming an average of 33 pounds per tire. 
Approximately 52 percent of the total number of scrap tires generated 
in 2005 went for tire-derived fuel (TDF).\29\ Although energy recovery 
is the most common use of scrap tires, there are many non-fuel uses for 
scrap tires, including: Civil engineering (i.e., construction of 
landfills and roads); cut/punched/stamped into other products (i.e., 
floor mats); and, rubber modified asphalt. While some facilities are 
capable of burning whole tires, a large percentage of tires are sent to 
processors where they are shredded or chipped prior to being sent to 
plants for use as TDF. Facilities that burn whole tires often charge a 
tipping fee for acceptance of these tires, while chipped tires must be 
purchased. TDF is used in a variety of units, including boilers and 
industrial furnaces, such as kilns. It can be used to supplement and/or 
replace a wide range of fuels including coal, coke, fuel oil, natural 
gas, and wood. The use of tires for fuel has increased from 24.5 
million tires in 1990 to 155.1 million tires in 2005. During this same 
period, the number of tires in stockpiles declined by nearly 82 
percent, going from approximately one billion tires to just under 200 
million, a significant environmental accomplishment. The majority of 
tires that have been removed from these piles have been used in 
industrial boilers and kilns for energy recovery. This trend may 
increase if the cost of conventional fossil fuels increases.
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    \28\ Source: Materials Characterization Paper in Support of the 
Advanced Notice of Proposed Rulemaking: Identification of Non-
Hazardous Materials That Are Solid Waste--Scrap Tires.
    \29\ TDF has a heating value of around 13,000 to 16,000 Btu/lb.
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    Emissions test data compiled by EPA in 1997 suggest that 
substituting scrap tires for coal in electric utility boilers may lead 
to reductions in NOX and particulate matter emissions,\30\ 
but show no clear pattern for SOX and zinc emissions.\31\ 
Studies indicate that there is an increase in zinc emissions when TDF 
is used at industrial boilers and pulp and paper mills, while zinc 
emission data are inconclusive for cement kilns and utility boilers. 
Finally, as referenced above, the use of TDF as a replacement for 
traditional primary fuels eliminates the environmental impacts 
associated with the extraction and processing of the traditional fuels.
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    \30\ United States Environmental Protection Agency (EPA). 1997, 
``Air Emissions from Scrap Tire Combustion''.
    \31\ See also the Nebraska Department of Environmental Quality, 
Applicability Determination for Combusting Tire Derived Fuel in 
Humboldt Wedag Kiln (Kiln 2), indicates that emissions of 
SO2, NOX, and CO decreased while TDF was used. 
(see: http://www.deq.state.ne.us/Press.nsf/pages/AGFactsheet1)
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    Used Oil \32\--Used oil is defined as petroleum-based or synthetic 
oil that has been used and has been contaminated from use (see 40 CFR 
279.1 for the specific definition). To meet EPA's regulatory 
definition, contamination includes residues and contaminants generated 
from the handling, storing, use, and processing of oil.\33\ Physical 
contaminants from use include metal shavings, high water content, or 
dirt, while chemical contaminants from use include solvents, halogens, 
or lead. To meet EPA's regulatory definition, used oil must have been 
refined from crude oil or made from synthetic materials; animal and 
vegetable oils are excluded from EPA's regulatory definition of used 
oil. Generators of used oil include businesses that handle oil through 
commercial or industrial operations or from the maintenance of vehicles 
and equipment. The oil may have been used as a lubricant, hydraulic 
fluid, heat transfer fluid, buoyant, and for other similar purposes.
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    \32\ Source: Materials Characterization Paper in Support of the 
Advanced Notice of Proposed Rulemaking: Identification of Non-
Hazardous Materials That Are Solid Waste--Used Oil.
    \33\ Used oil processing is defined as a chemical or physical 
operation designed to produce from used oil, or to make used oil 
more amenable for production of fuel oils, lubricants, or other used 
oil-derived products. Processing includes, but is not limited to: 
blending used oil with primary petroleum products, blending used 
oils to meet the fuel specification, filtration, simple 
distillation, chemical or physical separation and re-refining.

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[[Page 49]]

    Recent estimates indicate that approximately 1.35 billion gallons 
of used oil are collected each year. Depending upon the year, our 
estimates indicate that as much as 90 percent of all collected used oil 
is burned for energy recovery. Both on-specification and off-
specification \34\ used oil may be used as a source of fuel in 
combustion units. However, off-specification used oil may only be 
burned in the following types of boilers: 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 that 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 or 265. 
National information on the distribution between on-specification and 
off-specification used oil used as a fuel is not readily available. 
However, asphalt plants appear to be the largest users of used oil, 
followed by space heaters, and industrial boilers. We estimate that 
approximately 73 percent of all used oil generated and used each year 
is on-specification.
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    \34\ The Agency makes a distinction between on-specification and 
off-specification used oil. Only certain contaminants in used oil 
pose a significant threat to human health or the environment. As a 
result, EPA has established maximum concentration limits for these 
constituents of concern. These limits are set such that the 
emissions resulting from the burning of used oil containing these 
contaminants, at or below established ``on-spec'' limits, will pose 
no more threat to human health or the environment than the emissions 
resulting from the burning of virgin oil or diesel. See 68 FR 44662 
(July 30, 2003). Also see Section V.A.4. for more discussion of used 
oil.
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    The long-term trend in used oil generation is undetermined. 
However, during the 1997-2005 time period, the recycling rate for used 
oil generated by service stations increased from 66 percent to almost 
100 percent.
    The principal environmental benefits of burning used oil for energy 
recovery are associated with upstream production offsets and include 
substantial reductions of NOX and carbon monoxide (CO) 
emissions. In terms of combustion-specific emissions, use of used oil 
results in notably lower NOX emissions, in particular when 
compared to residual fuel oil. However, PM and lead emissions may be 
higher than for primary fuel oil, depending upon the extent of 
processing.
    Coal Fly Ash \35\--Exhaust gases leaving the combustion chamber of 
a power plant entrain particles during the coal combustion process. Fly 
ash is the finest of coal ash particles. To prevent this fly ash from 
entering the atmosphere, power plants use various collection devices to 
remove it from the gases that are leaving the stack. The coal-fired 
power industry is the largest generator of coal fly ash in the U.S and 
other industries that use coal as a fuel, such as commercial boilers 
and mineral and grain processors, also produce coal fly ash. In 2006, 
the coal-fueled electric power industry generated approximately 72.4 
million tons of fly ash. This figure was estimated at 70.8 million tons 
for 2004 and 71.7 million tons for 2007.\36\ Electricity demand is 
projected to increase in coming years.\37\ Because coal is expected to 
continue to be an important fuel source, it is likely that the quantity 
of coal fly ash generated will also remain significant.
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    \35\ Source (unless otherwise noted): Materials Characterization 
Paper in Support of the Advanced Notice of Proposed Rulemaking: 
Identification of Non-Hazardous Materials That Are Solid Waste--Coal 
Combustion Products--Includes Coal Fly Ash, Bottom Ash, and Boiler 
Slag.
    \36\ ACAA. 2004 and 2007 Coal Combustion Product (CCP) 
Production and Use Survey Results (Revised for 2007).
    \37\ See United States Department of Energy, Energy Information 
Administration (EIA). 2008, ``Annual Energy Outlook 2008 with 
Projections to 2030,'' Publication DOE/EIA-0383 (2008), June 2008.
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    Coal fly ash can be added to the raw material feed in clinker 
manufacturing to contribute specific required elements, such as silica, 
alumina, and calcium, in the final cement composition. Coal fly ash 
with relatively high unburned carbon content can also be re-burned in 
cement kilns for energy recovery at the same time as it provides 
ingredient value. The use of coal fly ash as an ingredient in cement 
kilns does not require processing. However, levels of key metals in 
coal fly ash must be carefully calibrated with other ingredients to 
ensure that the final cement product has the correct mineral and metal 
content. In clinker manufacture, coal fly ash partially offsets the 
need for raw materials, such as silica, iron, and alumina sources. 
Thus, using coal fly ash in the cement kiln can reduce the unit 
consumption of raw feed stock materials, which results in reduced 
emissions of certain pollutants.\38\ Furthermore, when coal fly ash 
with relatively high unburned carbon content is introduced to the 
cement kiln during clinker manufacture, the primary fuel supply may be 
reduced to accommodate the additional energy provided by the carbon in 
the fly ash.
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    \38\ For more detailed information on the benefits of using coal 
fly ash and other recovered mineral components in manufacturing 
processes, please see: ``Study on Increasing the Usage of Recovered 
Mineral Components in Federally Funded Projects Involving 
Procurement of Cement or Concrete to Address the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users.'' 
June 23, 2008. (EPA530-R-08-007)
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    Cement Kiln Dust (CKD) \39\--Generated by the cement manufacturing 
industry, CKD is a fine-grained, solid, highly alkaline low organic 
content material removed from the cement kiln exhaust gas by scrubbers. 
Much of the material comprising CKD is incompletely reacted raw 
material, including a raw mix at various stages of burning, and 
particles of clinker. There is an estimated 13 to 17 million short tons 
of CKD generated per year in the U.S. CKD can be directly reused in a 
closed-loop process back into the cement kiln as an ingredient for 
clinker manufacture. The cement industry is estimated to recycle more 
than 75 percent of its CKD each year. Significant increases in U.S. 
clinker capacity are expected over the 2008 to 2012 period resulting in 
an anticipated increase in CKD production and usage. In clinker 
manufacture, CKD partially offsets the need for raw material feed, such 
as limestone and natural constituents (rock), thus avoiding the energy 
usage and emissions related to their extraction and processing.
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    \39\ Source (unless otherwise noted): Materials Characterization 
Paper in Support of the Advanced Notice of Proposed Rulemaking: 
Identification of Non-Hazardous Materials That Are Solid Waste--
Cement Kiln Dust (CKD).
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    Coal Refuse \40\--Coal refuse refers to any by-product of coal 
mining or coal cleaning operations. Coal refuse is generally defined by 
a minimum ash content combined with a maximum heating value, measured 
on a dry basis. Coal refuse consists primarily of non-combustible rock 
with attached coal that could not be effectively separated in the era 
in which it was mined. Coal refuse includes mining rejects and 
recovered landfill ash. Coal mine rejects are generated by bituminous 
coal and lignite surface mining, bituminous coal underground mining, 
and anthracite mining. Recovered landfill ash is generated by fossil 
fuel electric power generation facilities. Specific data on the 
quantity of mining rejects generated is not available. However, we 
estimate that up to 1,145 million tons of coal refuse may have been 
generated \41\ in 2007. Generation of mining rejects, as well as the 
availability of recoverable

[[Page 50]]

landfill ash, correlates with the production and use of coal. Coal 
production is projected to increase in the coming decades in response 
to increased demand for electricity. Increasing coal use for 
electricity generation at existing plants and projected construction of 
new coal-fired plants is estimated to lead to coal production increases 
that average 1.1 percent per year from 2005 to 2015, with 1.8 percent 
annual growth projected over the 2015 to 2030 period. Based on our 
review of publicly available information, circulating fluidized bed 
(CFB) combustion units and pulverized coal power plants are currently 
the units that use coal refuse.
---------------------------------------------------------------------------

    \40\ Source (unless otherwise noted): Materials Characterization 
Paper in Support of the Advanced Notice of Proposed Rulemaking: 
Identification of Non-Hazardous Materials That Are Solid Waste--Coal 
Refuse.
    \41\ The term ``generated'' in this context refers to the 
quantity of coal mining rejects produced from the total quantity of 
U.S. coal mined in 2007. (Please see the coal refuse Materials 
Characterization Paper for a more detailed discussion.)
---------------------------------------------------------------------------

    CFB is an integrated technology for reducing SO2 and 
NOX emissions during the combustion of coal. In addition to 
reduced SO2 and NOX emissions, use of coal refuse 
as a replacement for traditional primary fuels eliminates the 
environmental impacts associated with the extraction and processing of 
traditional fuels, and reduces the environmental impacts that may be 
associated with the piles of coal refuse (e.g., potential fire hazards 
and sources of surface and groundwater pollution).
    The Agency seeks comment, with supporting data, on the secondary 
materials information provided in this ANPRM and in the Materials 
Characterization Papers. We also request comment, with supporting data, 
on any unidentified non-hazardous secondary fuel and/or ingredient 
materials used in combustion units.

IV. What Is the History of the Definition of Solid Waste Rules?

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.

B. Solid Waste Program, RCRA Subtitle D

    The regulations that pertain to non-hazardous solid waste (RCRA 
Subtitle D) contain five definitions of the term ``solid waste.'' (See 
40 CFR 240.101(y); 40 CFR 243.101(y); 40 CFR 246.101(bb); 40 CFR 257.2; 
and 40 CFR 258.2.) These regulatory definitions largely mirror the 
statutory definition of solid waste with some clarifications applicable 
to the specific regulatory section. The RCRA statutory definition of 
solid waste has also been repeated in the CAA emission guidelines for 
other solid waste incineration units (e.g., see 40 CFR 60.2977 and 
60.3078).
    EPA has not focused on the specific parameters of the definition of 
solid waste as it applies to non-hazardous solid waste programs under 
RCRA Subtitle D primarily because while, under RCRA Subtitle D, EPA 
promulgates criteria for municipal solid waste landfills and approves 
state solid waste landfill permitting programs, it is the states that 
fully implement those programs. EPA does not have the same role in 
these programs as it does in the hazardous waste programs established 
under RCRA Subtitle C. As a result, EPA has not promulgated detailed 
regulations of what is included in the definition of solid waste for 
the Subtitle D (non-hazardous) programs. States have promulgated their 
own laws and regulations regarding what constitutes solid waste and 
have interpreted those laws and regulations to determine what types of 
secondary materials management activities constitute discard (and 
therefore involve the management of a solid waste). However, EPA now 
needs to articulate which non-hazardous secondary materials constitute 
solid wastes under RCRA Subtitle D so that EPA can establish 
appropriate standards under CAA sections 112 and 129 for units that 
combust secondary materials for the purposes of energy recovery or when 
used as an ingredient. We envision that a Subtitle D definition of 
solid waste that could result from this rulemaking effort would not 
impact/affect any other types of management activities for these 
materials, such as landfilling, composting, etc., and as such, would 
have no impact at the Federal level on the Subtitle D program.

C. Hazardous Waste Program, RCRA Subtitle C

    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)).
    EPA emphasizes that it is not requesting comment on any of its 
Subtitle C regulations or on any of the issues involved in its 
hazardous waste regulations regarding whether secondary materials are 
hazardous wastes for purposes of its RCRA Subtitle C regulations. The 
Agency is not reopening its hazardous waste regulations in any way 
whatsoever; EPA does not intend to respond to any comments directed to 
its hazardous waste regulations.
    The following discussion provides the context in which EPA's 
hazardous waste regulations exclude certain materials that would 
otherwise be hazardous waste from the definition of solid waste. In 40 
CFR 261.2, EPA defines solid waste for purpose of the hazardous waste 
regulations as ``any discarded material that is not excluded * * *'' by 
other provisions of Part 261.
    For context, however, the Agency describes its hazardous waste 
regulations and the exclusions, themselves. First, a ``discarded 
material'' is defined in relevant part as a hazardous material which is 
abandoned, recycled, or considered inherently waste-like. A hazardous 
material is considered to be ``abandoned'' if it is disposed of, burned 
or incinerated, or accumulated, stored, or treated before or in lieu of 
being disposed of, burned, or incinerated. A hazardous material is 
considered to be a solid waste when recycled (or when accumulated, 
stored or treated prior to recycling) if it is: (a) Used in a manner 
constituting disposal (i.e., placed on the land or used to produce 
products that are placed on the land); (b) burned for energy recovery 
or used to produce a fuel; \42\ (c) reclaimed; or (d) accumulated 
speculatively.
---------------------------------------------------------------------------

    \42\ Commercial chemical products listed in 40 CFR 261.33 are 
not solid wastes if they themselves are fuels. Also, all commercial 
chemical products that are fuels are not solid waste, regardless of 
whether they are listed as a hazardous waste (see 50 FR 14219, April 
11, 1985).
---------------------------------------------------------------------------

    While 40 CFR 261.2 sets out the basic regulatory definition of 
solid waste as it applies to hazardous waste, the regulations also 
exclude a number of specific hazardous secondary materials from the 40 
CFR 261.2 definition of solid waste, and therefore, from the hazardous 
waste regulations. In general, these exclusions involve hazardous 
secondary materials that are products, co-products, or intermediates or 
other hazardous secondary materials that are reused/recycled/returned 
to the original process or hazardous secondary materials that meet fuel 
specifications. For example, hazardous secondary materials are not 
solid waste when used or reused as ingredients to make a product 
(provided the material is not reclaimed), used or reused as effective 
substitutes for commercial products, or are returned to the original 
process

[[Page 51]]

without first being reclaimed (40 CFR 261.2(e)(1)). In addition, EPA 
has developed many case-specific solid waste exclusions (see 40 CFR 
261.4(a)). For example, hazardous secondary materials that are 
comparable fuels or comparable syngas fuels are excluded even when 
recycled by being burned for energy recovery. (See 40 CFR 
261.4(a)(16).) Also, EPA has recently finalized revisions to the 
definition of solid waste specifying that hazardous secondary materials 
being reclaimed under the control of the generator and hazardous 
secondary materials being transferred for reclamation are not solid 
wastes, provided certain restrictions and conditions are met.\43\
---------------------------------------------------------------------------

    \43\ See ``Revisions to the Definition of Solid Waste,'' Final 
Rule, October 30, 2008, at 73 FR 64667.
---------------------------------------------------------------------------

D. 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. See American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 
1987) (``AMC I''). The ordinary plain-English meaning of the term 
discarded means ``disposed of,'' ``thrown away,'' or ``abandoned.'' The 
court specifically rejected a more expansive meaning for discard that 
would encompass any materials ``no longer useful in their original 
capacity'' even if they were not destined for disposal. 824 F.2d at 
1185-87. The Court further held that the term ``discarded materials'' 
could not include materials ``* * * destined for beneficial reuse or 
recycling in a continuous process by the generating industry itself. 
(824 F.2d at 1190).
    Subsequent to AMC I, the court discussed the meaning of discard in 
particular cases. In American Petroleum Institute v. EPA, 906 F.2d 729 
(D.C. 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 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 (D.C. 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, seem to recognize that products made from 
wastes are, themselves, products and not wastes.
    Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. 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). It explained that the intervening API I and AMC II decisions 
had not narrowed the holding in AMC I (208 F.3d at 1054-1056).
    Notably, the Court did not hold that storage before reclamation 
automatically makes materials ``discarded.'' Rather, it held that ``* * 
* at least some of the secondary material EPA seeks to regulate as 
solid waste (in the mineral processing rule) is destined for reuse as 
part of a continuous industrial process and thus is not abandoned or 
thrown away'' (208 F.3d at 1056). In this regard, the court criticized 
all parties in the case--industry as well as EPA--because they 
``presented this aspect of the case in broad abstraction, providing 
little detail about the many processes throughout the industry that 
generate residual material of the sort EPA is attempting to regulate * 
* *. '' (Ibid).
    American Petroleum Institute v. EPA, 216 F.3d 50, 55 (D.C. 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 is it 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 (D.C. Cir. 2003) (``Safe 
Food''). In that case, among other things, the court rejected the 
argument that, as a matter of plain meaning, recycled material destined 
for immediate reuse within an ongoing industrial process is never 
considered ``discarded,'' whereas material that is transferred to 
another firm or industry for subsequent recycling must always be solid 
wastes. 350 F.3d at 1268. Instead, the court evaluated ``whether the 
agency's interpretation of * * * `discarded' * * * is, reasonable and 
consistent with the statutory purpose. * * *'' Id. Thus, EPA has the 
discretion to determine if material is not a solid waste, even if it is 
transferred between industries.
    We also note that the Ninth Circuit has specifically found that 
non-hazardous secondary materials may, under certain circumstances, be 
burned and not constitute a solid waste under RCRA. See Safe Air For 
Everyone v. Waynemeyer (``Safe Air''), 373 F.3d 1035 (9th Cir., 2004) 
(Kentucky bluegrass stubble may be burned to return nutrients to the 
soil and not be a solid waste).

E. Regulatory Interpretations Regarding the Recycling of Hazardous 
Secondary Materials and the Concept of Legitimacy

    As over twenty-five years of experience in implementing the 
hazardous waste regulations has demonstrated, drawing the line between 
materials that are part of a

[[Page 52]]

manufacturing process or are more commodity-like rather than waste-like 
(and therefore not discarded) from those that are discarded (and 
therefore are being disposed) is a difficult one and depends on a 
number of factors, including how the materials are managed.
    For example, it is clear that the distillation of hazardous waste 
solvents or the neutralization of contaminated acids (while the 
hazardous secondary material itself may be regulated under the RCRA 
hazardous waste regulations) can produce products which are not 
considered wastes. Similarly, under 40 CFR 260.31(c), EPA may grant a 
variance from classifying as a solid waste those hazardous secondary 
materials that have been reclaimed, but must be reclaimed further. In 
order for such a variance to be granted, the resulting material must be 
commodity-like (even though it may not be a commercial product) based 
on a series of specific factors. Under one such variance, World 
Resources Company (WRC) accepts shipments of metal bearing sludges 
(principally sludges from electroplating operations, a listed hazardous 
waste under RCRA), and then dries and blends the sludges with other 
shipments to achieve concentrates that meet the contractual 
specifications of its customers (smelters that recover metals contained 
in the concentrates). Under the variance, the incoming electroplating 
sludges are regulated as hazardous waste until they are processed, but 
the resulting product is no longer a solid waste, and it can be shipped 
to smelters for further reclamation as a product in commerce and not as 
a waste. EPA is aware that several authorized states have made 
comparable determinations, as part of the state authorized RCRA 
hazardous waste program.
    An important element under the RCRA Subtitle C definition of solid 
waste is the concept of legitimate recycling, including the legitimate 
use of hazardous secondary materials. 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 materials being sham recycled to be 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 and ``sham'' 
(i.e., fake) recycling, beginning with the preamble to the 1985 
hazardous waste regulations that first 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). On 
April 26, 1989, the Office of Solid Waste 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 a hazardous secondary materials recycling 
process (OSWER directive 9441.1989(19)). This memorandum (known to many 
as the ``Lowrance Memo'') has been a primary source of information for 
the regulated community and for overseeing agencies in distinguishing 
between legitimate and sham recycling.
    As discussed above, 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. 
As part of that final rule, EPA codified a legitimate recycling 
provision specifically as a condition of these exclusions and the non-
waste determination process.
    As discussed earlier, EPA emphasizes that it is not requesting 
comment on any Subtitle C regulation or any of the issues involved in 
its hazardous waste regulations. EPA does not intend to respond to any 
comments directed to its hazardous waste regulations.
    However, because the concept of legitimacy is a useful one in 
determining when a secondary material is genuinely recycled and not 
discarded under the guise of recycling, 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 latest 
hazardous waste exclusions from the definition of solid waste.
    The legitimacy provision in the October 2008 final rule, which 
applies specifically to the 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 that a legitimate recycling process 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

[[Page 53]]

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 
existing legitimacy policy, as stated in the 1989 Lowrance Memo and in 
various definitions of the solid waste rulemakings.
    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 this notice, 
the Agency is addressing the same basic concept of legitimate recycling 
by discussing when a non-hazardous secondary material that is not 
discarded is legitimately recycled or is a legitimate ingredient in an 
industrial process. Obviously, a secondary material that is not 
discarded and is combusted can only be a fuel or ingredient, and not a 
solid waste, if the material is being legitimately used as a fuel or 
ingredient.
    Consequently, the Agency is seeking comment on the appropriate 
construct for determining when non-hazardous secondary materials are 
legitimately burned as fuel or used as a legitimate ingredient in an 
industrial process. This is explained in detail in the following 
Section V: Preliminary EPA Approach to Determine if Materials Are 
Considered Solid Wastes.

V. Preliminary EPA Approach To Determine if Materials Are Considered 
Solid Wastes

A. Materials That Are Not Solid Wastes

    EPA is providing advanced notice of its intent to develop a 
definition of the term ``solid waste'' under RCRA for non-hazardous 
secondary materials that are used as a fuel or ingredient in a 
manufacturing process. As noted previously, the purpose of this notice 
is to assist EPA in developing emissions standards under sections 112 
and 129 of the CAA, because the CAA states that the term ``solid 
waste'' shall have the meaning ``established by the Administrator 
pursuant to [RCRA].'' 42 U.S.C. 7429(g)(6). The Agency is considering 
various 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 
materials would be subject to regulation under CAA section 129, rather 
than potentially subject to CAA section 112. EPA has identified several 
cases where we believe secondary materials are not solid wastes when 
combusted. These include:
     Traditional fuels;
     Secondary materials used as legitimate ``alternative'' 
fuels that have not been previously discarded;
     Secondary materials used as legitimate ``alternative 
fuels'' resulting from processing of discarded secondary materials;
     Secondary materials used as legitimate ingredients; and
     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.
1. Traditional Fuels
    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 well as cellulosic biomass (e.g., 
wood) are traditional fuels which have been burned historically as 
fuels and have been managed as valuable products. These traditional 
fuels are unused products that have not been discarded and therefore 
are not solid wastes. (However, certain ``alternative'' fuels, such as 
coal refuse, have in some cases been abandoned, and therefore 
discarded--see discussion of coal refuse in section VI.A.) EPA also 
believes that wood collected from forest fire clearance activities and 
trees and uncontaminated wood found in hurricane debris is not 
discarded if managed properly and burned as a legitimate fuel, and 
therefore is not a solid waste. We request comment on whether there are 
other traditional fuels that would fall within this grouping.
    It should be understood that cellulosic biomass, as described 
above, includes unadulterated or clean wood, but that other forms of 
wood, such as reconstituted wood/panel products (e.g., medium density 
fiberboard, particle board, and laminated lumber) or painted and 
chemically treated wood, would need to be evaluated as to whether they 
would qualify as a legitimate alternative fuel pursuant to the criteria 
described in the following section.
2. Guiding Principles Used To Determine if Secondary Materials Used in 
Combustion Units Are Solid Wastes
    For these various secondary materials that are used either as 
ingredients or alternative fuels, EPA is examining the principles 
expressed in the various court decisions on previous rulemakings. In 
addition, we are considering the overall principle in our hazardous 
waste regulations that materials treated as a commodity, rather than as 
a waste, are not discarded and are not solid wastes so long as they are 
legitimately recycled. We are soliciting comments on the 
appropriateness of the principles as applied to non-hazardous secondary 
materials and on how best to structure the criteria for when a non-
hazardous secondary material is or is not a solid waste. To this end, 
the same secondary material could be a solid waste or not depending on 
how it has been handled and managed because handling and management 
factors into whether or not the secondary material has been discarded. 
Key factors in determining if these alternative fuels or ingredients 
are solid wastes under RCRA are: (1) Whether they have been discarded, 
which includes how they are managed and whether they are being used as 
legitimate fuels and ingredients; and (2) 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.
    As noted above in the discussion of AMC I, as well as other 
consistent cases, 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 term 
``discarded materials'' could not include materials ``* * * destined 
for beneficial reuse or recycling in a continuous process by the 
generating industry itself.''
    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., 
bagasse and cement kiln dust that is recycled in cement kilns). In 
looking at the recently promulgated Subtitle C non-waste determination 
petition process under 40 CFR 260.34, to determine whether hazardous 
secondary materials are used in a continuous process, EPA would 
evaluate whether the hazardous secondary material is part of the 
continuous primary production process and is not waste treatment. If 
the hazardous secondary material is handled in a manner identical to 
virgin feedstock, then it would appear to be fully integrated into the 
production process. At the other end of the spectrum, however, 
hazardous secondary materials indisputably discarded prior to being 
reclaimed are not a part of the continuous primary production process. 
See API I, ILCO and

[[Page 54]]

Owen Steel, cited previously. Moreover, hazardous secondary materials 
are likely discarded in the case where industry may reuse materials in 
the future and it is not clear that reuse will occur. See AMC II, cited 
previously. By similar logic, EPA believes that non-hazardous 
alternative fuels or ingredients that are produced and used as a 
legitimate fuel or ingredient in a continuous process would not be 
considered to have been discarded.
    Furthermore, even if the material is not used in a continuous 
process, if it is used as a legitimate fuel or ingredient, these 
secondary materials are likely not solid wastes if they were not 
previously discarded. See API II and Safe Food, previously cited. Many 
materials, such as coal fly ash and biomass are intended for legitimate 
reuse and therefore are not discarded. EPA believes these materials, if 
used as legitimate fuels or ingredients (as discussed in more detail 
below) would likely not be solid wastes if they have not been 
previously discarded (however, as discussed later in this section, 
previously discarded materials that are processed into a legitimate 
fuel product or ingredient would also likely not be solid wastes).
    However, for alternative fuels or ingredients to not be considered 
discarded, and thus not solid wastes, they must be legitimate fuels or 
ingredients. Below we first discuss the legitimacy criteria for 
alternative fuels, followed by a discussion of the legitimacy criteria 
for materials used as ingredients.
    a. Legitimate Alternative Fuels. Specifically, the Agency generally 
considers secondary materials to be a legitimate fuel 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. EPA is interested in receiving comments on these principles. 
Specifically:
     Handled as a Valuable Commodity. For hazardous secondary 
materials, EPA has previously said, with respect to whether something 
is managed as a valuable commodity, that where there is an analogous 
raw material, the hazardous secondary material should be managed, at a 
minimum, in a manner consistent with the management of the analogous 
raw material.\44\ Where there is no analogous raw material, the 
hazardous secondary material should be contained. Hazardous secondary 
materials that are released to the environment and are not recovered 
immediately are considered to be discarded. We request comment on 
whether similar criteria should be used to determine if non-hazardous 
secondary materials used as alternative fuels are being managed as 
valuable commodities and thus are not solid waste, or whether more 
tailored criteria are more appropriate for non-hazardous secondary 
materials. For example, in situations where there is no analogous raw 
material, the Agency is interested in what type of containment would be 
necessary for non-hazardous secondary materials, particularly whether 
materials that are physically solid, such as tires, require 
containment.
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    \44\ See ``Revisions to the Definition of Solid Waste,'' Final 
Rule, October 30, 2008, at 73 FR 64667.
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     Meaningful Heating Value: EPA is seeking comment on how to 
define meaningful heating value for materials that are used as 
alternative fuels. Because of the wide variety of materials in 
question, and because of technology advances and the fact that fuel 
values vary, EPA questions whether it is possible or appropriate to 
establish a specific heating value cutoff for ``legitimate'' fuel. In 
the context of the hazardous waste regulations, EPA addressed the 
concept of whether a hazardous secondary material has an adequate, 
meaningful heating value in the so-called ``comparable fuels'' rule (63 
FR 33781) with a benchmark Btu content of 5,000 Btu/lb (see section 
V.A.6 for more on the comparable fuels rule).\45\ However, given 
improved combustion processes that have been developed that cost-
effectively produce energy from lower rank materials (e.g., circulating 
fluidized bed combustion units), and given the fact that lower Btu 
content non-hazardous materials are frequently combusted for fuel 
value, EPA is requesting comment on whether a Btu content is needed, 
and if so whether a lower Btu content may be appropriate. Alternative 
fuel materials have a wide range of heating values that range from 
2,600 Btu/lb for food; to 3,000 Btu/lb for yard trimmings; to 3,750 
Btu/lb for sludge; to 5,000 Btu/lb for wood; and to 13,450 BTU/lb for 
rubber.\46\ We request comment on whether we should develop a specific 
minimum Btu value on an ``as-fired'' basis that would qualify a 
secondary material as having meaningful heating content, or whether we 
should define meaningful heating value more qualitatively based on 
general principles.
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    \45\ In addition, EPA has previously stated that Subtitle C 
industrial furnaces (i.e., cement kilns and industrial boilers) 
burning wastes with energy value greater than 5,000 Btu may 
generally be said to be burning for energy recovery, however, lower 
energy wastes 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).
    \46\ See background document titled ``Methodology for Allocating 
Municipal Solid Waste to Biogenic and Non-Biogenic Energy, Energy 
Information Administration (U.S.DOE), May, 2007.
---------------------------------------------------------------------------

     Presence of Non-fuel Contaminants: In the hazardous waste 
comparable fuels rule, EPA established numerical specifications for 
toxic organics, toxic metals, sulfur, nitrogen, halogens, and 
polychlorinated biphenyls (PCBs). To address the possible presence of 
waste-like contaminants in non-hazardous secondary materials, EPA 
believes a qualitative approach is more appropriate and can be used to 
identify waste materials containing contaminants that are significantly 
higher in concentration than those contained in traditional fuel 
products to the degree that sham recycling is indicated. The term 
``contaminants'' refers to constituents in secondary materials that may 
be of a concern when burned as a fuel. For example, secondary materials 
that could contain contaminants that are significantly higher in 
concentration than those contained in traditional fuel products include 
chromium-, copper-, and arsenic (CCA)-treated lumber, secondary mill 
residues (i.e., residues such as board, trim and breakage from the 
manufacture of reconstituted wood/panel products), polyvinyl chloride 
(PVC) plastics which can contain 60 percent halogens (chlorine),\47\ 
lead-based painted wood, fluorinated plastics, and non-hazardous 
halogenated solvents. In determining whether the concentration of 
contaminants in secondary materials is ``significantly higher,'' the 
Agency could include 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. We request comment on whether 
a qualitative approach to defining fuels as solid waste because they 
are too contaminated (indicating sham recycling) is an appropriate 
option. In any case, given the multiplicity of fuel materials, we 
believe that numerical specifications are likely to be

[[Page 55]]

impractical. We also request comment on whether the contaminants 
evaluated for the comparable fuels rule,\48\ which mostly includes 
Appendix VIII constituents, should also be used for non-hazardous 
secondary materials used as fuels, or whether a different of list 
contaminants is appropriate.
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    \47\ Constituents, such as chlorine in PVC are relevant because 
of the potential for chlorinated combustion by-products to be 
emitted (e.g., dioxins, hydrogen chloride).
    \48\ See RCRA Comparable Fuel Exclusion Final Rule, June 19, 
1998 at 40 CFR 261.38.
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    b. Legitimate Alternative Ingredients. For non-hazardous secondary 
materials to be used as legitimate ingredients, the Agency would use a 
similar legitimacy analysis as was developed in the hazardous waste 
program. Specifically, the Agency would generally consider secondary 
materials to be a legitimate ingredient 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. If these criteria are not 
met, sham recycling may be indicated and the secondary material may be 
a solid waste. For use as an ingredient, EPA would not be looking at 
fuel value since the secondary materials are being used as an 
ingredient and not a fuel. Instead, the Agency would look at useful 
contribution and valuable product, as described below. The Agency is 
interested in receiving comments on these principles, including whether 
the following principles are reasonable for non-hazardous secondary 
materials used as ingredients:
     Handled as a Valuable Commodity. For hazardous secondary 
materials, EPA has previously said, with respect to whether a secondary 
material is managed as a valuable commodity, that where there is an 
analogous raw material, the hazardous secondary material should be 
managed, at a minimum, in a manner consistent with the management of 
the analogous raw material. Where there is no analogous raw material, 
the hazardous secondary material should be contained. Hazardous 
secondary materials that are released to the environment and are not 
recovered immediately are discarded, and thus would be regarded as a 
waste and not a commodity. We request comment on whether similar 
criteria should be used to determine if non-hazardous secondary 
materials used as ingredients are being managed as valuable commodities 
and thus are not solid waste, or whether more tailored criteria are 
more appropriate for non-hazardous secondary materials.
     Useful Contribution: For hazardous secondary materials, 
EPA has previously stated that a secondary material must provide a 
useful contribution to the recycling process or to the product of the 
recycling process.\49\ The ways in which a secondary material can add 
value and usefully contribute to a recycling process are: (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. We request comment on whether this description is 
applicable for non-hazardous secondary materials used as ingredients in 
a combustion process.
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    \49\ See ``Revisions to the Definition of Solid Waste,'' Final 
Rule, October 30, 2008, at 73 FR 64667.
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     Valuable Product or Intermediate: Similarly, for hazardous 
secondary materials, EPA has stated that the recycling process must 
produce a valuable product or intermediate.\50\ The Agency believes 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. The Agency believes this description is broad 
enough to incorporate both products that are valuable from a monetary 
standpoint and products or intermediates that have intrinsic value to 
the generator or the recycler. We are seeking 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.
---------------------------------------------------------------------------

    \50\ See ``Revisions to the Definition of Solid Waste,'' Final 
Rule, October 30, 2008, at 73 FR 64667.
---------------------------------------------------------------------------

     Presence of Contaminants: As mentioned above under 
legitimate fuel criteria, EPA is suggesting a qualitative approach may 
be more appropriate to use in identifying waste materials containing 
contaminants that are significantly higher in concentration than those 
contained in traditional products to the degree that sham recycling is 
indicated. In the context of hazardous secondary materials, EPA expects 
those making a legitimate recycling determination to look at the 
concentrations of hazardous constituents found in the product made from 
hazardous secondary materials and compare them to the concentrations of 
hazardous constituents in analogous products to determine if the 
concentrations are significantly higher.\51\ In determining whether the 
concentration of contaminants in secondary materials is ``significantly 
higher,'' the Agency could include 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 ingredient. 
EPA concluded in the most recent hazardous secondary material 
rulemaking that the complexities of defining ``significant'' via a 
bright-line quantitative test that would also still be appropriate for 
all industries, all recycling processes, and all recycled hazardous 
secondary materials were too great for the Agency to be able to design 
as a simple and straightforward system of tests to be used in making 
such determinations.\52\ We request comment on whether a similar 
qualitative approach to defining ingredients used in a manufacturing 
process involving combustion as solid waste because they are too 
contaminated (indicating sham recycling) is the preferred option or 
whether numerical specifications is a better approach. In addition, the 
Agency is requesting 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 is more 
appropriate for non-hazardous secondary materials used as ingredients.
---------------------------------------------------------------------------

    \51\ See ``Revisions to the Definition of Solid Waste,'' Final 
Rule, October 30, 2008, at 73 FR 64667.
    \52\ See ``Revisions to the Definition of Solid Waste,'' Final 
Rule, October 30, 2008, 73 FR at 64745.
---------------------------------------------------------------------------

    c. Discarded Secondary Materials That Have Been Processed. In many 
cases, the secondary material may have been discarded, but later 
processed to produce a legitimate fuel product or ingredient, ready for 
direct use in an industrial process. In such cases, the processed 
material that is extracted or reclaimed as a legitimate fuel or 
ingredient would not be a waste, but rather a product of the processing 
activity. In general, the products from the recycling of solid wastes 
are not themselves wastes--for example, paper that is made from 
recycling used paper and then sold in stores is a product, not a waste. 
EPA believes that if a secondary material is processed into a 
legitimate fuel or ingredient material, the processed material would 
not be a discarded material. Of course, these

[[Page 56]]

products still must qualify as legitimate fuels or ingredients, as 
previously discussed. Otherwise, sham recycling may be indicated and 
the materials may be a solid waste. For example, used oil that is 
processed to produce ``on-spec fuel'' and that meets the standards of 
40 CFR 279.11 would be considered a product, not a waste. See section 
V.A.4 for more discussion of used oil.
    In the following sections, we discuss three groupings (previously 
listed) where we believe secondary materials are not solid wastes, but 
rather are non-discarded products that are legitimate fuels or 
ingredients when used in combustion units. We are soliciting comment on 
our interpretation of these materials as not being solid wastes under 
RCRA.
3. Secondary Materials Used as Legitimate ``Alternative'' Fuels That 
Have Not Been Previously Discarded
    As we discussed previously, EPA believes 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 Agency also believes 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 would not consider them to be solid wastes.
    Alternative fuels consisting of biomass represent a large 
percentage of the alternative fuels in use today. We generally believe 
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 (i.e., they have been managed as 
valuable commodities, have meaningful heating value and do not contain 
contaminants that are significantly higher in concentration than those 
in traditional fuel products). Thus, when burned, it would not be 
considered ``sham'' combustion. See previous discussion in section 
V.A.2. 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 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), food scraps, and pulp and paper mill residuals 
(e.g., spent pulping liquors; 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 includes manures and gaseous fuels 
(e.g., from landfills and manures).
    EPA generally considers biomass as described above, especially 
cellulosic biomass, to have comparable composition when compared 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, then we do not believe that they 
should be considered solid wastes. We request comment on whether 
biomass as described above contains contaminants that are significantly 
higher in concentration when compared to traditional fuel products. In 
determining whether the concentration of contaminants in biomass is 
``significantly higher,'' the Agency could include 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. We also request comment on the impact of a solid waste 
determination, one way or the other, on the inclusion of biomass 
materials in the many state-initiated renewable fuels specifications 
whereby such materials (e.g., manures, forest thinnings) are required 
to be used in the electric generation portfolio within the state.
    EPA also believes that tires used as TDF, which include whole or 
shredded tires, that have not been previously discarded, are legitimate 
fuels that meet our previous described 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). EPA's 1997 study on ``Air 
Emissions from Scrap Tire Combustion'' \53\ concluded that potential 
emissions from TDF are often less than and generally within the same 
range as, emissions from conventional fossil fuels. Thus, if the tires 
have not been abandoned and thrown away, we would not consider them to 
be solid wastes. For example, approximately 130 million tires per year 
are obtained from tire dealerships and used directly as a fuel. In many 
cases, these tires are collected pursuant to state tire programs and 
handled as valuable products, and, therefore, they have not been 
abandoned, disposed of, or thrown away.\54\ In other cases, they are 
transferred to brokers or directly to industrial operations through 
standard commercial transactions. In contrast, tires that have 
accumulated in tire piles over the years (i.e., those tires in tire 
piles that have been abandoned) have been discarded, and thus 
considered to be solid waste (although they may later be processed into 
a legitimate fuel product).\55\
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    \53\ This study was published by EPA's Office of Research and 
Development and produced as part of EPA's National Risk Management 
Research Laboratory strategic long-term research plan for the 
prevention and control of pollution to air, land, water, and 
subsurface resources; protection of water quality in public water 
systems; remediation of contaminated sites and groundwater; and 
prevention and control of indoor air pollution.
    \54\ States typically regulate these programs under their state 
solid waste authorities. It is not the Agency's intent to undercut 
state authorities in this area. We request comment on whether tires 
collected pursuant to state tire programs have been discarded. We 
also request 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 states 
ability to manage such programs. This similarly would apply to used 
oil as well.
    \55\ For example, as noted below, whole tires can be processed 
(shredded) into fuel products after they have been discarded.
---------------------------------------------------------------------------

    Other non-traditional alternative fuels in use today that we are 
evaluating to determine whether they have not been discarded, and are 
legitimate alternative fuels include construction and demolition 
materials, scrap plastics, non-hazardous non-halogenated solvents and 
lubricants, and wastewater treatment sludge. We request comment on 
whether these secondary materials are legitimate alternative fuels and 
thus would not be solid wastes if they have not been previously 
discarded. Commenters should provide data and/or information supporting 
whether these secondary materials are legitimate and whether they are 
or are not considered to have been discarded.
    Some secondary materials are questionable as to whether they are 
legitimate fuels because they lack adequate heating value, which could 
be the case for wet biomass that has insufficient as-fired heating 
content due to its moisture content. Another secondary material that 
may not be a legitimate fuel is biomass that has, for example, 
undergone chemical treatment, such that the material may contain 
contaminants that are significantly higher in concentration than those 
in traditional fuel products to

[[Page 57]]

the degree that sham recycling is indicated. Secondary materials that 
we think may contain contaminants that are significantly higher in 
concentration than those of traditional fuel products include PVC 
(which can contain 60 percent chlorine),\56\ halogenated plastics, 
chromated copper arsenate (CCA) lumber, creosote lumber, copper-based 
treated lumber, lead-based treated lumber, secondary mill residues 
(i.e., residues such as board, trim and breakage from the manufacture 
of reconstituted wood/panel products), and non-hazardous halogenated 
solvents. In determining whether the concentration of contaminants in 
secondary materials is ``significantly higher,'' the Agency could 
include 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. We request comment on whether 
these secondary materials contain contaminants that are significantly 
higher in concentration compared to traditional fuel products, and 
whether there are other secondary materials not listed that should be 
considered to have contaminant concentrations that would result in them 
being disqualified as a legitimate fuel (i.e., a solid waste when 
burned).
---------------------------------------------------------------------------

    \56\ As previously discussed, the term ``contaminants'' refers 
to constituents in secondary materials that may be of a concern when 
burned as a fuel. Constituents, such as chlorine in PVC are relevant 
because of the potential for chlorinated combustion by-products to 
be emitted (e.g., dioxins, hydrogen chloride).
---------------------------------------------------------------------------

    We also request comment on whether there are other types of 
secondary materials that should be considered alternative fuels, 
assuming they have not been discarded and are legitimate (i.e., they 
meet the criteria discussed in section V.A.2). For example, as we 
discuss in more detail in section VI, biofuel production has increased 
dramatically in the past few years and is expected to continue 
increasing over the coming years. We later take specific comment on the 
extent to which biofuels are currently used in stationary combustion 
units, and the extent to which byproducts from the production of 
biofuels, as well as ingredients used to produce biofuels, such as 
fats, oils, and greases, are used directly in stationary combustion 
units as alternative fuel sources. Commenters should explain the 
circumstances under which these secondary materials would not be 
considered to have been discarded, and how these materials meet the 
criteria as legitimate fuels. See the Materials Characterization Papers 
in the docket established for this ANPRM for a complete description of 
the secondary materials EPA is assessing as part of this effort.
4. Secondary Materials Used as Legitimate ``Alternative Fuels'' 
Resulting From the Processing of Discarded Secondary Materials
    EPA also believes 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 fuel product, such a product would not be discarded and 
therefore would not be a solid waste, provided it met the general 
principles previously discussed for being a legitimate fuel. (Note: 
Until a legitimate product has been extracted, processed or reclaimed, 
the secondary material that has been discarded is a solid waste.) The 
principle behind this idea of processing a waste to produce a product 
is common to industrial processes.
    Due to the nature of some materials (e.g., low Btu value, the 
presence of contaminants, or the need for certain physical 
characteristics to address handling issues associated with the 
combustion device), processing will be necessary for the secondary 
material to be used as a fuel. Such discarded materials generally would 
be solid wastes until the point that a fuel product is produced; 
however, the fuel itself would not be a solid waste as long as it met 
the legitimacy factors. Secondary materials that can be processed into 
fuel include discarded biomass, coal fines, used oil, tires, and 
landfill ash. 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). Below are some examples 
of secondary materials that we believe may be processed to produce a 
legitimate non-waste fuel.
     For biomass that has been previously discarded and has 
high moisture content, dewatering/drying techniques can be used to 
effectively increase the Btu/lb and produce a legitimate non-waste 
fuel, provided the biomass does not contain contaminants at 
significantly higher concentrations and is handled as a valuable 
commodity.
     Wood with lead-based paint can be processed to remove the 
lead-based paint, leaving the underlying wood for use as a non-waste, 
traditional fuel, and the lead-based paint can then be safely disposed 
of or sent for lead recovery.
     Tires that cannot be handled whole by some combustion 
devices (whether discarded or not) can be processed by shredding and 
removing dirt or other contaminants to produce TDF. Turning scrap tires 
into TDF can involve two physical processing steps: chipping/shredding 
and in some cases metal removal. TDF consists of chipped tires ranging 
in size from 1 to 4 inches; the amount of metal in TDF varies depending 
on how much of the tires have been processed. Some units, such as 
cement kilns use the metal in the wire as a valuable ingredient in the 
manufacturing process, and therefore do not require its removal. 
However, most other units benefit from TDF that has been processed to 
minimize the amount of metal and improve heating efficiency. At this 
point, EPA considers tire shredding/chipping alone (without metal 
recovery), as well as in combination with metal recovery, as legitimate 
processing activities sufficient to convert a discarded material into a 
fuel product.
     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 (e.g., K-Fuel, N-Viro).
    In all of the examples above, we, at this point, view the secondary 
material to have been sufficiently processed to produce a fuel that 
would not be a solid waste if it met the general principles described 
earlier--that is, the fuel product is a legitimate fuel and ``sham'' 
combustion (i.e., discard rather than use) has not occurred. Of course, 
any waste generated in the ``processing'' of these materials would need 
to be managed properly. We seek comment on whether the processing 
described above is sufficient to convert discarded material into a fuel 
product.
    In addition to the examples above, we request comment on some 
additional operations that involve processing. Specifically, logging 
and primary milling residues may be chipped or sorted before 
combustion. Although we generally believe that this material would not 
be considered to have been discarded, we request comment on whether any 
forest-derived biomass that was determined to have been discarded and 
was subsequently processed by chipping or sorting prior to combustion

[[Page 58]]

would be considered to have undergone adequate processing to convert 
the discarded material into a fuel product. Mined landfill power plant 
ash can also be processed (e.g., crushed, screened, and/or separated 
into its fundamental components through density separation techniques) 
into a fuel. We also request comment on whether mined landfill ash is 
adequately processed to convert it into a fuel product or ingredient 
(under the assumption that it meets our previously described legitimacy 
criteria).
    Used oil is a special case since it is specifically addressed in 
the RCRA statute (RCRA section 3014). It is worth noting that the 
statute does not define used oil as a solid waste. Section 3014 
provides that EPA is to make a determination whether used oil is a 
hazardous waste, but is silent on whether used oil per se is a solid 
waste. Thus, we must apply the previously described criteria to 
determine if used oil is in fact discarded. Pursuant to RCRA section 
3014, the Agency has promulgated standards for used oil management. The 
Standards for the Management of Used Oil in 40 CFR part 279 set forth 
management requirements for used oil that include contaminant limits to 
identify when used oil is considered to be ``on-specification'' used 
oil as opposed to ``off-specification,'' and when it must be managed as 
a hazardous waste.
    Table 1 in section 279.11 provides contaminant limits for ``on-
specification'' used oil. On-specification used oil can only be burned 
for energy recovery, and once used oil is shown to meet the 
specification limits, the only requirement is maintenance of records of 
shipment to on-specification burners. No requirements or limitations 
are imposed on the management or burning of the on-specification used 
oil. Other uses of on-specification used oil would continue to cause 
that use to be subject to the used oil regulations. Management of used 
oil that does not meet the specification limits (referred to as off-
spec used oil) is subject to the management controls, including 
recordkeeping, storage standards, and burning requirements. With one 
exception, off-spec used oil may only be burned in Subtitle C hazardous 
waste incinerators, or in boilers and industrial furnaces specified by 
the regulations (see 40 CFR 279.61). The exception is generators may 
burn off-spec used oil in used oil-fired space heaters provided that 
the heater burns only used oil that the owner or operator generates or 
used oil received from household do-it-yourself used oil generators, 
the heater is designed to have a maximum capacity of not more than 0.5 
million Btu per hour, and the combustion gases from the heater are 
vented to the ambient air.
    There also is an upper total halogen limit for used oil (known as 
the rebuttal presumption). If the used oil has halogens in excess of 
1,000 ppm, the used oil is considered to have been mixed with 
halogenated hazardous wastes, and must be managed as a hazardous waste 
unless a demonstration can be made that the used oil does not in fact 
contain hazardous waste.
    We generally consider off-specification used oil that is collected 
from repair shops to have been originally discarded since this used oil 
contains both fossil fuel and contaminants picked up during use as a 
lubricant, and likely contains contaminants that are significantly 
higher in concentration than traditional fuels, and thus would not be 
considered a legitimate fuel per the criteria discussed in section 
V.A.2. However, if the fossil fuel component is extracted from the non-
fuel contaminants through processing to meet the on-specification 
levels in 279.11, the resultant fossil fuel is not significantly 
different from traditional fossil fuels in every way and thus should be 
considered a product fuel, not a waste. We also consider used oil that 
is collected from repair shops that already meet the ``on-spec'' limits 
to be legitimate fuel products, not wastes.
    We request comment on whether off-specification used oil managed 
pursuant to the 40 CFR 279 used oil management standards which are 
burned for energy recovery is considered to be discarded, and thus 
solid waste. 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, we also must determine 
whether the alternative ingredients have been discarded, which includes 
assessing how they are managed, and whether they are being used as 
legitimate ingredients pursuant to the criteria described in section 
V.A.2. Secondary materials that the Agency is assessing as alternative 
ingredients include CKD, bottom ash, boiler slag, blast furnace slag, 
foundry sand, and secondary glass material. We request comment on 
whether these secondary materials are legitimate ingredients as 
previously described in section V.A.2 and thus would not be solid 
wastes if not previously discarded. Commenters should provide data and/
or information supporting whether these secondary materials are 
legitimate ingredients and thus, whether they are or are not considered 
to have been discarded. For example, we believe that CKD is not a solid 
waste if it is recycled within the continuous clinker production 
process. We also believe that coal fly ash is handled as a commodity 
within continuous commerce when it is marketed to cement kilns as an 
alternative ingredient. As a result, if it is determined to be a 
legitimate ingredient pursuant to the criteria outlined in section 
V.A.2, we would not consider it to be a solid waste.
    If the alternative ingredient was previously discarded, however, 
the Agency believes that such secondary materials are solid wastes, 
unless they were processed into a legitimate ingredient product. The 
Agency solicits comment on this situation (that is, the situation where 
a discarded material is recovered from the environment, and directly 
used as an ingredient) and, if comments are submitted that argue that 
such secondary materials (once recovered from the environment) should 
not be considered solid waste, the commenters should provide the basis 
or rationale for such a position (including a demonstration of how the 
secondary materials meet the legitimacy criteria outlined in section 
V.A.2) in order for the Agency to evaluate the arguments that are 
presented by the commenters. The Agency specifically requests comments 
on the extent to which secondary materials that have already been 
discarded (e.g., coal ash that has been landfilled) are later processed 
and used as ingredients in combustion units. Commenters should provide 
a description of the types of processing that the secondary material 
undergoes. EPA is also soliciting comment on the level of processing 
that would be considered sufficient to transform a discarded material 
into an ingredient product.
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
    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 characteristics, 
were not ``solid wastes''

[[Page 59]]

for purposes of the Subtitle C hazardous waste regulations. 
Specifically, the following materials may be burned under certain 
conditions and are not solid wastes, but only for purposes of the 
hazardous waste regulations--black liquor, spent sulfuric acid, and 
comparable fuels. EPA is interested in extending this determination so 
that these materials are not considered solid wastes under RCRA 
Subtitle D.
    The Agency believes that it has sufficient information in the 
rulemaking records that covered the determinations for black liquor, 
spent sulfuric acid,\57\ and comparable fuels \58\ to conclude that the 
exclusions are broadly applicable to the definition of solid waste; 
however, it solicits comment on whether it needs to develop additional 
information and provide new arguments. EPA emphasizes that it is not 
requesting comment on the solid waste definition for purposes of its 
hazardous waste regulation, but only on whether the exclusion 
conceptually applies to the definition of solid waste that is 
applicable to non-hazardous Subtitle D wastes, when these secondary 
materials are used as a fuel or ingredients.
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    \57\ See Definition of Solid Waste Final Rule, January 4, 1985 
at 50 FR 641-642, covering both black liquor and spent sulfuric 
acid.
    \58\ See ``Expansion of the RCRA Comparable Fuels Exclusion 
(CFE)'', Final Rule, December 19, 2008, 73 FR 77953.
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    EPA provides the following summaries of its regulations and 
solicits any views from the public on these materials. Specifically, a 
determination was made that black liquor reclaimed in a pulping liquor 
recovery furnace and then reused in the pulping process and spent 
sulfuric acid used to produce virgin sulfuric acid were not solid 
wastes under the hazardous waste regulations. The reason that these 
hazardous secondary materials were determined not to be solid wastes 
was because these hazardous secondary materials were determined to be 
an integral part of the manufacturing process. With respect to 
comparable fuels, EPA determined that certain hazardous secondary 
materials that meet specific requirements to ensure the material's 
toxic constituents and physical properties are similar to commercial 
(benchmark) fuels, are products, not solid wastes. See 63 FR 33781. The 
Agency has also recently finalized a rule that expands the Comparable 
Fuels Exclusion to encompass a new category of liquid hazardous 
secondary materials known as emission-comparable fuel (ECF).\59\ By 
expanding the Comparable Fuels Exclusion, ECF will be handled as a 
valuable commodity. ECF is subject to the same regulations that 
currently apply to the Comparable Fuels Exclusion, with the exception 
of certain oxygenates and hydrocarbons (constituents which contribute 
energy value to the fuel). The rule specifies conditions on burning ECF 
which assure that emissions from industrial boilers burning ECF are 
comparable to emissions from industrial boilers burning fuel oil.
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    \59\ See ``Expansion of the RCRA Comparable Fuels Exclusion 
(CFE)'', Final Rule, December 19, 2008, 73 FR 77953.
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    The Agency specifically states in the hazardous waste rules that 
such ``solid waste'' determinations are only with respect to the 
Subtitle C hazardous waste regulations (see 40 CFR 261.1(b)(1)). EPA, 
however, wishes to obtain comment on whether to extend these exclusions 
beyond the hazardous waste regulations and apply them to these 
materials when they are used as a fuel or ingredient, and they meet the 
general principles discussed in today's notice.

 VI. Additional Areas for Comment

    The Agency is also interested in receiving comments on the 
following four issues.

A. Fuels or Materials That Have Been Discarded That Are Generally 
Considered To Be Solid Wastes

    The Agency considers materials that have been previously discarded 
and not subsequently processed into a legitimate fuel or ingredient 
products as solid wastes under RCRA. However, the question has been 
raised by certain industry groups and states \60\ as to whether these 
discarded materials--once recovered from the environment--may no longer 
be considered solid waste (assuming they are in fact valuable fuels or 
ingredients and otherwise meet the legitimacy criteria once recovered). 
Therefore, the Agency solicits comment on whether there are any 
circumstances under which these secondary materials should not be 
considered solid wastes under RCRA.
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    \60\ For example, see the Hybrid Regulatory Approach paper 
presented by the multi-industry coalition of stakeholders (PCA/CIBO/
AF&PA/USWAG/RMA) in the docket established for this action entitled: 
``Outline of Regulatory Approach to Determine Materials Considered 
Fuels--not Solid Wastes--under RCRA,'' June 12, 2008. We have had 
verbal discussions with the states on this issue as well.
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    EPA recognizes that waste can be burned for energy or material 
recovery, and 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 ingredient or fuel. However, 
as discussed in section III of this preamble, 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 Agency is therefore interested in taking comment on the 
situation where discarded materials can be directly used as a 
legitimate fuel or ingredient (as defined in section V.A.2) without 
processing because they are indistinguishable in all relevant aspects 
from a fuel or ingredient product. (Note that the Agency is only 
requesting comment on these secondary materials at the point they have 
been removed from their ``discard'' environment and are being managed 
as a valuable commodity. Materials that have been disposed of in 
abandoned piles or landfills are clearly discarded while they remain in 
those environments and are subject to the appropriate federal, state 
and local regulations.) As an example, based on the results of EPA's 
1997 study on ``Air Emissions from Scrap Tire Combustion,'' it was 
concluded that potential emissions from TDF are often less than, but at 
least generally within the same range as, emissions from conventional 
fossil fuels, as long as combustion occurs in a well-designed, 
operated, and well-maintained combustion device. Other data supports 
this conclusion. See background document titled ``Materials 
Characterization Paper; Scrap Tires,'' for a more detailed discussion 
on comparing TDF emissions to traditional fossil fuel emissions.
    Coal refuse (i.e., mining rejects) is another secondary material 
that we believe falls within this category. Some of these materials 
were discarded by coal mining companies from the time mining first 
began in the Appalachians through the late 1970s. The materials had 
historically been piled through the Pennsylvania and West Virginia coal 
regions until laws were enacted in the late 1970s that required site 
reclamation. The advent of CFB combustion boilers, capable of 
efficiently burning fuels of lower calorific value, has resulted in the 
ability to use this material as a fuel (millions of tons of coal refuse 
have been burned as a fuel since the advent of CFBs). See background 
document titled ``Materials Characterization Paper; Coal Refuse,'' for 
more details.

[[Page 60]]

    The Agency specifically solicits comment on whether there are 
circumstances under which materials that have been discarded and which 
are legitimate fuels or ingredients should or should not be considered 
a solid waste once they are removed or recovered from the ``discard'' 
environment and managed as a legitimate fuel or ingredient.

B. Other Approaches for Determining Whether Secondary Materials Are 
Fuels and Not Solid Wastes

    The Agency is also interested in receiving comments on an approach, 
as presented to the Agency by industry representatives, for determining 
when secondary materials are fuels and thus, not solid waste, and how 
the process may be implemented.\61\ Many aspects of the approach 
presented have been discussed throughout this ANPRM, with the common 
principle that certain secondary materials are not solid waste when 
burned for energy if they meet established criteria or are specifically 
identified not to be solid waste. For example, industry representatives 
suggest that material 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 may 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. Industry stakeholders also recommend that EPA should list by 
regulation specific materials as fuels, rather than solid wastes. Thus, 
under the industry recommended approach, it would not be necessary to 
evaluate whether the criteria have been satisfied in every instance. 
Specifically, listed materials that were recommended include: 
Traditional/historical fuels (e.g., coal, fuel oil, pet coke, coal 
refuse, used oil regulated under 40 CFR Part 279, synfuel, TDF, biomass 
fuel, biofuel, and gas pipeline condensate), materials specifically 
excluded from RCRA Subtitle C that have beneficial fuel value, 
materials combusted for chemical recovery, materials that are modified 
or processed to produce a product of significant fuel or feedstock 
value, biomass materials from agricultural and forest resources, tires 
reclaimed via state programs, materials that had been discarded, but 
can be processed for use as a fuel or feedstock, and materials that a 
state approves as a fuel or determines can be beneficially reused.
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    \61\ See the Hybrid Regulatory Approach paper presented by the 
multi-industry coalition of stakeholders (PCA/CIBO/AF&PA/USWAG/RMA) 
in the docket established for this action entitled: ``Outline of 
Regulatory Approach to Determine Materials Considered Fuels--not 
Solid Wastes--under RCRA,'' June 12, 2008.
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    To implement the aforementioned concepts for determining when or 
which secondary materials are fuels, industry presented two methods, 
which were not meant to be mutually exclusive. One method implements 
the criteria concept, by which an owner or operator of a combustion 
device must determine that the material meets the criteria set forth 
and maintain records to demonstrate that these criteria are met. 
(Presumably, the owner or operator would be subject to potential 
enforcement action if EPA determined that the criteria were 
misapplied.) The other method implements an extension of the listed 
materials concept by allowing an owner or operator to petition EPA or 
the state to specifically list a material (in addition to a pre-
established list of materials). In a petition, the owner or operator 
would use the criteria as the basis for proposing that EPA or the state 
list the material (although industry notes that not all criteria need 
to be satisfied to qualify as a fuel), or the owner or operator could 
submit additional information to demonstrate the environmental 
equivalence of the material to other listed fuels.
    The Agency solicits comments on whether the rules should include a 
petition process that would allow a person to submit a rulemaking 
petition and argue, on a case-by-case basis, that a secondary material 
is not a solid waste. This petition process would address situations 
where a material would otherwise be considered a solid waste under 
current regulations. As discussed in section V.A.6, the Agency has 
excluded certain materials from being a solid waste under the Subtitle 
C hazardous waste regulations. Should the Agency allow persons to 
petition the Agency to have a secondary material excluded from the 
definition of solid waste based on the legitimacy criteria discussed in 
section V.A.2? The Agency is interested in receiving comments on the 
validity and potential specific procedures of a case-by-case petition 
process by the owner or operator of a combustion device, including what 
criteria should be considered in evaluating such petitions. In 
addition, we also request comment on the concept of establishing a list 
of materials that are fuels.
    For more information, see the multi-industry coalition's paper in 
the docket established for this action entitled: ``Outline of 
Regulatory Approach to Determine Materials Considered Fuels--not Solid 
Wastes--under RCRA,'' June 12, 2008. The Agency also has received 
several papers from industry groups which we have reviewed and 
considered in drafting this ANPRM that are also available for viewing 
and comment in the docket.

C. Materials for Which State Beneficial Use Determinations Have Been 
Made \62\
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    \62\ This applies to state beneficial use determinations for 
secondary materials used as fuels or ingredients in combustion units 
that are not determined to be ``non-wastes'' pursuant to this 
rulemaking effort.
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    States regulate the management of non-hazardous solid waste, 
typically including secondary industrial materials, but many 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. The Agency is also soliciting comments on 
state beneficial use determinations and how those determinations deal 
with solid wastes, and how those decisions should be considered by EPA 
in determining what is or is not a solid waste under RCRA, which in 
turn determines how it is regulated under the CAA standards. Many state 
determinations addressing a material's beneficial use and solid waste 
status are consistent with the principles explained in this ANPRM, but 
some state determinations (as previously discussed, both wastes and 
non-wastes may be used beneficially) may be inconsistent. In order for 
state programs to qualify materials as not solid waste under federal 
law, under the terms suggested in this notice, secondary materials 
would need to be legitimate fuels or ingredients and otherwise meet the 
conditions of the federal regulations.
    As we have noted previously, states are the lead Agencies for 
implementing the non-hazardous waste programs and, as such, we want to 
make sure that state programs are not adversely affected by any 
decisions that are made by EPA. We see a benefit to deferring to state 
decisions, which are able to consider site specific information. The 
Association of State and Territorial Solid Waste Management Officials 
(ASTSWMO) reports that they receive requests from the regulated 
community to consider non-hazardous, industrial secondary materials as 
not being solid wastes when they are beneficially used. Most states (30 
of 34 reporting) indicated they had either formal or

[[Page 61]]

informal decision-making processes or beneficial use programs relating 
to the use of solid wastes. Materials are no longer subject to the 
state's solid waste regulations under the state rules when a state 
determines that the secondary materials are no longer solid wastes when 
beneficially used.
    The Agency acknowledges state beneficial use determinations and 
seeks comment 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, should also not be considered a solid 
waste under federal law. Commenters who support such a position should 
provide the basis or rationale for this position. For example, would a 
determination be needed that shows the beneficial use determination was 
in-line with EPA's principles as outlined in section V.A.2. (i.e., 
whether they were legitimate fuels or ingredients)?

D. Biofuels

    Biofuels and byproducts from the production of biofuels are non-
traditional alternative fuels being offered for stakeholder 
consideration. Biofuels can be generally described as a gas or liquid 
fuel made from biological materials, including plants, animal manure, 
and other organic sources. Thus, biofuels produced from these 
materials, such as ethanol and biodiesel are not considered to be solid 
wastes themselves, but rather are viewed as legitimate fuel products. 
Biofuels production has increased dramatically in the past few years 
and is expected to continue increasing over the coming years. The 
Energy Policy Act of 2005 amended the CAA to establish a Renewable Fuel 
Standard (RFS) program which established a major new federal renewable 
fuel volume mandate. While market forces initially caused renewable 
fuel use to far exceed these mandates, this program provided certainty 
that at least a minimum amount of renewable fuel would be used in the 
U.S. transportation market, which in turn provided assurance for 
investment in production capacity. The Energy Independence and Security 
Act of 2007 (EISA) updated the RFS program to include a new definition 
of renewable fuels that accounted for the fuel life-cycle emissions of 
greenhouse gases (GHG) \63\ and also increased the total renewable fuel 
volume mandate to 36 billion gallons per year by 2022; the statute also 
established four specific categories of renewable fuels, each with a 
separate volume mandate. These categories are renewable fuel, advanced 
biofuel, biomass-based diesel, and cellulosic biofuel.
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    \63\ A ``renewable fuel'' is defined in EISA as a fuel that is 
produced from renewable biomass and that is used to replace or 
reduce the quantity of fossil fuel present in transportation fuel. 
``Renewable biomass'' is defined as (1) Planted crops and crop 
residue, (2) planted trees and tree residue, (3) animal waste 
material and animal byproducts, (4) slash and commercial thinnings, 
(5) biomass from the immediate vicinity of buildings, (6) algae, and 
(7) separated yard waste or food waste, including recycled cooking 
and trap grease.
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    Biofuels production can be viewed as including both the feedstock 
materials that are used to produce biofuels, as well as the byproducts 
generated from the production of biofuels. EPA considers these 
materials to be 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. For example, a project completed by the University 
of Georgia (UGA) Engineering Outreach Service (EOS) demonstrated that 
biofuels processed from fats and grease (chicken fat, yellow grease, 
choice white grease, and beef tallow), either singly or blended with 
No. 2 fuel oil, are technically and economically viable alternatives to 
No. 2 fuel oil in industrial boilers.\64\ We request additional data 
and comment on the extent to which fats, oils, and greases (FOGs) and 
related biomass materials that can be used as feedstocks to produce 
biofuels and that are not previously addressed in this ANPRM, are also 
used directly as fuels in stationary combustion sources. Further, the 
Agency requests comment on the extent to which FOGs and biomass 
materials are processed into biofuels for use in stationary combustion 
sources, such that their assessment as part of this rulemaking effort 
is warranted. For example, the U.S. Energy Information Administration 
estimated used cooking oil is produced at a rate of some 100 million 
gallons per day in the USA.\65\ Literature suggests that biodiesel can 
be prepared from waste cooking oil. Although there are instances where 
such oil is used as a fuel for engines with only minimal processing 
(such as filtering), more intensive processing (such as the addition of 
ethyl alcohol with sodium hydroxide as a catalyst for the 
transesterification of vegetable oils and animal fats) is necessary to 
produce true biodiesel fuel.\66\ Finally, we request comment on whether 
non-hazardous byproducts generated from the production of biofuels, 
such as dry distiller's grain from corn ethanol and lignin from 
cellulosic ethanol, are being used as alternative fuels, which 
therefore should be assessed as part of this rulemaking effort.
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    \64\ FY 2005 FoodPAC Final Report; ``Combustion of Poultry Fat 
for Plant Heat and Steam,'' University of Georgia.
    \65\ Radich, A. Biodiesel performance, costs, and use. U.S. 
Energy Information Administration, 2006. http://www.eia.doe.gov/
oiaf/analysispaper/biodiesel/index.html.
    \66\ Energies 2008, 1, 3-18; DOI: 10.3390/en1010003, ``Waste 
Cooking Oil as an Alternate Feedstock for Biodiesel,'' http://
www.mdpi.com/1996-1073/1/1/3/pdf.
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VII. Statutory and Executive Order Reviews

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action.
    Generally, because this action is ``advanced'' in nature and does 
not, therefore, propose any requirements on any entities, the various 
administrative requirements EPA must address in the rulemaking process 
are not applicable. When EPA issues a notice of proposed rulemaking, 
EPA will address those requirements. EPA expects to prepare an Economic 
Assessment (EA) in support of the proposed action. We will submit this 
EA, along with the proposed rulemaking to OMB for review.

List of Subjects in 40 CFR Part 257

    Environmental protection, Waste treatment and disposal.

    Dated: December 22, 2008.
Stephen L. Johnson,
Administrator.
[FR Doc. E8-30987 Filed 12-31-08; 8:45 am]

BILLING CODE 6560-50-P
