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Statement of Need: EPA is preparing to establish new emission standards under CAA sections 112 and 129. In order to establish these new emission standards, EPA must determine at the federal level which non-hazardous secondary materials are considered "solid waste." The meaning of solid waste for purposes of these CAA standards is of particular importance since CAA section 129 states that the term "solid waste" shall have the meaning "established by the Administrator."

Summary of the Legal Basis: EPA is promulgating this regulation under the authority of sections 2002(a)(1) and 1004(27) of RCRA, as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1(D) of the CAA directs EPA to establish standards for Commercial and Industrial Solid Waste Incinerators (CISWI), which burn solid waste (CAA sec. 129(g)(6), 42 U.S.C. 7429). Section 129(g)(6) provides that the term, solid waste, is to be established by EPA under RCRA. Section 2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as are necessary to carry out the functions under the Act. The statutory definition of "solid waste" is provided in RCRA section 1004(27).

Alternatives: The Notice of Proposed Rulemaking (NPRM) proposes an "Alternative Approach" that is broader than the proposed solid waste definition. This alternative may be adopted in the final rule, if warranted by information presented during the public comment period or otherwise available in the rulemaking record. Under this alternative, most non-hazardous secondary materials that are burned in a combustion unit would be considered solid wastes. Only fuels or ingredients that are combusted and remain within the control of the generator and met the legitimacy criteria would not be solid wastes under this alternative. This approach would not allow discarded materials processed into new product fuels to be considered as non-wastes, or allow for a petition process. This approach would expand the universe of non-hazardous secondary materials that would be considered to be solid wastes, and thus subject to CAA section 129. The proposed rule also takes comment on an approach that would classify all non-hazardous secondary materials that are burned in combustion units as solid wastes.

Anticipated Costs and Benefits: The proposed rule specifies criteria under which non-hazardous secondary materials are considered solid wastes. Although the final rule will determine which section of the CAA under which a given combustion unit is regulated, this rule itself will not include any emission standards and will not require changes in the management or use of secondary materials. Only with the promulgation of the respective rules developed within EPA's Office of Air and Radiation (OAR) would society realize the costs, benefits, and other impacts. These impacts, therefore, are attributed entirely to the rules being developed by OAR.

Risks: Air emission risks will be reduced as a result of the current promulgation of three-related rules developed by OAR and this rule. However, material diversion risks may increase under certain limited scenarios.