(a) The following non-hazardous secondary materials are not solid wastes when used as a fuel in a combustion unit:
(1) Scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires.
(2) Resinated wood.
(3) Coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse.
(4) Dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials.
(b) Any person may submit a rulemaking petition to the Administrator to identify additional non-hazardous secondary materials to be listed in paragraph (a) of this section. Contents and procedures for the submittal of the petitions include the following:
(1) Each petition must be submitted to the Administrator by certified mail and must include:
(i) The petitioner's name and address;
(ii) A statement of the petitioner's interest in the proposed action;
(iii) A description of the proposed action, including (where appropriate) suggested regulatory language; and
(iv) A statement of the need and justification for the proposed action, including any supporting tests, studies, or other information. Where the non-hazardous secondary material does not meet the legitimacy criteria, the applicant must explain why such non-hazardous secondary material should be considered a non-waste fuel, balancing the legitimacy criteria with other relevant factors.
(2) The Administrator will make a tentative decision to grant or deny a petition and will publish notice of such tentative decision, either in the form of an advanced notice of proposed rulemaking, a proposed rule, or a tentative determination to deny the petition, in the Federal Register for written public comment.
(3) Upon the written request of any interested person, the Administrator may, at its discretion, hold an informal public hearing to consider oral comments on the tentative decision. A person requesting a hearing must state the issues to be raised and explain why written comments would not suffice to communicate the person's views. The Administrator may in any case decide on its own motion to hold an informal public hearing.
(4) After evaluating all public comments the Administrator will make a final decision by publishing in the Federal Register a regulatory amendment or a denial of the petition.
(5) The Administrator will grant or deny a petition based on the weight of evidence showing the following:
(i) The non-hazardous secondary material has not been discarded in the first instance and is legitimately used as a fuel in a combustion unit, or if discarded, has been sufficiently processed into a material that is legitimately used as a fuel.
(ii) Where any one of the legitimacy criteria in Sec. 241.3(d)(1) is not met, that the use of the non-hazardous secondary material is integrally tied to the industrial production process, that the non-hazardous secondary material is functionally the same as the comparable traditional fuel, or other relevant factors as appropriate. [78 FR 9213, Feb. 7, 2013]