Vol. 79 Monday, 

No. 71 April 14, 2014 

Part III 

Environmental Protection Agency 

40 CFR Part 241 

Additions to List of Section 241.4 Categorical Non-Waste Fuels; Proposed 

Rule 


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21006 Federal Register / Vol. 79, No. 71 / Monday, April 14, 2014 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 241 

[EPA–HQ–RCRA–2013–0110; FRL–9900–55– 

OSWER] 

RIN–2050–AG74 

Additions to List of Section 241.4 

Categorical Non-Waste Fuels 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 

proposing amendments to the NonHazardous Secondary Materials (NHSM) 

regulation under the Resource 

Conservation and Recovery Act (RCRA). 

The NHSM rule generally established 

standards and procedures for 

identifying whether non-hazardous 

secondary materials are solid wastes 

when used as fuels or ingredients in 

combustion units. In a February 7, 2013 

rule, EPA listed particular nonhazardous secondary materials as 

‘‘categorical non-waste fuels’’ provided 

certain conditions are met. EPA also 

indicated that it would consider adding 

additional non-hazardous secondary 

materials to the categorical listings. 

Today’s action proposes to add three 

materials to the list of categorical nonwaste fuels: Construction and 

demolition (C&D) wood processed from 

C&D debris according to best 

management practices; Paper recycling 

residuals, including old corrugated 

cardboard (OCC) rejects, generated from 

the recycling of recovered paper and 

paperboard products and burned on-site 

by paper recycling mills whose boilers 

are designed to burn solid fuel; and 

Creosote treated railroad ties that are 

processed and combusted in units 

designed to burn both biomass and fuel 

oil. 

DATES: Comments must be received on 

or before June 13, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

RCRA–2013–0110 by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• Email: Comments may be sent by 

electronic mail (email) to rcra-docket@

epa.gov, Attention Docket ID No. EPA– 

HQ–RCRA–2013–0110. 

• Mail: Send comments to: RCRA 

Docket, EPA Docket Center, Mail Code 

28221T, Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW., Washington DC 20460, Attention 

Docket ID No. EPA–HQ–RCRA–2013– 

0110. Please include two copies of your 

comments. In addition, please mail a 

copy of your comments on the 

information collection provisions to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget (OMB), Attn: Desk Officer for 

EPA, 725 17th St. NW., Washington DC 

20503. 

• Hand delivery: Deliver two copies 

of your comments to: Environmental 

Protection Agency, EPA Docket Center, 

Room 3334, 1301 Constitution Avenue 

NW., Washington DC, Attention Docket 

ID No. EPA–HQ–RCRA–2013–0110. 

Such deliveries are only accepted 

during the docket’s normal hours of 

operation and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–RCRA–2013– 

0110. 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 email. 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 email comment directly 

to EPA without going through http://

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http://

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to the 

SUPPLEMENTARY INFORMATION section of 

this document. 

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, such as 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 at http://

www.regulations.gov or in hard copy at 

the RCRA Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave. 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m. Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the RCRA Docket is (202) 

566–0270. 

FOR FURTHER INFORMATION CONTACT: For 

more detailed information on specific 

aspects of this rulemaking, contact 

George Faison, Office of Resource 

Conservation and Recovery, Materials 

Recovery and Waste Management 

Division, MC 5304P, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460; 

telephone number: (703) 305–7652; fax 

number: 703–308–0509; email: 

faison.george@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Does this action apply to me? 

Categories and entities potentially 

affected by this action, either directly or 

indirectly, include, but may not be 

limited to the following: 

GENERATORS AND POTENTIAL USERS a

OF THE NEW MATERIALS PROPOSED

TO BE ADDED TO THE LIST OF CATEGORICAL NON-WASTE FUELS

Primary Industry Category or 

Sub Category NAICSb

Utilities ...................................... 221 

Construction of Buildings .......... 236 

Site Preparation Contractors .... 238910 

Manufacturing ........................... 31, 32, 33 

Wood Product Manufacturing ... 321 

Sawmills .................................... 321113 

Wood Preservation (includes 

crosstie creosote treating) .... 321114 

Pulp, Paper, and Paper Products ........................................ 322 

Cement manufacturing ............. 32731 

Railroads (includes line haul 

and short line) ....................... 482 

Scenic and Sightseeing Transportation, Land (Includes: 

railroad, scenic and sightseeing) .................................. 487110 

Port and Harbor Operations 

(Used railroad ties) ............... 488310 


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GENERATORS AND POTENTIAL USERS a

OF THE NEW MATERIALS PROPOSED

TO BE ADDED TO THE LIST OF CATEGORICAL NON-WASTE FUELS— 

Continued 

Primary Industry Category or 

Sub Category NAICSb

Landscaping Services .............. 561730 

Solid Waste Collection ............. 562111 

Solid Waste Landfill .................. 562212 

Solid Waste Combustors and 

Incinerators ........................... 562213 

Marinas ..................................... 713930 

a Includes: Major Source Boilers, Area 

Source Boilers, and Solid Waste Incinerators. b NAICS—North American Industrial Classification System. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities potentially 

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 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 email. Clearly 

mark all information that you claim to 

be CBI. For CBI information in a disk or 

CD–ROM that you mail to EPA, mark 

the outside of the disk or CD–ROM as 

CBI and then identify electronically 

within the disk or CD–ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed, except in accordance with the 

procedures set forth in 40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions. The Agency may 

ask commenters to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If estimating burden or costs, 

explain methods used to arrive at the 

estimate in sufficient detail to allow for 

it to be reproduced. 

• Provide specific examples to 

illustrate any concerns and suggest 

alternatives. Make sure to submit 

comments by the comment period 

deadline identified above. 

C. How do I obtain a copy of this 

document and other related 

information? 

The docket number for this proposed 

action is Docket ID No. EPA–HQ– 

RCRA–2013–0110. In addition to being 

available in the docket, an electronic 

copy of the proposed action is available 

on EPA’s Web site at http://

www.epa.gov/epawaste/nonhaz/define/. 

EPA posted a copy of the proposed 

action on this Web site, as well as other 

information related to this proposed 

action. 

Organization of this Document. The 

following outline is provided to aid in 

locating information in this preamble. 

Preamble Outline 

I. Statutory Authority 

II. List of Abbreviations and Acronyms 

III. Introduction 

IV. Background 

A. History of the NHSM Rulemakings 

B. Background to Today’s Proposed Rule 

C. How will EPA make a categorical nonwaste determination? 

V. Proposed Categorical Non-Waste Listing 

Determinations 

A. Construction and Demolition (C&D) 

Debris Processed According to Best 

Management Practices 

1. Detailed Description of C&D Wood 

2. C&D Wood Under Current NHSM Final 

Rules 

3. Comments Submitted on C&D Wood in 

the December 2011 Proposed Rule 

4. Scope of Proposed Categorical NonWaste Listing for C&D Wood 

5. Rationale for Proposed Listing 

6. Summary and Request for Comment 

B. Paper Recycling Residuals (PRRs) 

1. Detailed Description of PRRs 

2. OCC Rejects Under Current NHSM Rules 

3. Scope of Proposed Categorical NonWaste Listing for PRRs 

4. Rationale for Proposed Listing 

5. Summary and Request for Comment 

C. Creosote-Treated Railroad Ties (CTRTs) 

1. Detailed Description of CTRTs 

2. CTRTs Under Current NHSM Rules 

3. Scope of Proposed Categorical Listing for 

CTRTs 

4. Rationale for Proposed Listing 

5. Summary and Request for Comment 

VI. Technical Corrections 

A. Change to 40 CFR 241.3(b)(2) 

B. Change to 40 CFR 241.3(c)(1) 

C. Change to 40 CFR 241.3(d)(1)(iii) 

VII. Effect of Today’s Proposal on Other 

Programs 

VIII. State Authority 

A. Relationship to State Programs 

B. State Adoption of the Rulemaking 

IX. Cost and Benefits 

X. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. Statutory Authority 

The EPA is proposing that additional 

non-hazardous secondary materials 

(NHSMs) be categorically listed as nonwaste fuels in 40 CFR part 241.4(a) 

under the authority of sections 

2002(a)(1) and 1004(27) of the Resource 

Conservation and Recovery Act (RCRA), 

as amended, 42 U.S.C. 6912(a)(1) and 

6903(27). Section 129(a)(1)(D) of the 

Clean Air Act (CAA) directs the EPA to 

establish standards for Commercial and 

Industrial Solid Waste Incinerators 

(CISWI), which burn solid waste. 

Section 129(g)(6) of the CAA provides 

that the term ‘‘solid waste’’ is to be 

established by the EPA under RCRA (42 

U.S.C. 7429). Section 2002(a)(1) of 

RCRA authorizes the Agency to 

promulgate regulations as are necessary 

to carry out its functions under the Act. 

The statutory definition of ‘‘solid waste’’ 

is stated in RCRA section 1004(27). 

II. List of Abbreviations and Acronyms 

ATCM Airborne Toxic Control Measure 

BMP Best Management Practice 

Btu British thermal unit 

C&D Construction and Demolition 

CAA Clean Air Act 

CARB California Air Resources Board 

CBI Confidential Business Information 

CCA Chromated Copper Arsenate 

CFR Code of Federal Regulations 


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21008 Federal Register / Vol. 79, No. 71 / Monday, April 14, 2014 / Proposed Rules 

1See 40 CFR 241.2 for the definition of nonhazardous secondary material. 

2See October 14, 2011, Letter from Administrator 

Lisa P. Jackson to Senator Olympia Snowe. See 

docket (EPA–HQ–RCRA–2008–0329–1873). 

3See 78 FR 9112 (February 7, 2013) for a 

discussion of the rule and the Agency’s basis for its 

decisions. 

4Under 40 CFR 241.3(d)(1), the legitimacy criteria 

for fuels include: (1) management of the material as 

a valuable commodity based on the following 

factors—storage prior to use must not exceed 

reasonable time frames, and management of the 

material must be in a manner consistent with an 

CISWI Commercial and Industrial Solid 

Waste Incinerator 

CTRT Creosote-Treated Railroad Tie 

EPA U.S. Environmental Protection Agency 

FR Federal Register 

HAP Hazardous Air Pollutant 

ICR Information Collection Request 

MACT Maximum Achievable Control 

Technology 

NAICS North American Industrial 

Classification System 

ND Non-detect 

NESHAP National Emission Standards for 

Hazardous Air Pollutants 

NHSM Non-Hazardous Secondary Material 

OCC Old Corrugated Cardboard 

OMB Office of Management and Budget 

PAH Polycyclic Aromatic Hydrocarbons 

ppm Parts Per Million 

PRR Paper Recycling Residual 

PVC Polyvinyl Chloride 

RCRA Resource Conservation and Recovery 

Act 

RIN Regulatory Information Number 

SBA Small Business Administration 

SO2 Sulfur Dioxide 

SVOC Semi-volatile organic compound 

TCLP Toxicity Characteristic Leaching 

Procedure 

UMRA Unfunded Mandates Reform Act 

UPL Upper Prediction Limit 

U.S.C. United States Code 

VOC Volatile organic compound 

WWW Worldwide Web 

XRF X-Ray Fluorescence 

III. Introduction 

The Resource Conservation and 

Recovery Act (RCRA) defines ‘‘solid 

waste’’ as ‘‘. . . any garbage, refuse, 

sludge from a waste treatment plant, 

water supply treatment plant, or air 

pollution control facility and other 

discarded material . . . resulting from 

industrial, commercial, mining, and 

agricultural operations, and from 

community activities . . .’’ (RCRA 

section 1004 (27) (emphasis added)). 

The key concept is that of ‘‘discard’’ 

and, in fact, this definition turns on the 

meaning of the phrase, ‘‘other discarded 

material,’’ since this term encompasses 

all other examples provided in the 

definition. 

The meaning of ‘‘solid waste,’’ as 

defined under RCRA, is of particular 

importance as it relates to section 129 of 

the Clean Air Act (CAA). If material is 

a solid waste under RCRA, a 

combustion unit burning it is required 

to meet the CAA section 129 emission 

standards for solid waste incineration 

units. If the material is not a solid waste, 

combustion units are required to meet 

the CAA section 112 emission standards 

for commercial, industrial, and 

institutional boilers. Under CAA section 

129, the term ‘‘solid waste incineration 

unit’’ is defined, in pertinent part, to 

mean ‘‘a distinct operating unit of any 

facility which combusts any solid waste 

material from commercial or industrial 

establishments . . .’’ 42 U.S.C. 

7429(g)(1). CAA section 129 further 

states that the term ‘‘solid waste’’ shall 

have the meaning ‘‘established by the 

Administrator pursuant to the Solid 

Waste Disposal Act.’’ Id at 7429(g)(6). 

The Solid Waste Disposal Act, as 

amended, is commonly referred to as 

the Resource Conservation and 

Recovery Act or RCRA. 

Regulations concerning nonhazardous secondary materials (NHSM) 

used as fuels or ingredients in 

combustion units are codified in 40 CFR 

part 241.1 Today’s action proposes to 

amend the part 241 regulations by 

adding three NHSMs to the list of 

categorical non-waste fuels codified in 

241.4(a). These new proposed 

categorical listings are for: 

• Construction and demolition (C&D) 

wood processed from C&D debris 

according to best management practices 

(refer to Section V of the preamble or 

the proposed regulatory text for a full 

description of the categorical listing). 

• Paper recycling residuals, including 

old corrugated cardboard (OCC) rejects, 

generated from the recycling of 

recovered paper and paperboard 

products and burned on-site by paper 

recycling mills whose boilers are 

designed to burn solid fuel. 

• Creosote-treated railroad ties that 

are processed and combusted in units 

designed to burn both biomass and fuel 

oil. 

IV. Background 

A. History of the NHSM Rulemakings 

The Agency first solicited comments 

on how the RCRA definition of solid 

waste should apply to NHSMs when 

used as fuels or ingredients in 

combustion units in an advanced notice 

of proposed rulemaking (ANPRM), 

which was published in the Federal 

Register on January 2, 2009 (74 FR 41). 

We then published an NHSM proposed 

rule on June 4, 2010 (75 FR 31844), 

which EPA made final on March 21, 

2011 (76 FR 15456). 

The March 2011, NHSM final rule 

codified the standards and procedures 

to be used for identifying which NHSMs 

are ‘‘solid waste’’ when used as fuels or 

ingredients in combustion units. Under 

that rule, traditional fuels, including 

historically managed traditional fuels 

(e.g. coal, oil, natural gas) and 

‘‘alternative’’ traditional fuels (e.g. clean 

cellulosic biomass) are not secondary 

materials and thus, are not solid wastes. 

In addition, the Agency identified the 

following NHSMs as not being solid 

wastes: 

• The NHSM is used as a fuel and 

remains under the control of the 

generator (whether at the site of 

generation or another site the generator 

has control over) that meets the 

legitimacy criteria (40 CFR 241.3(b)(1)); 

• The NHSM is used as an ingredient 

in a manufacturing process (whether by 

the generator or outside the control of 

the generator) that meets the legitimacy 

criteria (40 CFR 241.3(b)(3)); 

• The NHSM has been sufficiently 

processed to produce a fuel or 

ingredient that meets the legitimacy 

criteria (40 CFR 241.3(b)(4)); or 

• Through a case-by-case petition 

process, it has been determined that the 

NHSM handled outside the control of 

the generator has not been discarded, is 

indistinguishable in all relevant aspects 

from a fuel product, and meets the 

legitimacy criteria (40 CFR 241.3(c)). 

In October 2011, the Agency 

announced that it would be initiating a 

new rulemaking proceeding to revise 

certain aspects of the NHSM rule.2 On 

December 23, 2011, EPA published a 

proposed rule, which addressed specific 

targeted amendments and clarifications 

to the 40 CFR part 241 regulations (76 

FR 80452). These proposed revisions 

and clarifications were limited to 

certain issues on which the Agency had 

received new information, as well as 

targeted revisions that the Agency 

believed were appropriate in order to 

allow implementation of the rule as EPA 

originally intended. The amendments to 

the part 241 regulations were made final 

on February 7, 2013 with modifications 

to § 241.2, § 241.3 and the addition of 

§ 241.4, and include the following: 3

• Revised Definitions: EPA revised 

three definitions discussed in the 

proposed rule: (1) ‘‘clean cellulosic 

biomass,’’ (2) ‘‘contaminants,’’ and (3) 

‘‘established tire collection programs.’’ 

In addition, based on comments 

received on the proposed rule, the 

Agency revised the definition of 

‘‘resinated wood.’’ 

• Contaminant Legitimacy Criterion 

for NHSMs Used as Fuels: EPA issued 

revised contaminant legitimacy criterion 

for NHSMs used as fuels to provide 

additional details on how contaminantspecific comparisons between NHSMs 

and traditional fuels may be made. 4


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analogous fuel, or where there is no analogous fuel, 

adequately contained to prevent releases to the 

environment; (2) the material must have a 

meaningful heating value and be used as a fuel in 

a combustion unit that recovers energy; and (3) the 

material must contain contaminants at levels 

comparable to or less than those in traditional fuels 

which the combustion unit is designed to burn. 

5 In the March 2011 NHSM rule, EPA identified 

two NHSMs as not being solid wastes, although 

persons would still need to make individual 

determinations that these NHSMs meet the 

legitimacy criteria: (1) Scrap tires used in a 

combustion unit that are removed from vehicles 

and managed under the oversight of established tire 

collection programs and (2) resinated wood used in 

a combustion unit. However, in the February 2013 

NHSM rule, the Agency amended the regulations 

and categorically listed these NHSMs as not being 

solid wastes. 

6 78 FR 9111, February 7, 2013 (page 9172 in a 

section called ‘‘Other Materials for Which 

Additional Information Was Not Requested’’). 

7Comments on December 23, 2011 proposed rule 

supporting a categorical non-waste determination 

for paper recycling residuals: American Forest & 

Paper Association, et al. EPA–HQ–RCRA–2008– 

0329–1946–A1; Georgia-Pacific LLC (GP) EPA–HQ– 

RCRA–2008–0329–1902–A1; National Alliance of 

Forest Owners (NAFO) EPA–HQ–RCRA–2008– 

0329–1950–A2; Packaging Corporation of America 

(PCA) EPA–HQ–RCRA–2008–0329–1966–A1; and 

United Steelworkers (USW) EPA–HQ–RCRA–2008– 

0329–1910–A1. Comments supporting a categorical 

non-waste determination for paper recycling 

residuals and C&D wood: American Forest & Paper 

Association, et al. EPA–HQ–RCRA–2008–0329– 

1946–A1; Construction Materials Recycling 

Association (CMRA) EPA–HQ–RCRA–2008–0329– 

1928–A1; Covanta Energy Corporation (Covanta) 

EPA–HQ–RCRA–2008–0329–1893–A; Energy 

Recovery Council (ERC) EPA–HQ–RCRA–2008– 

0329–1927–A1; Georgia-Pacific LLC (GP) EPA–HQ– 

RCRA–2008–0329–1902–A1; Michigan Biomass 

EPA–HQ–RCRA–2008–0329–1905–A1; National 

Alliance of Forest Owners (NAFO) EPA–HQ– 

RCRA–2008–0329–1950–A2; United Steelworkers 

(USW) EPA–HQ–RCRA–2008–0329–1910–A1; 

Waste Management (WM) EPA–HQ–RCRA–2008– 

0329–1957–A2; and Weyerhaeuser EPA–HQ– 

RCRA–2008–0329–1930–A1. 

The revisions include: (1) the ability to 

compare groups of contaminants where 

technically reasonable; (2) clarification 

that ‘‘designed to burn’’ means can burn 

or does burn, and not necessarily 

permitted to burn; (3) the ability to use 

traditional fuel data from national 

surveys and other sources beyond a 

facility’s current fuel supplier; and (4) 

the ability to use ranges of traditional 

fuel contaminant levels when making 

contaminant comparisons, provided the 

variability of the NHSM contaminant 

levels is also considered. 

• Categorical Non-Waste 

Determinations for Specific NHSMs 

Used as Fuels: EPA codified 

determinations that certain NHSMs are 

non-wastes when used as fuels. If a 

material is categorically listed as a nonwaste fuel, persons that generate or burn 

these NHSMs will not need to make 

individual determinations, as required 

under the existing rules, that these 

NHSMs meet the legitimacy criteria. 

Except where otherwise noted, 

combustors of these materials will not 

be required to provide further 

information demonstrating their nonwaste status. Based on all available 

information, the EPA determined that 

the following NHSMs are not solid 

wastes when burned as a fuel in 

combustion units and has categorically 

listed them in 241.4(a).5 (1) Scrap tires 

that are not discarded and are managed 

under the oversight of established tire 

collection programs, including tires 

removed from vehicles and offspecification 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. 

• Rulemaking Petition Process for 

Other Categorical Non-Waste 

Determinations: EPA made final a 

rulemaking process in § 241.4(b) that 

provides persons an opportunity to 

submit a rulemaking petition to the 

Administrator, seeking a determination 

for additional NHSMs to be 

categorically listed in § 241.4(a) as nonwaste fuels, if they can demonstrate that 

the NHSM meets the legitimacy criteria, 

or after balancing the legitimacy criteria 

with other relevant factors, EPA 

determines that the NHSM is not a solid 

waste when used as a fuel. 

The February 2013 amendments 

under § 241.4, entitled ‘‘Non-Waste 

Determinations for Specific NonHazardous Secondary Materials When 

Used as a Fuel’’ were in response to 

issues raised after promulgation of the 

March 2011, NHSM final rule 

concerning application of the legitimacy 

criteria, and the extent of information 

required to make a demonstration that 

an NHSM is not a solid waste. To 

provide additional clarity and assist in 

implementation of the rule, the Agency 

also codified in § 241.4(b) a process for 

determining that certain NHSMs are not 

solid wastes when used as a fuel for the 

purpose of energy recovery, where the 

Agency has sufficient information and 

knowledge that these NHSMs are not 

wastes. 

Based on these non-waste categorical 

determinations, as discussed above, 

facilities burning NHSMs that meet the 

categorical listing description will not 

need to make individual determinations 

that the NHSM meets the legitimacy 

criteria or provide further information 

demonstrating their non-waste status on 

a site-by-site basis, provided they meet 

the conditions of the categorical listing. 

Please refer to Section IV.C (How Will 

EPA Make a Categorical Non-Waste 

Determination?) below for details on the 

process. 

B. Background to Today’s Proposed 

Rule 

As discussed in the February 2013 

final rule,6 the Agency received 

comments on the December 23, 2011, 

proposed rule that additional NHSMs 

should be categorically listed as nonwaste fuels for which the Agency had 

not requested information as a part of 

that proposal. We did not respond to 

such comments and issues since they 

were beyond the scope of that 

rulemaking and indicated that, because 

the Agency did not specifically solicit 

comments or propose that those NHSMs 

be categorically listed in 40 CFR 

241.4(a), the Agency must go through 

notice and comment rulemaking before 

making a final decision. The February 

2013 final rule noted, however, that two 

NHSMs—paper recycling residuals 

(including OCC rejects) and 

construction and demolition debris 

processed pursuant to best practices— 

would be good candidates for a future 

proposal based on information provided 

to the Agency 7 and expected to propose 

those listings in a subsequent 

rulemaking. 

In addition to the comments 

identified in the February 2013 rule, the 

Agency received supplementary 

information on these two NHSMs from 

stakeholders (see Section V). As 

discussed in the following sections, EPA 

believes that the information received to 

date, when taken together, supports a 

categorical determination of these 

materials as non-waste fuels and is 

today proposing to list them as 

categorical non-waste fuels in section 

241.4(a). 

Furthermore, the Agency identified 

creosote-treated railroad ties in the 

February 2013 final rule as a potential 

candidate for a categorical non-waste 

listing. However, the Agency also 

indicated that additional information 

would need to be submitted before this 

NHSM could be addressed. If such 

information supported the 

representations made by the industry— 

that is, the American Forest & Paper 

Association (AF&PA) and the American 

Wood Council—EPA stated that it 

expected to propose a categorical listing 


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8The additional information EPA cited in the 

preamble to the final rule for which it solicited 

comment included: (1) a list of industry sectors, in 

addition to forest product mills, that burn creosotetreated railroad ties for energy recovery, (2) the 

types of boilers (e.g., kilns, stoker boilers, 

circulating fluidized bed, etc.) that burn creosotetreated railroad ties for energy recovery, (3) the 

traditional fuels and relative amounts (e.g., startup, 

30%, 100%) of these traditional fuels that could 

otherwise generally be burned in these types of 

boilers, (4) the extent to which non-industrial 

boilers (e.g., commercial or residential boilers) burn 

creosote-treated railroad ties for energy recovery, 

and (5) laboratory analyses for contaminants known 

to be present in creosote-treated railroad ties or 

known to be significant components of creosote, 

specifically, polycyclic aromatic hydrocarbons (i.e., 

PAH–16), dioxins, dibenzofurans, 

hexachlorobenzene, biphenyl, quinoline, cresols, 

and 2,4-dinitrotoluene. 

9 78 FR 9111, February 7, 2013 (page 9172) 

10For a full discussion regarding the petition 

process for receiving a categorical non-waste 

determination, see 78 FR 9111, February 7, 2013 

(page 9158). 

11Supplementary information received from by 

M.A. Energy Resources (February 2013) in support 

of the crosstie derived fuel was submitted as a 

categorical petition in accordance 40 CFR 241.4(b). 

12Materials Characterization Paper: Construction 

and Demolition Materials. February 3, 2011. EPA– 

HQ–RCRA–2008–0329–1811. 

for this material as well.8 9 Finally, we 

noted in the February 2013 final rule 

that the Agency received a letter from 

the Treated Wood Council asking that 

non-hazardous treated wood be 

categorically listed—a broad category 

that would include creosote-treated 

railroad ties. The Agency noted that it 

was in the process of reviewing the 

information in the letter and would 

consider whether to propose a 

categorical listing for this broader set of 

treated wood material. 

The Agency has reviewed the 

information submitted from 

stakeholders regarding creosote-treated 

railroad ties. As discussed in the 

following sections, EPA believes that 

the information received to date, when 

taken together, supports a categorical 

determination of the processed creosotetreated railroad ties as non-waste fuels 

when combusted in units designed to 

burn both biomass and fuel oil and is 

today proposing to list them as 

categorical non-waste fuels in section 

241.4(a). 

C. How will EPA make a categorical 

non-waste determination? 

The February 7, 2013, revisions to the 

NHSM rule discuss the process and 

decision criteria whereby the Agency 

would make additional categorical nonwaste determinations. The proposed 

determinations regarding processed 

C&D wood, paper recycling residuals, 

and creosote-treated railroad ties 

described in the following sections are 

based on information submitted during 

the February 7, 2013, rulemaking effort, 

as well as supplementary information 

received since issuance of the rule. 

While the proposed categorical nonwastes are not based on rulemaking 

petitions, the criteria EPA used to assess 

these NHSMs as categorical non-wastes 

matches the criteria to be used by the 

Administrator to determine whether to 

grant or deny the categorical non-waste 

petitions.10 11 These determinations 

follow the criteria set out in 

§ 241.4(b)(5) to assess additional 

categorical non-waste petitions and 

follow the statutory standards as 

interpreted by EPA in the NHSM rule 

for deciding whether secondary 

materials are wastes. Pursuant to these 

criteria, the supporting information will 

ultimately need to demonstrate that 

each NHSM has not been previously 

discarded (i.e., was not initially 

abandoned or thrown away), or if 

discarded, has been sufficiently 

processed, and is legitimately used as a 

product fuel. The information 

(including supporting tests or studies) 

must also demonstrate that each NHSM 

is used as a non-waste fuel in a 

combustion unit and that it either meets 

the legitimacy criteria as described in 

§ 241.3(d)(1) or, if the NHSM does not 

meet the legitimacy criteria, that the 

NHSM is a legitimate product fuel, after 

balancing the legitimacy criteria with 

other relevant factors (e.g. the nonhazardous secondary material is 

integrally tied to production practices, 

or the material is functionally the same 

as the comparable traditional fuel, etc.). 

Based on comments received on this 

information, the Agency will determine 

whether (or not) to list the three 

proposed NHSMs as categorical nonwastes in a final rule. Specific 

preliminary determinations on whether 

processed C&D wood, paper recycling 

residuals, and creosote-treated railroad 

ties should be listed as categorical nonwastes and how the information was 

assessed by EPA according to the 

criteria in § 241.4(b)(5) are discussed in 

detail in Section V. 

As noted above, the Agency also 

received a petition from the Treated 

Wood Council asking that nonhazardous treated wood be categorically 

listed—a broad category that would 

include creosote-treated railroad ties. 

Other treated wood addressed in the 

petition included waterborne boratebased preservatives, waterborne organicbased preservatives, waterborne copperbased wood preservatives (ammoniacal/ 

alkaline copper quat, copper azole, 

copper HDO, alkaline copper betaine, or 

copper naphthenate); creosote; oilborne 

copper naphthenate; 

pentachlorophenol; or dual-treated with 

any of the above. The Agency is in the 

process of reviewing that petition and 

supplementary information submitted 

subsequent to the petition. Accordingly, 

while creosote treated railroad ties is 

included in the current proposal, other 

treated wood materials identified in the 

Treated Wood Council’s petition are not 

addressed in today’s proposal. If upon 

completion of the Agency’s review of 

the Treated Wood Council’s petition the 

information supports a categorical 

listing of one or more of these other 

treated wood materials, the Agency 

would propose those materials in a 

future rulemaking. 

V. Proposed Categorical Non-Waste 

Listing Determinations 

The sections below describe the three 

additional NHSMs that EPA is 

proposing to categorically list in section 

241.4(a) as not being solid wastes when 

burned as a fuel in combustion units. 

Definitions for these three NHSMs are 

also proposed to be defined in 40 CFR 

241.2 and we are taking comment on 

those definitions. 

A. Construction and Demolition (C&D) 

Debris Processed According to Best 

Management Practices 

1. Detailed Description of C&D Wood 

C&D wood is generated from the 

processing of debris from construction 

and demolition activities for the 

purposes of recovering wood. At 

construction activities, this debris 

results from cutting wood down to size 

during installation or from purchasing 

more wood than a project ultimately 

requires, while at demolition activities, 

this debris results from dismantling 

buildings and other structures or 

removing materials during renovation. 

Information previously compiled by the 

Agency indicates that C&D activities 

generate an estimated 33 to 49 million 

tons of scrap wood each year, 

approximately half of which is of 

acceptable size, quality, and condition 

to be considered available for recovery. 

However, information on the amount of 

processed C&D wood that is burned for 

energy recovery is unavailable, although 

sources surveyed by EPA for the 2010 

proposed Commercial and Industrial 

Solid Waste Incinerator (CISWI) rule 

and the National Emission Standards for 

Hazardous Air Pollutants for Area and 

Major Industrial, Commercial, and 

Institutional Boilers (Boilers) rule 

indicate that between 4.7 to 11.2 million 

tons per year of processed C&D wood 

may be burned for energy recovery.12

Also, as discussed below, because 

clean C&D wood is considered ‘‘clean 


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13Clean C&D wood is included in the definition 

of ‘‘clean cellulosic biomass’’ and thus, may be 

combusted as a traditional fuel if it does not contain 

contaminants at concentrations not normally 

associated with virgin wood. (See 78 FR 9138, 

February 7, 2012 and 40 CFR 241.2.) Conversely, 

C&D wood that is not ‘‘clean’’ is that which must 

be processed to remove contaminants such as leadpainted wood, treated wood containing 

contaminants, such as arsenic and chromium, 

metals and other non-wood materials. (See 78 FR 

9139, February 7, 2013). 

14This rulemaking does not change or replace 

existing state requirements regarding C&D wood. 

See Section VIII, State Authority, for further 

explanation. 

15 76 FR 15456, March 21, 2011 (page 15485); and 

78 FR 9111, February 7, 2013 (page 9138). 

16Recordkeeping requirements for area source 

boilers are found at § 63.11225(c)(2)(ii), while 

recordkeeping requirements for major source boilers 

are found at § 63.7555(d)(2). 

17While the combustor would be responsible for 

maintaining the records that such NHSM met the 

legitimacy criteria, the combustor could request that 

the person that generated the C&D wood provide 

them with documentation that the processing 

operations meets the definition of processing, as 

well as the legitimacy criteria, especially the 

contaminant legitimacy criterion. 

18Comments have been included in docket: EPA– 

HQ–RCRA–2008–0329. Specifically, see the 

document ID#’s ending in –1902, –1910, –1950, 

–1930, –1928, –1946, –1957, –1927, –1893, and 

–1905. 

cellulosic biomass’’ and is already 

excluded from being a solid waste, we 

believe that today’s proposal addresses 

C&D wood generated predominantly 

from demolition activities.13 However, 

clean C&D wood generated from 

construction activities, that is mixed 

with C&D debris that contains 

contaminated material would be subject 

to the same proposed practices and 

requirements described in this proposed 

rulemaking because it is not within the 

definition of ‘‘clean cellulosic biomass.’’ 

Although contractors may segregate 

C&D debris at building sites, the 

common practice—at demolition sites in 

particular—is to send co-mingled debris 

to independent C&D recycling or 

processing facilities. At these facilities, 

operators recover wood scraps from a 

mixture of building materials that often 

includes metals, concrete, plastics, and 

other items that are unsuitable for 

energy recovery in combustion units. 

Some operators use ‘‘positive sorting’’ 

techniques, meaning they specifically 

remove wood scraps from the comingled debris, picking out only 

desirable wood and leaving all other 

C&D debris behind for disposal or other 

recycling processes. Other operators use 

‘‘negative sorting’’ techniques, meaning 

they achieve a similarly clean final 

product by removing or excluding 

contaminated or otherwise undesirable 

material from the C&D debris. 

Regardless of whether they use positive 

or negative sorting, processing facilities 

then grind the recovered wood to a 

specified size and deliver it to energy 

recovery facilities. 

C&D wood processing facilities can 

use a variety of techniques to remove or 

exclude debris unsuitable for a fuel 

product. Typically, processors use some 

combination of source control, 

inspection, sorting, and screening to 

meet the specifications identified by 

their customers (i.e., combustion 

facilities). The nature of the incoming 

C&D debris, the extent of material 

segregation prior to arrival at the 

processing facility, whether positive or 

negative sorting is employed, and the 

scale of the processing facility (e.g., the 

degree of sorting and number of 

screening devices) help determine 

which combination of practices will be 

most effective. Individual states also 

have different requirements related to 

the processing and combustion of C&D 

wood.14 Despite the variety of options, 

certain practices, which are described 

below in Section V.A.4 (Rationale for 

Proposed Listing), are essential to 

ensuring that processing the C&D debris 

produces a legitimate product fuel. In 

addition to excluding or removing a set 

list of C&D materials known to contain 

contaminants (e.g., certain types of 

treated wood), processors must take 

steps to minimize less obvious 

contaminant sources (e.g., lead-based 

paint). Consequently, the standards 

proposed in this rule are designed to 

ensure that the contaminants in the fuel 

that is burned will not be unpredictable, 

even though the sources of the wood 

may vary. 

2. C&D Wood Under Current NHSM 

Final Rules 

In both the March 2011 and February 

2013 NHSM final rules, EPA discussed 

two scenarios under which the Agency 

would consider C&D wood to be a nonwaste fuel.15 First, ‘‘clean’’ C&D wood 

can be burned as a traditional fuel— 

without any requirement for testing or 

recordkeeping—because it is a ‘‘clean 

cellulosic biomass’’ material 

indistinguishable in composition from 

virgin wood. Second, the Agency 

believes that wood recovered from C&D 

debris (i.e., contaminated wood) can be 

sufficiently processed to meet the 

legitimacy criteria and, thus, would be 

a non-waste fuel, although combustion 

facilities burning the material would 

need to keep records documenting the 

material’s non-waste status. Records 

would need to document not only how 

the processing operations meet the 

definition of processing in section 

241.2, but also how the fuel product 

meets the NHSM legitimacy criteria.16 17

The Agency believes that much of the 

C&D wood recovered from construction 

activities is unused and untreated, 

thereby falling under the definition of 

‘‘clean cellulosic biomass’’ (i.e., the first 

scenario), and that much of the C&D 

wood currently recovered from 

demolition activities can be sufficiently 

processed to meet the legitimacy criteria 

(i.e., the second scenario). 

3. Comments Submitted on C&D Wood 

in the December 2011 Proposed Rule 

Although the December 2011 NHSM 

proposed rule did not discuss or solicit 

comments on processed C&D wood, a 

number of commenters submitted 

comments arguing that processed C&D 

wood (i.e., that is recovered from 

demolition activities) should be 

categorically listed as a non-waste fuel 

under section 241.4(a), or otherwise a 

non-waste.18 The commenters’ rationale 

for listing processed C&D wood as a 

non-waste fuel includes the following. 

• It is utilized in combination with 

other biomass materials to optimize and 

manage combustion in boilers due to its 

low moisture/high heat characteristics. 

• It is sufficiently processed to 

remove impurities. 

• From a practical materials 

management standpoint, C&D materials 

are not discarded; collection of most of 

these materials is planned for, with C&D 

recycle sorting and processing yards 

receiving the materials as a destination 

and the point of generation of the fuel 

product. 

• Comments detail the processing and 

test data available for C&D materials, 

which demonstrates their value as a 

fuel. 

• Commenters noted that EPA has 

already included clean C&D materials in 

their proposed clean cellulosic biomass 

definition for traditional fuels, but EPA 

elsewhere identifies C&D materials that 

are not clean as subject to the legitimacy 

criteria. 

The commenters argue, therefore, that 

EPA should remove doubt and list these 

materials in the newly proposed 

§ 241.4(a) as a non-waste fuel given their 

demonstrated fuel value and the 

industry that has been established for 

recycling these non-hazardous 

secondary materials into useful product 

fuel. 

Expanding further on these 

comments, several trade organizations 

submitted information in support of a 

categorical non-waste determination 

that would list processed C&D wood as 

a product fuel when burned in 

combustion units. The information 

suggested that a non-waste listing 

include all C&D wood processed in 


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19 If a person does not believe that the processed 

C&D wood meets the categorical listing, the 

processed C&D wood may still be considered a nonwaste fuel (on a case-by-case basis), although any 

combustor that burns such processed C&D wood 

would need to keep records documenting the 

materials non-waste status pursuant to 

§ 63.11225(c)(2)(ii) and § 63.7555(d)(2). 

20Although industry trade groups did not list 

creosote treated wood as wood that is excluded or 

removed, they provided information indicating that 

C&D debris can include creosote treated wood. 

Based upon the contaminants present in creosote 

treated wood and the types of boilers that burn C&D 

wood (i.e., those that are designed to burn clean 

wood and biomass), we believe it appropriate to 

require operators to exclude or remove creosote 

treated wood. With respect to creosote and as 

discussed later in Section C, the Agency evaluated 

data provided for creosote-treated railway ties and 

determined that boiler design was an integral factor 

in satisfying the contaminant legitimacy criterion. 

21This rulemaking does not change the waste 

status of C&D wood prior to processing, up to which 

point the material would likely be a solid waste 

subject to appropriate federal, state, and local 

requirements unless it meets the definition of 

‘‘clean cellulosic biomass.’’ 

22CAA regulations provide additional safeguards 

to ensure asbestos is removed from buildings prior 

to demolition. Part 61, subpart M, § 61.145 requires 

that owners or operators of a demolition or 

renovation activity to inspect the affected building 

for the presence of asbestos prior to demolition or 

renovation and notify the Administrator. EPA notes, 

however, that the 40 CFR 61.141 definition of 

‘‘facility’’ explicitly excludes ‘‘residential buildings 

having four or fewer dwelling units’’ thus, small 

residential buildings that are demolished or 

renovated are not covered by the Federal asbestos 

NESHAP regardless of whether the demolition or 

renovation is performed by agents of the owner of 

the property or whether the demolition or 

renovation is performed by agents of the 

municipality. See also the ‘‘Asbestos NESHAP 

Clarification of Intent’’ (60 FR 38725; July 28, 1995). 

accordance with industry practices 

proven to produce a wood product 

meeting the NHSM legitimacy criteria. 

The commenters identified ‘‘proven 

practices’’ as the sorting (both 

mechanical and manual) of C&D 

material to separate the following 

contaminants: non-wood material, wood 

treated with pentachlorophenol, 

chromated copper arsenic (CCA) treated 

wood, or other copper, chromium or 

arsenical preservatives, and lead 

(through the separation of either leadpainted wood or fines or through other 

means as specified in applicable state 

law). Commenters also compiled a 

dataset of contaminant concentrations 

in processed C&D wood from nine 

combustion facilities in seven states to 

demonstrate the efficacy of the 

identified practices. 

Case-by-case analysis is not necessary, 

the trade organizations contend, to 

ensure that sufficient processing occurs 

and that C&D wood products—produced 

by different processors using different 

sorting techniques—are consistently 

managed as a valuable commodity, have 

meaningful heating values, and contain 

contaminants at levels comparable to or 

lower than traditional fuels. Instead, 

they argue that persons burning C&D 

wood for energy recovery only need to 

certify that the processed C&D wood 

came from a facility using the 

aforementioned sorting practices. 

Other commenters on the December 

2011 NHSM proposed rule asserted that 

C&D wood should be regulated as a 

solid waste based on what they 

described as highly unpredictable 

contaminant levels. The commenters 

referenced specific combustion facilities 

that accepted C&D wood, including 

lead-painted wood and CCA-treated 

wood, as well as plastics and foreign 

debris. 

4. Scope of Proposed Categorical NonWaste Listing for C&D Wood 

EPA has reviewed the information 

submitted, including the study of 

contaminants in processed C&D wood 

from seven states. Based on this review, 

the Agency is proposing a categorical 

non-waste listing as follows: 

Construction and demolition (C&D) 

wood processed from C&D debris 

according to best management practices. 

Combustors of C&D wood must obtain a 

written certification from C&D 

processing facilities that the C&D wood 

has been processed by trained operators 

in accordance with best management 

practices.19 Best management practices 

for purposes of this categorical listing 

must include sorting by trained 

operators that excludes or removes the 

following materials from the final 

product fuel: non-wood materials (e.g., 

polyvinyl chloride and other plastics, 

drywall, concrete, aggregates, dirt, and 

asbestos), and wood treated with 

creosote,20 pentachlorophenol, 

chromated copper arsenate, or other 

copper, chromium, or arsenical 

preservatives. In addition: 

(i) C&D processing facilities that use 

positive sorting—where operators pick 

out desirable wood from co-mingled 

debris—must either exclude all painted 

wood from the final product fuel, use Xray Fluorescence to ensure that painted 

wood included in the final product fuel 

does not contain lead-based paint, or 

require documentation that a building 

has been tested for and does not include 

lead-based paint before accepting 

demolition debris from that building. 

(ii) C&D processing facilities that use 

negative sorting—where operators 

remove contaminated or otherwise 

undesirable materials from co-mingled 

debris—must remove fines (i.e., smallsized particles that may contain 

relatively high concentrations of lead 

and other contaminants) and either 

remove painted wood, use X-ray 

Fluorescence to detect and remove leadpainted wood, or require documentation 

that a building has been tested for and 

does not include lead-based paint before 

accepting demolition debris from that 

building. 

5. Rationale for Proposed Listing 

a. Processing of C&D Wood 

EPA considers the wood present in 

C&D debris to be a solid waste prior to 

processing, and persons must transform 

the debris into a legitimate product fuel 

in order to burn the material as a nonwaste fuel.21 Based on the information 

submitted to date, EPA concludes that 

C&D wood processed according to best 

management practices—provided those 

management practices satisfy the 

conditions set forth in today’s 

proposal—would be sufficiently 

processed such that it would be 

transformed into a non-waste fuel 

product. In accordance with 40 CFR 

241.2, processing must include 

operations that transform discarded 

NHSM into a non-waste fuel or nonwaste ingredient, including operations 

necessary to: remove or destroy 

contaminants; significantly improve the 

fuel characteristics (e.g., sizing or drying 

of the material, in combination with 

other operations); chemically improve 

the as-fired energy content; or improve 

the ingredient characteristics. Minimal 

operations that result only in modifying 

the size of the material by shredding do 

not constitute processing for the 

purposes of the definition. 

Compared to mixed C&D debris, 

processed C&D wood will have 

significantly fewer contaminants and 

improved fuel characteristics. 

Specifically, the removal or exclusion of 

specified materials, such as creosotetreated wood (PAHs, dibenzofuran), 

pentachlorophenol-treated wood 

(pentachlorophenol, dioxins), CCAtreated wood (chromium, arsenic), other 

copper, chromium, and arsenical treated 

wood, plastics (chlorine), drywall 

(sulfur), lead-based paint (lead), as well 

as insulation and other materials 

containing asbestos,22 would result in 

significant contaminant removal. In 

addition, the removal of concrete, 

aggregates, dirt, and other noncombustible material will significantly 

increase the material’s energy value. 

Finally, grinding all remaining wood to 

a specified size will allow combustors to 

transport, store, and use processed C&D 

wood in the same manner as virgin 

wood and biomass materials. 

As noted earlier in Section V.A.1 

(Detailed Description of C&D Wood), the 


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23Results from a pilot study conducted in the 

state of Florida indicate that the processing 

facilities that were highly successful in identifying 

treated wood (i.e., CCA-treated wood) had extensive 

worker training programs in place. See Blassino, 

Monika, et al. ‘‘Methods to Control Fuel Quality at 

Wood Burning Facilities.’’ 

24Appendix A of April 26, 2013, submittal from 

Susan Bodine on behalf of BPA and CMRA. 

25USEPA, Office of Air Quality Planning and 

Standards, Emissions Database for Boilers and 

Process Heaters Containing Stack Test, CEM & Fuel 

Analysis Data Reported Under ICR No. 2286.01 and 

ICR No. 2286.03 (Version 6). EPA Docket/Document 

Number EPA–HQ–OAR–2002–0058–3255. February 

2011. 

nature of the incoming C&D debris, the 

extent of material segregation prior to 

arrival at the processing facility, 

whether positive or negative sorting is 

employed, and the scale of the 

processing facility (e.g., the degree of 

sorting and number of screening 

devices) determine which combination 

of practices will be most effective. The 

Agency believes that the proposed best 

management practices when performed 

by trained operators will address the 

variability within the industry, such 

that C&D processing facilities will 

produce a non-waste fuel product with 

contaminants that are no greater than 

clean biomass, regardless of the 

characteristics (e.g., extent of material 

segregation prior to arrival at the 

processing facility) that can influence 

the level of contaminants in the final 

wood product. Thus, the Agency 

believes that such processing meets the 

definition of processing in 40 CFR 

241.2. 

Further, to ensure that the C&D wood 

is processed according to best 

management practices, the Agency 

believes it is important for the processor 

to certify that they are meeting such best 

management practices, using trained 

operators.23 Therefore, we are also 

proposing that the combustor be 

required to obtain a written certification 

from the C&D processor(s) that they 

have used trained operators in 

processing the C&D debris in 

accordance with best management 

practices to produce processed C&D 

wood. The combustor has the ultimate 

responsibility to determine that the C&D 

wood has been sufficiently processed. 

b. Legitimacy Criteria 

In determining whether to list 

processed C&D wood as a categorical 

non-waste fuel in § 241.4(a), the Agency 

evaluated the legitimacy criteria in 40 

CFR 241.3(d)(1)—that is, whether it is 

managed as a valuable commodity, 

whether it has a meaningful heating 

value and is used as a fuel in a 

combustion unit to recover energy, and 

whether contaminants or groups of 

contaminants are at levels comparable 

to or less than those in the traditional 

fuel the unit is designed to burn. To the 

extent that processed C&D wood does 

not meet one or more of the legitimacy 

criteria, the Agency may consider other 

relevant factors in determining whether 

to propose to list C&D wood as a 

categorical non-waste fuel (40 CFR 

241.4(b)(5)(ii)) (see discussion on 

formaldehyde below). 

i. Managed as a Valuable Commodity 

Regarding the first legitimacy 

criterion, EPA believes that C&D trade 

organizations have demonstrated that 

both processors and combustors manage 

processed C&D wood as a valuable 

commodity. Specifically, after 

processing, including grinding to size, 

processors ship the material to energy 

recovery facilities in covered chip vans 

or semi-trailers. The material is then 

stored on-site at the combustion 

facilities in wood fuel storage yards and 

generally used within 90 days of 

delivery. Because storage does not 

exceed reasonable time frames, and 

management is similar to that of virgin 

wood and biomass, the Agency has 

determined that processed C&D wood 

meets this legitimacy criterion. 

ii. Meaningful Heating Value and Used 

as a Fuel To Recover Energy 

With respect to the second legitimacy 

criterion, EPA believes C&D trade 

organizations have demonstrated that 

processed C&D wood has a meaningful 

heating value and is used as a fuel to 

recover energy. Specifically, 

information submitted to the Agency 

demonstrates that processed C&D wood 

has an average as-fired energy content of 

6,640 Btu/lb,24 which is greater than 

5,000 Btu/lb, which the Agency 

considers to have a meaningful heating 

value (see 76 FR 15541, March 21, 

2011). This also compares favorably to 

information compiled by EPA in 2011, 

in which 95 samples of unadulterated 

timber burned by major source boilers 

across the country exhibited an average 

as-fired energy content of 5,150 Btu/

lb.25 According to C&D trade 

organizations, energy recovery facilities 

purchase processed C&D wood and burn 

the material as fuel to generate 

electricity. Thus, EPA has determined 

that processed C&D wood meets this 

legitimacy criterion. 

iii. Contaminants Comparable to or 

Lower Than Traditional Fuels 

To address the third legitimacy 

criterion, C&D trade organizations 

provided EPA with contaminant 

analyses of more than 220 samples of 

processed C&D wood from nine 

combustion facilities in California, 

Maine, Massachusetts, Minnesota, New 

York, the state of Washington, and 

Wisconsin. EPA has compared the 

contaminant levels found in the 

processed C&D wood to the contaminant 

levels found in clean wood and biomass 

materials since any unit burning 

processed C&D wood can clearly burn 

clean wood and biomass materials as 

well. 

Summary results for the contaminant 

comparisons are presented in Table 1, 

with the contaminants most likely to be 

present in unprocessed C&D debris 

listed first. Specifically, arsenic and 

chromium are likely present due to 

CCA-treated wood; lead due to leadbased paint chips; mercury due to light 

bulbs, ballasts, thermostats and other 

mercury-containing devices present in 

buildings; chlorine due to PVC and 

other plastics; sulfur due to plaster or 

drywall containing gypsum, a sulfate 

mineral; formaldehyde due to resinated 

wood; and pentachlorophenol due to 

utility poles and other treated wood 

products currently accepted by some 

combustion facilities. Although sources 

of fluorine in C&D debris are less clear, 

the contaminant’s presence may be due 

to its use in flame retardants 

incorporated into carpet, furniture, and 

other building materials. 

TABLE 1—COMPARISON OF CONTAMINANTS IN CLEAN WOOD/BIOMASS AND PROCESSED C&D WOOD 26 27 28

Contaminant 

Clean Wood/Biomass Processed C&D wood 

Range # samples Average 90% UPL Maximum 

Contaminants Most Likely to be Present in C&D Debris 

Arsenic ............................................................ ND—298 ............................. n = 221 35.9 91.8 261 

Chromium ....................................................... ND—340 ............................. n = 212 45.0 116 283 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS3
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26Sources: Clean Wood/Biomass ranges taken 

from a combination of EPA data and literature 

sources, as presented in EPA document 

Contaminant Concentrations in Traditional Fuels: 

Tables for Comparison, November 29, 2011, 

available at www.epa.gov/epawaste/nonhaz/define/ 

index.htm. Processed C&D Wood data from April 

26, 2013, submittal by Susan Bodine on behalf of 

BPA and CMRA. 

27All units expressed in parts per million (ppm) 

on a dry weight basis. 

28Upper Prediction Limit (UPL) calculations were 

made by commenters using EPA’s ProUCL software, 

using either a lognormal distribution or 

nonparametric statistics, as appropriate. 

29 76 FR 15523–24, March 21, 2011. 

30 In addition to determining that the one sample 

of fluorine is within a small acceptable range, one 

can consider that the Upper Prediction Limit (UPL) 

for fluorine in processed C&D wood, when 

calculated at a 90 percent confidence level based on 

all 45 samples (139 ppm), is well within the range 

of clean wood and biomass materials. The UPL 

taken at a 90 percent confidence level yields a 

number (i.e., 139 ppm), and in the context of 

analyzing contaminant samples, persons can be 

confident that the next sample taken will be at or 

below that number 90 percent of the time. 

TABLE 1—COMPARISON OF CONTAMINANTS IN CLEAN WOOD/BIOMASS AND PROCESSED C&D WOOD 26 27 28—Continued 

Contaminant 

Clean Wood/Biomass Processed C&D wood 

Range # samples Average 90% UPL Maximum 

Lead ................................................................ ND—340 ............................. n = 224 53.9 136 482 

Mercury ........................................................... ND—1.1 .............................. n = 180 0.1 0.16 0.7 

Chlorine .......................................................... ND—5400 ........................... n = 173 809 1567 3521 

Fluorine ........................................................... ND—300 ............................. n = 86 45.9 139 313 

Sulfur .............................................................. ND—8700 ........................... n = 183 1300 2200 7300 

Formaldehyde ................................................. 1.6—27 ............................... n = 45 47.6 104.2 176.8 

Pentachlorophenol .......................................... ND ....................................... n = 21 19.7 N/A 126 

Contaminants Less Likely to be Present in C&D Debris 

Antimony ......................................................... ND—26 ............................... n = 50 2.6 7.1 16.6 

Beryllium ......................................................... ND—10 ............................... n = 50 0.1 0.23 0.3 

Cadmium ........................................................ ND—17 ............................... n = 107 0.3 0.53 1.3 

Cobalt ............................................................. ND—213 ............................. n = 50 1.1 2.1 3.5 

Manganese ..................................................... ND—15800 ......................... n = 50 78.8 115 180 

Nickel .............................................................. ND—540 ............................. n = 50 4.0 8.6 27.4 

Selenium ......................................................... ND—9 ................................. n = 43 0.4 1.0 1.3 

Nitrogen .......................................................... 200—39500 ........................ n = 75 3900 8000 12600 

With the exception of four 

contaminants—fluorine, lead, 

formaldehyde and pentachlorophenol, 

every sample of processed C&D wood’s 

contaminant levels was well within the 

range of clean wood and biomass 

materials. With respect to these four 

contaminants: 

• Fluorine: While only one sample 

out of 45 samples of processed C&D 

wood exceed the range for fluorine in 

clean wood and biomass, the Agency 

still considers fluorine to be at levels 

comparable to those found in clean 

wood and biomass since this lone 

sample is present within a small 

acceptable range (i.e., 313 ppm is 

comparable to 300 ppm).29 30

• Lead: Despite efforts by C&D 

processing facilities to remove lead, the 

data demonstrate that some processing 

facilities do a better job than others, 

with isolated samples from 

Massachusetts reaching 407 and 437 

ppm lead, and one of seven samples 

from Wisconsin reaching 482 ppm lead. 

While most of the 224 samples detected 

lead within the range found in clean 

wood and biomass materials (ND—340 

ppm), it is important to recognize that 

each high sample could represent a 

large amount of processed C&D wood 

produced by an outlier facility. 

Accordingly, an overly broad categorical 

non-waste listing could include 

processed C&D wood from facilities 

where the final product consistently 

contains high lead levels, amounts that 

would not be considered a normal part 

of clean wood or biomass. In this 

instance, one facility in Massachusetts 

provided a composite sample for each of 

seven days, and two out the seven 

samples exceeded the range of lead 

values found in clean wood and 

biomass. That could mean more than 28 

percent of the processed C&D wood 

produced by that facility exceeds lead 

levels found in clean wood and 

biomass. C&D processing facilities have 

options for minimizing lead 

concentrations in the processed C&D 

wood they produce, and information 

submitted with the contaminant dataset 

indicates that the two facilities (one in 

Massachusetts, the other in Wisconsin) 

exhibiting the highest lead levels shared 

similar lead minimization strategies. 

Although both facilities accept painted 

wood, neither uses X-ray Fluorescence 

(XRF) analyzers to detect and remove 

lead-based painted wood. Nor do they 

require documentation of a building 

inspection that includes testing for leadbased paint. By comparison, the 

Washington facility included in the 

dataset requires documentation of XRF 

testing before accepting demolition 

debris from a particular building, and as 

evidenced by a maximum lead 

concentration of 26 ppm, lead 

concentrations in the processed C&D 

wood it burns tested lower than for any 

other facility in the dataset. The 

Minnesota facility included in the 

dataset does not accept painted wood, 

and as evidenced by a maximum lead 

concentration of 110 ppm, lead 

concentrations in the processed C&D 

wood it burns are also well within the 

range of clean wood and biomass 

materials. Both the Massachusetts 

facility and the Wisconsin facility relied 

solely on removing ‘‘fines’’ to control 

lead levels. Fines are small-sized 

particles that may contain relatively 

high concentrations of contaminants, 

and facilities can remove them before 

and after shredding via screens or 

flotation. EPA does not dispute that the 

removal of fine particles can reduce the 

levels of lead and other contaminants, 

particularly for C&D processing facilities 

using negative sorting. Without 

additional measures, however, this 

strategy does not appear to remove 

sufficient lead to transform the C&D 

debris into a product fuel in all cases 

that would warrant processed C&D 

wood being categorically listed as a nonwaste fuel. As a result, the Agency is 

proposing conditions related to lead 

removal as part of the categorical listing 

for processed C&D wood. Specifically, 

EPA is proposing the following 

conditions: 

Æ Facilities using positive sorting 

must either: (1) Exclude painted wood 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS3
Federal Register / Vol. 79, No. 71 / Monday, April 14, 2014 / Proposed Rules 21015 

31Based on discussions with plant staff during an 

EPA tour of Industrial Disposal Services, Inc. Broad 

Run Recycling facility in Manassas, Virginia on 

May 23, 2013. The facility processes discarded C&D 

wood into a product fuel. 

32On May 29, 2013, EPA proposed two rules to 

protect the public from the risks associated with 

exposure to formaldehyde. The proposals would 

implement the Formaldehyde Standards for 

Composite Wood Products Act (Title VI of the Toxic 

Substances Control Act): one will implement the 

Act’s emission standards and the other will ensure 

products meet the TSCA formaldehyde emission 

standards. See http://www.epa.gov/oppt/chemtest/

formaldehyde/. 

33At this time, the Agency is not requiring 

resinated wood to be excluded or removed from 

C&D debris as part of best management practices, 

but is requesting comment on the decision to 

balance elevated formaldehyde levels with greater 

heating value and consistent moisture content. See 

Section 6. Summary and Request for Comments. 

34The categorical listing proposed in this rule 

would allow material to be considered clean 

biomass without having to test each batch of 

processed wood for contaminant levels. Instead, the 

material could be considered clean biomass if 

certain practices are followed, as described in the 

rule. 

35Where any one of the legitimacy criteria in 

§ 241.3(d)(1) is not met, ‘‘other relevant factors’’ 

may be considered by the Administrator when 

granting or denying a non-waste determination. See 

§ 241.4(b)(5)(ii). 

via the sorting process by selecting only 

unpainted wood from incoming C&D 

debris for further processing, (2) use 

XRF to ensure that painted wood 

included in the final product fuel does 

not contain lead-based paint, or (3) 

require documentation that a building 

has been tested for and does not include 

lead-based paint before accepting 

demolition debris from that building. 

Æ Facilities using negative sorting 

must remove fine particles, which may 

include asbestos fibers and other 

contaminants in addition to lead, and 

they must also either: (1) remove 

painted wood via the sorting process, (2) 

use XRF to detect and remove leadpainted wood, or (3) require 

documentation that a building has been 

tested for and does not include leadbased paint before accepting demolition 

debris from that building. 

The Agency believes, based on the 

available information, that facilities 

complying with these conditions would 

produce processed C&D wood that 

contains lead at levels comparable to 

those in clean wood and biomass. 

• Pentachlorophenol: The presence of 

pentachlorophenol in some processed 

C&D wood results from processors 

either choosing to include industrial 

wood products treated with 

pentachlorophenol in their product fuel 

(in the case of positive sorting) or from 

processors not removing those same 

industrial wood products from C&D 

debris (in the case of negative sorting) 

prior to the final grinding step. EPA 

restricted the use and sale of 

pentachlorophenol in 1987, with no 

registered residential uses allowed for 

the past 26 years. The Agency believes 

that the pentachlorophenol 

concentrations in processed C&D wood 

are a direct result of easily identified 

wood products, predominantly utility 

poles, that processing facilities can 

choose to exclude or remove prior to 

grinding recovered C&D wood.31

Therefore, under the regulatory 

conditions proposed in today’s rule, 

processing facilities must exclude or 

remove these known sources of 

pentachlorophenol from their final 

product fuel for it to be considered a 

categorical non-waste fuel. 

• Formaldehyde: For C&D debris 

processed pursuant to best management 

practices, inclusive of the regulatory 

conditions in today’s proposal, 

formaldehyde (present in concentrations 

as high as 176.8 ppm versus 27 ppm in 

clean wood/biomass) is the only 

remaining contaminant that raises 

questions as to whether it meets the 

contaminant legitimacy criterion. 

Although the situation appears similar 

to the categorical non-waste listing for 

resinated wood in section 241.4(a)(2), 

details surrounding use of the two 

NHSMs as fuel are not the same. In the 

case of resinated wood, as defined in 

section 241.2, the Agency determined 

that energy recovered from the 

combustion of manufacturing process 

residues and off-specification resinated 

wood is integrally tied to the industrial 

production process. The equivalent for 

C&D wood would be sawmills reliant on 

recovering energy from sawdust and offspecification lumber to power the 

construction lumber production 

process. Sawmills may do this, but that 

is not the scenario commenters have 

described and the Agency is evaluating. 

While EPA disagrees with petitioners’ 

claims that resinated wood components 

in C&D debris are categorical nonwastes and the corollary that 

formaldehyde concentrations are 

therefore irrelevant, the Agency agrees 

that additional factors are worth 

considering in determining whether to 

propose to list processed C&D wood 

categorically as a non-waste fuel. First, 

formaldehyde concentrations in 

processed C&D wood may reach 176.8 

ppm, but are lower than in pure 

resinated wood, which may reach 200 

ppm. National rules developed by the 

CARB Composite Wood ATCM, per 

Public Law 111–199, will ensure that 

newly produced resinated wood will 

contain even less formaldehyde in the 

future by setting limits on how much 

formaldehyde may be released.32

Second, for many combustors, 

processed C&D wood scraps that 

include resinated wood components, 

actually have added value and are either 

selected for (in the case of positive 

sorting) or specifically not removed (in 

the case of negative sorting) because the 

wood has been kiln-dried prior to use in 

construction. Kiln-dried wood has a 

greater heating value than virgin wood, 

almost double in some cases. Kiln-dried 

wood also has a more consistent 

moisture content; an equally important 

benefit to combustors because a 

consistent fuel improves combustion 

efficiency and leads to reduced 

emissions of particulate matter, carbon 

monoxide and other organic hazardous 

air pollutants.33

Therefore, based on all available 

information, including a careful analysis 

of contaminant levels, the Agency is 

proposing to categorically list in 40 CFR 

241.4(a) processed C&D wood using 

trained operators in accordance with 

best management practices and certified 

as such by the processor as a non-waste 

fuel.34 After weighing the evidence, the 

Agency has concluded that, provided 

the regulatory conditions in today’s 

proposal are met, the processing of 

mixed C&D debris transforms the 

material into a product fuel. 

6. Summary and Request for Comment 

EPA believes it has sufficient 

information to determine that C&D 

debris that is processed by trained 

operators according to best management 

practices is not a solid waste when used 

as a fuel, provided those practices meet 

the criteria proposed today. The Agency 

invites comment on this proposed 

categorical non-waste determination, 

and specifically on the following items: 

Processing Techniques for lead and 

pentachlorophenol. We request 

comment on the efficacy of specific 

processing techniques related to lead 

referenced in today’s proposal, as well 

as the feasibility of reducing 

pentachlorophenol concentrations in 

processed C&D wood by excluding or 

removing utility poles and other 

industrial wood products known to be 

treated with the chemical. 

Formaldehyde levels. The Agency 

seeks comment on the decision to 

balance elevated formaldehyde levels 

with the greater heating value and more 

consistent moisture content that 

resinated wood components lend to 

processed C&D wood, rather than 

specifically requiring that resinated 

wood be excluded or removed from C&D 

debris as part of the best management 

practices.35 Any additional factors that 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS3
21016 Federal Register / Vol. 79, No. 71 / Monday, April 14, 2014 / Proposed Rules 

36Fattah, Hassan Abdel, et al. ‘‘Online Sorting of 

Recovered Wood Waste Using Automated X-Ray 

Technology’’ Final Report; November 30, 2009. See 

p. 2. 

37Blassino, Monika, et al. ‘‘Methods to control 

Fuel Quality at Wood Burning Facilities.’’ 

38PAN stands for the chemical name of 1-(2- 

pyridylazo)-2-naphthol, an orange-red solid with a 

molecular formula C15H11N3O. It is used to 

determine the presence of almost all metals 

excluding alkali metals. The stain is not specific to 

arsenic within CCA. It reacts with the copper, so 

that wood treated with any copper-based 

preservative will also test positive using this stain. 

39The Agency is proposing sorting by ‘‘trained 

operators’’ under best management practices. Here, 

the Agency requests comment regarding whether 

training programs should include a component 

specific to sorting treated wood from untreated 

wood. 

40 76 FR 15478 (March 21, 2011); codified at 

§ 241.2. 

41Management of disaster debris can involve 

significantly greater volumes. For example, prior to 

the 1994 Northridge earthquake in Los Angeles, one 

local company processed 150 tons of C&D debris 

per day. After the earthquake, the city picked up as 

much as 10,000 tons of C&D debris per day. 

42Section 241.4 lists the categorical or ‘‘Nonwaste determinations for specific non-hazardous 

secondary materials when used as a fuel.’’ 

43These sections state that for units combusting 

NHSM as fuel per § 241.4, you must keep records 

documenting that the material is listed as a nonwaste under § 241.4(a). 

would be appropriate to consider are 

welcome. 

CCA-treated wood. As proposed, 

CCA-treated wood is to be excluded or 

removed from C&D debris. Although the 

data submitted to the Agency indicates 

that arsenic and chromium 

concentrations in processed C&D wood 

are comparable to levels found in 

traditional fuels, there is some concern 

that because a majority of CCA-treated 

wood is still in use, we will see an 

increase in the amount of CCA-treated 

wood in C&D debris. Currently, CCAtreated wood can represent up to 30% 

of the C&D wood waste stream.36 The 

concern is further compounded by the 

reality that visual identification of CCAtreated wood is at times very difficult, 

especially when the wood is weathered, 

dirty, painted, or if the wood is 

characterized by low retention levels.37

One pilot study conducted in the state 

of Florida showed that visual sorting of 

CCA-treated wood at three different 

facilities produced differing results of 

success. The two facilities with the 

greatest success, which correctly 

identified 89% and 90% of the presorted wood as untreated wood, had 

provided extensive training to its 

employees. The third facility correctly 

identified 60% as untreated wood. 

Given the variability in visually 

identifying untreated versus treated 

wood, augmenting technologies have 

been developed to detect the presence of 

arsenic, copper, and chromium, as well 

as other contaminants. Studies have 

concluded that the use of stains (e.g., 

PAN Indicator Stain) 38 and X-ray 

Florescence (XRF) technology are the 

most promising technologies, with 

chemical stains being suitable for 

sorting small quantities of wood and 

XRF technology being better suited for 

sorting large quantities of wood. 

Again, the Agency’s concern is based 

on anticipated increases of CCA-treated 

wood in C&D debris, as well as the 

accuracy of visual sorting among C&D 

processors. Therefore, the Agency 

requests comment on the viability of 

either requiring, as best management 

practices, C&D processors to implement 

formal training programs that emphasize 

sorting of treated wood from untreated 

wood 39 or the use of XRF technology to 

provide greater certainty that CCAtreated wood is removed from the 

processed C&D wood. 

Disaster Debris. The definition for 

C&D wood as proposed does not include 

disaster debris. The Agency has defined 

‘‘clean cellulosic biomass’’ to include 

clean wood found in disaster debris.40

However, disaster debris wood that is 

mixed with contaminated materials 

(e.g., lead-based painted wood, asbestos 

containing materials, etc.) has not been 

specifically addressed. The Agency 

notes that management of disaster 

debris is more expedited and less 

controlled and thus, prone to include 

contaminants that might otherwise be 

sorted out prior to processing.41 Despite 

these concerns, the Agency requests 

comment on the appropriateness of 

including wood that is recovered from 

disaster debris, but that is mixed with 

other contaminated materials prior to 

arrival at the processing facility, as 

processed C&D wood and eligible for the 

categorical non-waste listing. 

Commenters should provide any data or 

information that demonstrates mixed 

disaster debris wood, once processed, 

produces wood that contains 

contaminants comparable to or lower 

than biomass and virgin wood. Further, 

whether other conditions imposed by 

contingency plans, for example, can 

facilitate the removal of contaminated 

material found in disaster debris. 

Trained operators. The proposed best 

management practices require sorting by 

‘‘trained operators’’ to remove or 

exclude all non-wood debris, certain 

treated wood, and lead-based painted 

wood from the final product fuel. The 

Agency believes that operators who are 

trained to sort C&D debris, especially to 

recognize treated wood, play an 

important role in reducing contaminant 

levels in the final fuel product. 

Therefore, we request comment on 

whether the Agency should require that 

C&D processors have formal training 

programs in place as part of the best 

management practices, as well as 

whether processors would be required 

to keep records as a condition of the 

categorical listing to demonstrate that 

such operators have been formally 

trained. The Agency is not prescribing 

what a training program could include 

at this time. Certain factors such as 

where the C&D debris originates from 

and the amount of sorting prior to 

arrival at the processing facility can 

influence the extent and type of 

contaminated material arriving at the 

processing facility. Thus, the Agency 

also seeks comment on training program 

requirements that would be flexible 

enough to address the variability of the 

incoming C&D debris, but that provide 

added assurance that C&D processing 

facilities are producing a non-waste fuel 

product with contaminants that are no 

greater than clean wood/biomass. 

Written Certification. As proposed, 

the combustor would need to obtain a 

written certification from the C&D 

processor that the C&D wood has been 

processed by trained operators in 

accordance with best management 

practices. The written certification 

could take the form of a contract, 

purchase agreement, or other document 

that requires the supplier to process the 

C&D wood according to combustor 

specifications and best management 

practices. It is the Agency’s 

understanding that purchase agreements 

and contracts are common between a 

processor/supplier and combustor. 

Thus, we request comment on whether 

such agreements and contracts are 

sufficient documentation (i.e., can serve 

as the written certification) or if a 

written certification statement 

developed specifically to address the 

requirements in this proposal would be 

clearer and more effective. We would 

note that the existing record keeping 

requirements for combustors that 

combust NHSMs as fuels listed under 

section 241.4,42 the purchase agreement, 

contract, or other document that would 

meet the written certification 

requirement would be considered a 

‘‘record’’ which satisfies the record 

keeping requirements of sections 

60.2740(u) (Emissions Guidelines) and 

60.2175(w) (New Source Performance 

Standards) for CISWI units and sections 

63.11225(c)(2)(ii) for area source boilers 

and 63.7555(d)(2) for major source 

boilers.43


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44See Attachment 4, page 1, footnote 2 of 

AF&PA’s Comments to Docket: EPA–HQ–RCRA– 

2008–0329–0871. 

45Because the incoming feedstock may contain a 

number of other materials, including metals, metals 

may also be recovered and sent for recycling. 

46Although we consider PRRs to be ‘‘primarily’’ 

composed of unsuitable fibers, PRRs may also 

include small amounts of solids and non-fiber 

packaging materials as described by the listing of 

contaminants, when burned as fuel. 

47 Generation, Management, and Processing of 

Paper Processing Residuals. Industrial Economics 

Corporation, October 26, 2012. 

48 Generation, Management, and Processing of 

Paper Processing Residuals. Industrial Economics 

Corporation, October 26, 2012. This is posted 

within the docket for today’s rulemaking (Docket: 

EPA–HQ–RCRA–2013–0110). 

49A cogeneration plant is one that generates 

electricity and useful heat (instead of releasing it 

into the environment via cooling towers, for 

example) for heating purposes either on-site or for 

use nearby. 

50National Council for Air and Stream 

Improvement, Inc. Technical Bulletin (TB) No. 806, 

‘‘Beneficial Use of Secondary Fiber Rejects,’’ pp. 

10–11. See attachment to AF&PA Comments to 

Docket, August 3, 2010 (docket document ID 

number: EPA–HQ–RCRA–2008–0329–0871). 

51Another term industry often uses when 

referring to OCC rejects is ‘‘recycling process 

residuals’’ which was identified in the March 2011 

final rule (76 FR 15486). 

52 Generation, Management, and Processing of 

Paper Processing Residuals. Industrial Economics 

Corporation, October 26, 2012. 

53 78 FR 9111, February 7, 2013 (page 9173). 

B. Paper Recycling Residuals (PRRs) 

1. Detailed Description of PRRs 

Paper recycling residuals (PRRs) are a 

co-product of the paper recycling 

manufacturing process and are 

generated on-site at paper recycling 

mills. The feedstock used in paper 

recycling mills, where PRRs are 

generated, is post-consumer paper, such 

as magazines, newspaper, office paper, 

and old corrugated containers obtained 

through various commercial and 

residential recycling programs or 

purchased from retail establishments.44

However, some paper recycling mills’ 

feedstock is limited solely to old 

corrugated containers. The paper 

recycling process generates two 

materials: (1) Recovered fibers used to 

make new paper and paperboard 

products; and (2) processing residuals 

(or PRRs) that are not suitable for 

making new paper products, but are 

landfilled, sent for metals recycling, or 

used as a fuel.45 Today’s proposal 

considers only the processing residuals, 

or ‘‘PRRs,’’ that primarily consist of 

unsuitable wood fibers that are used as 

a fuel.46 See Section V.B.4 (Rationale for 

Proposed Listing) below for a more 

detailed description of how and where 

PRRs are generated in the paper 

recycling process. 

Current data indicates that paper 

recycling mills generate between 

450,000 and 600,000 tons of PRRs per 

year. Approximately 30 percent of the 

PRRs (135,000 to 180,000 tons) 

generated are burned for their fuel value 

at 15 to 20 different paper recycling 

mills.47 Although there are over 100 

paper recycling mills across the U.S., 

the majority of mills’ boilers use natural 

gas and cannot burn solid fuels. As a 

result, PRRs generated in their processes 

generally are landfilled. At any 

particular paper recycling mill capable 

of burning PRRs (i.e., their boilers burn 

solid fuel), between 55 to 100 percent of 

the PRRs generated on-site are burned 

and may represent between 20 to 25 

percent of the total solid fuel burned in 

their solid fuel boilers. Of the 30 percent 

of PRRs burned as fuel, no more than 5 

percent is burned off-site.48 For the 

PRRs burned off-site, they appear to be 

used to supplement other fuels burned 

at either a commercial cogeneration 

plant 49 or commercial biomass 

gasification plant.50

The Agency previously understood 

PRRs to be a term industry commonly 

used to refer to Old Corrugated 

Container (OCC) rejects.51 Since 

publication of the March 2011 NHSM 

final rule and the December 23, 2011 

proposal, however, the Agency has 

received comments more appropriately 

identifying OCC rejects as a subset of 

the PRR universe. Specifically, OCC 

rejects refers to only one grade of 

recovered fiber, whereas PRRs 

encompass residuals from all types of 

fiber grades. Therefore, in today’s 

proposal, the Agency is including OCC 

rejects within the broader PRR universe 

in a proposed categorical non-waste 

determination. 

2. OCC Rejects Under Current NHSM 

Rules 

a. March 2011 NHSM Final Rule 

In the March 2011 NHSM final rule, 

EPA disagreed with those commenters 

who argued that OCC rejects should be 

considered a traditional or alternative 

fuel. On the other hand, we believed 

that OCC rejects are not discarded when 

used within the control of the generator, 

such as at pulp and paper mills, since 

these NHSMs are part of the industrial 

process. In addition, we stated that the 

data submitted during the comment 

period would seem to suggest that these 

materials would or could meet the 

legitimacy criteria. For example, the 

data indicated that the contaminant 

levels in these materials are comparable 

to, if not less than, those in traditional 

fuels used at pulp and paper mills. With 

respect to the meaningful heating value 

criterion, we noted that, although the 

Btu value of OCC rejects, as fired, is 

lower than 5,000 Btu/lb, it can still meet 

this criterion if it can be demonstrated 

that the combustion unit can costeffectively recover energy from these 

materials. Last, the information 

submitted also demonstrated that OCC 

rejects are managed as a valuable 

commodity as they are managed in the 

same manner as the analogous fuel— 

bark (76 FR 15456, March 21, 2011 

(pages 15486–7). Therefore, the Agency 

generally concluded that OCC rejects 

burned as a fuel within the control of 

the generator were not solid wastes. 

b. February 2013 NHSM Final Rule 

Under the February 2013 final rule, 

we reiterated our belief that paper 

recycling residuals (which include OCC 

rejects) are not discarded when burned 

under the control of the generator, since 

these non-hazardous secondary 

materials are part of the industrial 

process. Also, since publication of the 

March 2011 final rule and during 

finalization of the February 2013 final 

rule, we received additional information 

regarding the cost effectiveness of PRRs 

used as a fuel, including the amount of 

PRRs replacing traditional fuels at paper 

recycling mills and percentages of 

residuals generated that are combusted 

as a fuel.52 Based upon the information 

received at that time, we stated that we 

believed it supported the categorical 

listing of PRRs as a non-waste fuel 

burned on-site. On the other hand, for 

PRRs transferred off-site for use as a 

fuel, we requested information 

regarding how and where they are 

burned and whether they are managed 

as a valuable commodity. We also stated 

that if information is submitted that 

supports off-site use as a fuel, the 

Agency may include those PRRs in a 

subsequent rulemaking.53

3. Scope of Proposed Categorical NonWaste Listing for PRRs 

PRRs generated during the paper 

recycling manufacturing process vary in 

composition; however, the unsuitable 

fibers portion make up the majority of 

residual material that is used as a fuel. 

Although PRRs are generated at more 

than 100 paper recycling mills, only 

between 15 to 20 mills can burn them 

as a fuel because their boilers are 

designed to burn solid fuels. The 

majority of paper recycling mills’ cannot 

burn solid fuels because their boilers are 

designed to burn natural gas, and thus, 

usually send their PRRs to landfills. 

As stated in the preceding section, 

additional data and information 

submitted to the Agency by the industry 


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54National Council for Air and Stream 

Improvement, Inc. Technical Bulletin (TB) No. 806, 

‘‘Beneficial Use of Secondary Fiber Rejects,’’ p 1. 

See attachment to AF&PA Comments to Docket, 

August 3, 2010 (document ID: EPA–HQ–RCRA– 

2008–0329–0871). 

55AF&PA Technical Bulletin, Attachment 4, 

Recycling Process Residuals, p 2. September 10, 

2009. 

56We would note that even if the NHSM does not 

meet one or more of the legitimacy criteria, the 

Agency could still propose to list a NHSM 

categorically as a non-waste fuel by balancing the 

legitimacy criteria with other relevant factors. (See 

78 FR 9156, February 7, 2013.) 57See AF&PA Comments, p 62, to Docket 

document ID: EPA–HQ–RCRA–2008–0329–0871. 

demonstrates that PRRs are not 

discarded when used as a fuel on-site or 

within the control of the generator. 

Further, this data and information 

indicates that all three legitimacy 

criteria are met. Therefore, the Agency 

is proposing to categorically list PRRs as 

a non-waste fuel for those paper 

recycling mills whose on-site boilers are 

designed to burn solid fuels. The 

rationale for this proposal is discussed 

in the sections below. 

4. Rationale for Proposed Listing 

a. Paper Recycling Process 

The level of contamination in 

recovered paper and paperboard 

products can range from minimal to 

severe depending upon its original 

manufacture, its finishing and 

converting operations, and its 

subsequent use and collection. 

Accordingly, the type, number, and 

sequence of processing equipment vary 

by mill.54 Despite the potential 

differences between mills, the paper 

recycling manufacturing process may be 

grouped generally, into three steps, for 

purposes of identifying where residuals 

are generated and, thus, when they are 

discarded or used to produce a product 

fuel. 

In the first step of the paper recycling 

manufacturing process, bales of the 

incoming feedstock enter a pulper 

where the paper and fiber are wetted 

and dispersed. A ‘‘debris rope’’ or 

‘‘ragger’’ continuously withdraws 

strings, wires, and rags that could 

otherwise damage the processing 

equipment. Recovered metals may be 

sold to metals recovery facilities, but 

other materials removed by the ragger 

are landfilled because they produce a 

heterogeneous mixture. 

In the second step of the paper 

recycling manufacturing process, 

materials that remain in the pulper can 

either pass to a junk tower for removal 

of heavy materials and continue to a 

drum screen for removal of lighter 

materials; or go directly to coarse 

screens. For those materials that go to 

the coarse screens, the resulting rejects 

may pass through an air separator and/ 

or a high efficiency cyclone, which 

further removes materials based on size, 

shape and density, such as plastic and 

unsuitable paper fibers (i.e., wet 

strength and short wood fibers), which 

make-up the largest portion of PRRs 

destined for fuel use. These PRRs may 

be consolidated with those generated 

from the junk tower and drum screen, 

and sent across a dewatering screen or 

a screw or ram press to improve both 

ease of handling and heating value. 

In the final step of the paper recycling 

manufacturing process, a series of fine 

screens remove any remaining material 

that cannot be used to make paper or 

paperboard products. These rejected 

materials include unusable paper fiber 

fines, clays, starches, waxes and 

adhesives, other filler and coating 

additives, and dyes and inks. During 

this step, reject materials may either 

pass along to the wastewater treatment 

system or become part of the PRR 

stream and used as a fuel. For example, 

reject materials that are dispersed and 

small, such as dyes and inks, waxes, 

and coating adhesives generated from 

recovered magazines and other papers, 

will not be removed by fine screens and 

therefore, enter the wastewater 

treatment system. In contrast, light 

reject material generated from recovered 

corrugated containers is captured in fine 

screens and can be used as a fuel.55

These PRRs would then be consolidated 

with the PRRs generated in the 

preceding step before being conveyed to 

the combustion source where they are 

blended with traditional fuels and fed to 

the combustor. 

Thus, PRRs are generated at various 

steps of the paper recycling 

manufacturing process, with the second 

step producing the bulk of PRRs (i.e., 

unsuitable fibers) destined for use as a 

fuel. While the discussion above 

provides an overall description of the 

paper recycling process itself, it also 

demonstrates how PRRs (and other 

residuals) are generated throughout the 

process. By virtue of the processing 

steps conducted throughout the paper 

recycling manufacturing process, PRRs 

burned as a fuel require minimal 

additional processing themselves prior 

to their use as fuel. For the most part, 

all that is required after screening is 

removal of moisture to increase the Btu 

value. Removal of moisture can range 

from simply allowing PRRs to drain 

freely (e.g., for coarse and heavy PRRs) 

to sending them through a press (e.g., 

for smaller and compressible PRRs). 

In determining whether PRRs used as 

a fuel are more product-like than wastelike, we consider the following 

attributes: 

• PRRs that are burned as a fuel are 

never discarded. 

• For paper recycling mills that can 

burn PRRs, they burn a significant 

amount of what they generate on-site: 

55%–100%. 

• PRRs are a co-product of the paper 

recycling manufacturing process and are 

used to replace traditional fuels by as 

much as 25%. 

Accordingly, PRRs are more productlike than waste-like. 

b. Legitimacy Criteria 

As discussed above, EPA considers 

whether the NHSMs meet the legitimacy 

criteria when deciding whether to list 

an NHSM categorically as a non-waste 

fuel. If the NHSM meets the legitimacy 

criteria, the Agency can list the material 

categorically as a non-waste fuel and 

those who use the material would not 

have to evaluate and document the 

regulatory status of the material on a 

case-by-case basis. The three legitimacy 

criteria to be evaluated are: (1) The 

NHSM must be managed as a valuable 

commodity; (2) the NHSM must have a 

meaningful heating value and be used as 

a fuel in a combustion unit to recover 

energy; and (3) the NHSM must have 

contaminants or groups of contaminants 

at levels comparable to or less than 

those in the traditional fuel the unit is 

designed to burn.56

i. Managed as a Valuable Commodity 

Regarding the first legitimacy 

criterion, PRRs that are utilized as a fuel 

are managed similarly to traditional 

fuels that are burned on-site at the paper 

recycling mill, such as hogged wood, 

other clean biomass, or coal. Some 

paper recycling mills store PRRs in 

containers (i.e., from the container, 

PRRs can be fed directly to the boiler) 

or convey them to a storage pile of 

traditional solid fuels where they are 

comingled prior to burning, while other 

paper recycling mills convey PRRs 

directly to the fuel feed systems. This 

demonstrates that PRRs are handled 

promptly, such that after processing, 

they are fed directly to the boiler or 

when not used immediately, they are 

managed in containers and storage piles 

along with other traditional fuels used 

on-site and thus, are managed as a 

valuable commodity. 

ii. Meaningful Heating Value and Used 

as a Fuel To Recover Energy 

With respect to the second legitimacy 

criterion, PRRs, as fired, average 3,700 

Btu/lb (or on a dry basis, averages 9,100 

Btu/lb).57 While this is lower than the 


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58 76 FR 15522. 

59 76 FR 15523. 

60For example, the industry has provided 

information indicating that: if they were to cease 

burning PRRs, replacement fuel, such as biomass or 

coal would need to be purchased at a cost of over 

$8 million and several boilers burning PRRs 

produce electricity for on-site use, displacing the 

need to purchase electricity from the local utility. 

See ‘‘Supplemental Information to Support the 

Listing of Paper Recycling Residuals (PRR) As a 

Non-waste Fuel under section 241.1’’ (December 12, 

2012). 

61See ‘‘AF&PA–AWC Responses to EPA’s 

Questions on PRR and Railroad Ties (May 2013).’’ 

62 In response to the ANPRM, commenters 

submitted data for OCC rejects, which generally 

indicated that OCC rejects would or could meet the 

contaminant criterion. 

general guideline of 5,000 Btu/lb, as 

fired,58 the Agency has previously 

stated that flexibility exists for facilities 

with energy recovery units that use 

NHSMs as fuels with an energy content 

lower than 5,000 Btu/lb, as fired. In 

such cases, a person may demonstrate a 

meaningful heating value is derived 

from the NHSM if the energy recovery 

unit can cost-effectively recover 

meaningful energy from the NHSM used 

as fuels. Factors that may be considered 

by the Agency in determining that a 

combustion unit cost-effectively 

recovers energy from NHSMs include, 

but are not limited to: whether the 

facility encounters a cost savings due to 

not having to purchase significant 

amounts of traditional fuels they 

otherwise would need; whether they 

would purchase the NHSM to use as a 

fuel; whether the NHSM can self-sustain 

combustion; and/or whether the 

operation produces energy that is sold 

for a profit.59

While some of these specific factors 

are relevant with respect to the 

combustion of PRRs,60 additional 

factors beyond those listed may also 

demonstrate that a combustion unit can 

cost-effectively recover energy. In the 

case of PRRs, we would note that the 

industry has argued that paper recycling 

mills’ boilers can cost effectively 

recover energy from PRRs, because of 

the boiler design itself. Specifically, a 

trade organization representing paper 

recycling mills has indicated that the 

mills’ solid fuel boilers are designed to 

burn wet fuels, with each mill 

optimizing its operation around boiler 

design. Typical boilers used include 

stoker fired and fluidized bed 

combustion, which often have over-fire 

and/or under-grate air that assists in the 

efficient burning of wetter fuels. This 

allows paper recycling mills to burn 

clean cellulosic biomass fuels, such as 

hog fuel and bark, which is the primary 

fuel, as well as PRRs, that have varying 

degrees of moisture content. In fact, the 

industry has argued that if the material 

being fed to the boiler is too dry, the 

combustion temperature can become too 

hot, requiring operational adjustments. 

Consistently wet materials are handled 

well in these boilers, leading to fewer 

temperature swings and minimized 

boiler tuning adjustments. They also 

argue that PRRs are analogous to the 

primary fuels—hog fuel and bark—used 

in solid fuel boilers at paper recycling 

mills in that they both have high 

moisture content, usually >40%, and 

can have Btu values below 5000 Btu/lb, 

as fired. However, PRRs can also have 

Btu values higher than 5,000 Btu/lb, 

depending upon the amount of moisture 

that has been removed (i.e., whether 

simply draining freely versus pressed), 

amount of solids, fiber content, presence 

of non-fiber packing materials, and 

combustion conditions necessary for the 

effective operation of the boilers.61

Therefore, based on all the available 

information, including the fact that 

PRRs are primarily wood fibers, the 

Agency believes that PRRs meets the 

meaningful heating value legitimacy 

criterion, and that they are burned as a 

fuel to specifically recovery energy. 

iii. Contaminants Comparable to or 

Lower Than Traditional Fuels 

For the third legitimacy criterion, we 

have conducted an expanded (i.e., 

previous rules only considered OCC 

rejects) contaminant comparison to 

capture data that is representative of all 

PRR fuel types within EPA’s Boiler 

MACT Database.62 See Table 2. 

TABLE 2—COMPARISON OF CONTAMINANTS IN PAPER RECYCLING RESIDUALS (PRRS) AND TRADITIONAL FUELS

Contaminants a Clean wood/ 

biomass 

Coal b PRRs c d

Range 

Group 1: 

Arsenic ......................................................................................................................................... ND–298 ND–174 0–17.7 

Chromium .................................................................................................................................... ND–340 ND–168 <0.17–26.9 

Lead ............................................................................................................................................. ND–340 ND–148 <0.10–21.1 

Mercury e ...................................................................................................................................... ND–1.1 ND–3.1 ND–0.0724 

Chlorine ........................................................................................................................................ ND–5400 ND–9,080 <9.8–7310 

Sulfur ............................................................................................................................................ ND–8700 740–61,300 237–2500 

Group 2: 

Antimony ...................................................................................................................................... ND–26 ND–10 0.07–0.9 

Beryllium ...................................................................................................................................... ND–10 ND–206 0.005–0.329 

Cadmium ...................................................................................................................................... ND–17 ND–19 0.03–7.1 

Cobalt ........................................................................................................................................... ND–213 ND–30 1.05–1.99 

Manganese .................................................................................................................................. ND–15,800 ND–512 <0.10–21.1 

Nickel ........................................................................................................................................... ND–540 ND–730 <0.27–25 

Selenium f ..................................................................................................................................... ND–9 ND–74.3 ND–3.29 

Fluorine g ...................................................................................................................................... ND–300 ND–178 <17–<26 

aAll units expressed in parts per million (ppm) on a dry weight basis. 

b Coal and Biomass data taken from EPA document Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 

2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm. Refer to document for footnotes and sources of the data. c December 2011 boiler database—Boiler Reconsideration Proposal Databases: Emissions Database for Boilers and Process Heaters Containing Stack Test, CEM, & Fuel Analysis Data Reported under ICR No. 2286.01 & ICR No. 2286.03 (version 7); http://epa.gov/ttn/atw/boiler/

boilerpg.html. Data presented is for paper manufacturing facilities with NAICS code #322 and where fuel type indicates it refers to the repulped 

paper fibers that are used as fuels and include: ‘‘Dewatered combustible residues,’’ ‘‘hydro pulper refuse,’’ ‘‘OCC rejects,’’ ‘‘recycle fiber lightweight rejects,’’ and ‘‘recycled fiber.’’ d CAA 112 Hazardous Air Pollutant (HAP) compounds (e.g., benzene, PAHs) data was not collected in this data set. HAP compounds may be 

present. 


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63National Council for Air and Stream 

Improvement, Inc. Technical Bulletin (TB) No. 806, 

‘‘Beneficial Use of Secondary Fiber Rejects,’’ 

Appendix B, Table B1. TCLP Analysis of OCC 

Rejects. See attachment to AF&PA Comments to 

Docket, August 3, 2010 (document ID number; 

EPA–HQ–RCRA–2008–0329–0871). 

64Section 1.2 of Method 1311 (Toxicity 

Characteristic Leaching Procedure) allows for a total 

constituent analysis in lieu of a TCLP analysis. That 

is, the Agency allows calculating a solid phase’s 

maximum theoretical concentration expected in a 

TCLP extract by dividing a sample’s total 

constituent concentration by 20, representing 20:1 

liquid-to-solid ratio (by weight) employed in the 

TCLP procedure. See http://www.epa.gov/osw/

hazard/testmethods/faq/faq_tclp.htm. While 

leaching extract concentrations do not reflect total 

constituent concentrations, multiplying the extract 

concentration (0.004 ppm) by 20 provides the 

minimum total concentration in the waste. 

However, because toluene is somewhat soluble in 

water (515 mg/L at 20° C), the leaching extract 

concentration multiplied by 20, is for this 

constituent, a reasonable approximation of the total 

toluene concentration. Water solubility data can be 

found at: http://www.epa.gov/chemfact/s_

toluen.txt. 

65Concentrations in Traditional Fuels: Tables for 

Comparison, November 29, 2011, available at 

www.epa.gov/epawaste/nonhaz/define/index.htm 

and in the docket (EPA–HQ–RCRA–2008–0329). 

66 In the 2011 final NHSM rule, the agency 

previously believed these facilities to be municipal 

or commercial incinerators (76 FR 15487). 

Subsequent comments have identified these 

facilities to be commercial biomass and 

cogeneration plants. 

67National Council for Air and Stream 

Improvement, Inc. Technical Bulletin (TB) No. 806, 

‘‘Beneficial Use of Secondary Fiber Rejects,’’ pp. 

10–11. See attachment to AF&PA Comments to 

Docket, August 3, 2010 (document ID: EPA–HQ– 

RCRA–2008–0329–0871). 

68The Agency had stated that limited information 

indicated that OCC rejects are ‘‘burned in municipal 

or commercial energy facilities (which appear to be 

municipal or commercial incinerators) and thus, 

would clearly indicate discard . . .’’ 76 FR 15487. 

eOther PRR sample results indicate mercury was non-detect at 0.1 ppm; therefore, some samples could have been between the highest recorded value of 0.0724 ppm and the non-detect limit of 0.1 ppm. fOther PRR sample results indicate that selenium was non-detect at 7 ppm; therefore, some samples could have been between the highest recorded value of 3.29 ppm and the non-detect limit of 7 ppm. gFluorine was not detected in any samples; the highest non-detect level is listed. 

We compared the contaminant 

concentrations of those constituents 

found in Table 2 in PRRs to the levels 

found in coal and biomass, since both 

of these traditional fuels can be burned 

in boilers at paper recycling mills. Data 

indicate that PRRs meet the 

contaminant legitimacy criterion. The 

only reported instance of PRRs 

containing a contaminant at levels 

approaching the highest levels in coal 

and biomass is a chlorine concentration 

at a mill burning OCC rejects. However, 

the highest reported value for chlorine 

in PRRs was 7,310 ppm, which is still 

below the highest reported value for 

chlorine in coal (9,080 ppm). Therefore, 

the contaminant concentrations for 

these contaminants are comparable to 

the traditional fuels that the boilers are 

designed to burn. 

With regard to organic HAP present in 

PRRs, there does not appear to be any 

data available on the concentration of 

these contaminants in PRRs. Limited 

data has been published, however, on 

TCLP extracts of OCC rejects that 

include several organic HAPs. With the 

exception of toluene, which was found 

at trace levels ranging from <0.001 to 

0.004 mg/L, no other HAP were detected 

in the TCLP extracts for OCC rejects.63

For purposes of comparability, a total 

constituent analysis for toluene would 

yield a concentration of up to 0.08 mg/ 

L (or 0.08 ppm), assuming worst case 

conditions, which is well below the 

concentration found in coal at 8.6–56 

ppm.64 65 Likewise, we would expect 

similar results from the broader 

universe of PRRs, since the processing 

steps that generate PRRs would be 

equivalent to or more than those that 

generate only OCC rejects (i.e., where 

the feedstock is limited to OCCs), 

resulting in potentially fewer 

contaminants. 

5. Summary and Request for Comment 

PRRs are generated from the recycling 

of recovered paper and paperboard 

products, which consists of several 

processing steps. These processing steps 

remove contaminants and sort PRRs by 

passing them through a series of screens 

and cyclones, and increase their Btu 

value in preparation for burning. This 

fuel product meets the legitimacy 

criteria as described above. Based on 

current information, the Agency 

believes that PRRs are a non-waste fuel, 

provided that such units are located onsite and the boilers that are used are 

designed to burn solid fuels. The 

Agency invites comment on this 

proposed categorical non-waste 

determination, which would 

categorically list PRRs as a non-waste 

fuel in section 241.4(a) and the 

following specific items: 

Meaningful Heating Value. We 

request comment on the meaningful 

heating value determination, as well as 

information regarding the percentages of 

non-fiber materials (e.g., polystyrene 

foam, polyethylene film, other plastics, 

waxes and adhesives, dyes and inks, 

clays, starches, and other filler and 

coating additives, etc.) that typically 

make-up PRRs. This information may be 

useful in understanding the variability 

of the PRR’s heating value, since PRRs 

that contain a larger portion of wood 

fibers could be expected to have a 

higher heating value. 

Other discarded materials. In 

addition, although the data provided in 

the boiler database regarding the level of 

contaminants in the PRRs indicates that 

they meet the contaminant legitimacy 

criterion, evaluations conducted for the 

development of the boiler database 

suggested that, in a few cases, OCC 

rejects used as fuel on-site contain other 

discarded materials. For example, some 

paper recycling mills may accept 

cardboard containers from off-site that 

have not been completely emptied of 

their contents or otherwise are 

contaminated with foreign materials. 

The Agency is interested in receiving 

information regarding how common this 

practice is, the composition of the 

contents/materials, any precautions 

taken to ensure that the contents/

materials do not contribute to 

unacceptable contaminant 

concentrations, and whether any 

additional conditions should be 

imposed to ensure that such cardboard 

containers have been emptied. In other 

words, any remaining contents/

materials should only be incidental. 

PRRs burned off-site. Finally, the 

Agency is considering whether to 

expand the categorical listing to include 

PRRs that are burned as a fuel product 

off-site (i.e., in cases where the 

generating mill does not have a boiler 

designed to burn solid fuels) at other 

paper recycling mills and commercial 

power plants. According to earlier 

comments submitted on subsequent 

NHSM rulemakings, OCC rejects have 

been used as a supplemental fuel in two 

plants: A commercial biomass 

gasification plant and a commercial 

cogeneration plant (where OCC rejects 

provide 3 to 4 percent of the total fuel 

input at the latter plant).66 An 

intermediary company takes the OCC 

rejects from three mills and processes 

them by removing large pieces of 

plastic, shredding, and drying the 

remaining residuals and delivers the 

OCC reject fuel to the plants.67 Thus, 

contrary to what the Agency previously 

concluded based on the information it 

had at the time of the March 2011 final 

rule,68 it now appears that the OCC 

rejects burned off-site in commercial 

power plants can be managed more like 

a non-waste fuel than a waste fuel. 

While the information we have 

generally indicates that these PRRs are 

managed much the same way as those 


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69As noted previously, the categorical listing of 

CTRTs does not include other creosote-treated 

wood. The Agency is currently evaluating these 

NHSMs, based on the petition submitted by the 

Treated Wood Council included in the docket for 

today’s rule. 

70AWPA Standard P1/P13 and P2 provide 

specifications for coal-tar creosote used for 

preservative treatment of piles, poles and timber for 

marine, land and freshwater use. The character of 

the tar used, the method of distillation, and the 

temperature range in which the creosote fraction is 

collected all influence the composition of the 

creosote, and the composition may vary with the 

requirement of standard specifications. April 2010. 

Forest Products Laboratory. 2010 Wood Handbook. 

General Technical Report FPL_GTR–190. Madison, 

WI. 

71American Forest & Paper Association, 

American Wood Council—Letter to EPA 

Administrator, December 6, 2012. 

72 In some cases, the reclamation company sells 

the crossties to a separate company for processing. 

73American Forest & Paper Association, 

American Wood Council—Letter to EPA 

Administrator, December 6, 2012. 

74M.A. Energy Resources LLC, Petition submitted 

to Administrator, EPA. February 2013. 

75American Forest & Paper Association, 

American Wood Council—Letter to EPA 

Administrator, December 6, 2012. 

burned on-site, it is based on only two 

cases and lacks sufficient detail to 

determine that PRRs when sent off-site 

for energy recovery continue to meet the 

legitimacy criteria and are not 

discarded. Therefore, we request 

additional information for PRRs that are 

burned off-site which demonstrates how 

they: (1) Are managed as a valuable 

commodity (from point of generation at 

the paper recycling mill to insertion at 

the off-site combustor, to clearly show 

that discard is not occurring); (2) have 

a meaningful heating value; (3) contain 

contaminants at levels comparable to or 

lower than those in traditional fuel(s) 

which the combustor is designed to 

burn; and (4) the types of facilities that 

combust these PRRs. 

C. Creosote-Treated Railroad Ties 

(CTRTs) 69

1. Detailed Description of CTRTs 

Railroad ties are typically comprised 

of North American hardwoods that have 

been treated with creosote. Creosote was 

introduced as a wood preservative in 

the late 1800’s to prolong the life of 

railroad ties. Creosote-treated wood ties 

remain the material of choice by 

railroads due to their long life, 

durability, cost effectiveness, and 

sustainability. As creosote is a byproduct of coal tar distillation, and coal 

tar is a by-product of making coke from 

coal, creosote is considered a derivative 

of coal. The creosote component of 

CTRTs is also governed by the standards 

established by the American Wood 

Protection Association (AWPA). AWPA 

has established two blends of creosote, 

P1/13 and P2.70 Railroad ties are 

typically manufactured using the P2 

blend that is more viscous than other 

blends. 

Under today’s proposed rule, CTRTs 

are railroad crossties removed from 

service and processed prior to being 

used as a fuel. Approximately 17 

million crossties are removed from 

service each year. About one third of the 

removed CTRTs are used for 

landscaping, with the majority of the 

remaining two thirds used for energy 

recovery. Because of its high energy 

content, CTRTs can be used for heat and 

energy recovery in combustion units as 

a nonhazardous biomass alternative to 

fossil fuel.71

Most of the energy recovery with 

crossties is conducted through three 

parties: The generator of the crossties 

(railroad or utility); the reclamation 

company that sorts the crossties, and in 

some cases processes the material 

received from the generator; 72 and the 

combustor as third party energy 

producers. Typically, ownership of the 

crossties are generally transferred 

directly from the generator to the 

reclamation company that sorts 

materials for highest value secondary 

uses, and then sells the products to endusers, including those combusting the 

material as fuel. Some reclamation 

companies sell CTRTs to processors 

who remove metal contaminants and 

grind the ties into chipped wood. Other 

reclamation companies have their own 

grinders, do their own contaminant 

removal, and can sell directly to the 

combusting facilities. Information 

submitted to the Agency indicates there 

are approximately 15 CTRT recovery 

companies in North America with 

industry wide revenues of $65–75 

million. Members of AF&PA report that 

the value of CTRTs is underscored by 

the approximately $20—$30 per ton 

paid for CTRTs which can sometimes be 

a premium price compared to certain 

hog fuels (untreated clean wood 

residues from sawmills).73

After crossties are removed from 

service, they are transferred for sorting/ 

processing, but in some cases, they may 

be temporarily stored in the railroad 

rights-of-way or at another location 

selected by the reclamation company. 

One information source indicated that 

when the crossties are temporarily 

stored, they are stored until their value 

as an alternative fuel can be realized, 

generally through a contract completed 

for transferal of ownership to the 

reclamation contractor or combustor.74

This means that not all CTRTs originate 

from crossties removed from service in 

the same year; some CTRTs are 

processed from crossties removed from 

service in prior years and stored by 

railroads or removal/reclamation 

companies until their value as a 

landscaping element or fuel could be 

realized. 

Typically, reclamation companies 

receive CTRTs by rail. The processing of 

the crossties into fuel by the 

reclamation/processing companies 

involves several steps. Metals (spikes, 

nails, plates, etc.) are removed using a 

magnet. Metal removal may occur 

several times during the process. The 

crossties are then ground or shredded to 

a specified size depending on the 

particular needs of the end-use 

combustor, with chip size typically 

between 1–2 inches. This step may 

occur in several phases, including 

primary and secondary grinding, or in a 

single phase. Once the crossties are 

ground to a specific size, additional 

metal may be removed and there is 

further screening based on the particular 

needs of the end-use combustor. 

Depending on the configuration of the 

facility and equipment, screening may 

occur concurrently with grinding or at 

a subsequent stage. Throughout the 

process, a surfactant is applied to the 

crossties being processed to minimize 

dust. 

Once the processing of CTRTs is 

complete, the CTRTs are sold directly to 

the end-use combustor for energy 

recovery. Processed CTRTs are 

delivered to the buyers by railcar or 

truck. The CTRTs are then stockpiled 

prior to combustion, with a typical 

storage timeframe ranging from a day to 

a week. When the CTRTs are to be 

burned for energy recovery, the material 

is then transferred from the storage 

location using a conveyor belt or frontend loader. The CTRTs may be 

combined with other biomass fuels, 

including hog fuel and bark. CTRTs are 

commonly used to provide the high 

BTU fuel to supplement low (and 

sometimes wet) BTU biomass to ensure 

proper combustion, often in lieu of coal 

or other fossil fuels.75 The combined 

fuel may be further hammered and 

screened prior to combustion. 

In general, contracts for the purchase 

and combustion of CTRTs include fuel 

specifications limiting contaminants, 

such as metal and precluding the receipt 

of wood treated with preservatives other 

than creosote. 

2. CTRTs Under Current NHSM Rules 

a. March 2011 NHSM Final Rule 

The March 2011 NHSM final rule 

indicated that even though most 

creosote-treated wood is non-hazardous, 

the presence of hexachlorobenzene, a 


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76 76 FR 15483. 

77American Forest & Paper Association, 

American Wood Council—Letter to EPA 

Administrator, December 6, 2012. 

78 Information received subsequent to the request 

for data in the February 13, 2013 rule discussed 

above claims that 14 entities in the utility sector 

could burn (i.e. are permitted to burn) or are 

burning cross-tie derived fuel (i.e. CTRT). Of the 14 

entities, 9 companies are currently firing or have 

fired CTRT within the past two years. Information 

on pulp and paper and utility sources currently 

utilizing CTRT indicates that several of these 

sources use between 5,000 and 70,000 tons of CTRT 

per year. Information compiled by M.A. Energy 

LLC. (MAER) contained in letters and emails from 

All4 Inc. to EPA dated January 29, and February 28, 

2014. 

79American Forest and Paper Association and 

American Wood Council’s letter to George Faison, 

EPA. March 7, 2013. 

80Petition for Determination Identifying NonHazardous Secondary Treated Wood Biomass as a 

Non-Waste under 40 CFR 241.4(a). Treated Wood 

Council April 2013. 

81To the extent that any of these boilers burn fuel 

derived from waste, or any other solid waste, they 

would be subject to the CAA Section 129 CISWI 

standards, and the Agency’s proposal today would 

not impact their regulatory status. 

82American Forest and Paper Association and 

American Wood Council’s letter to George Faison, 

EPA. March 7, 2013. 

83Examples of combustors utilizing a variety of 

traditional and other fuels, including facilities 

combusting both CTRT and fuel oil, is found in 

documentation provided by the American 

Associations of Railroads (AAR). The document 

listed 11 non- pulp and paper facilities including 

power generators. All of the facilities listed combust 

CTRT, three facilities combust CTRT and fuel oil, 

three facilities combust CTRT and natural gas. 

Other fuels combusted include tire-derived fuel, 

and landfill gas. February 2013. 

84See 78 FR 9149 

CAA 112 HAP, as well as other HAP 

suggested that creosote-treated wood, 

including CTRTs contained 

contaminants at levels that were not 

comparable to or lower than those found 

in wood or coal, the fuel that creosotetreated wood would replace. In making 

the assessment at that time, the Agency 

did not consider fuel oil as a traditional 

fuel that CTRTs would replace. Thus, 

the data provided at that time indicated 

that combustion of creosote-treated 

wood may result in destruction of 

contaminants contained in those 

materials, which is an indication of 

incineration, a waste activity. 

Accordingly, creosote-treated wood, 

including CTRTs when burned, seemed 

more like a waste than a commodity, 

and did not appear to meet the 

contaminant legitimacy criterion.76 This 

material, therefore, was considered a 

solid waste when burned and units 

combusting it would be subject to the 

section 129 CAA emission standards. 

The conclusions from the March 2011 

rule regarding creosote-treated wood are 

discussed further in Section V.C.4 

(Rationale for Proposed Listing) below. 

b. February 2013 NHSM Final Rule 

In the February, 2013 NHSM final 

rule, EPA noted that AF&PA and the 

American Wood Council submitted a 

letter with supporting information on 

December 6, 2012, seeking a categorical 

listing for all railroad ties combusted in 

any unit.77 The letter included 

information regarding the amounts of 

railroad ties combusted each year and 

the value of the ties as fuel. The letter 

also discussed how CTRTs satisfy the 

legitimacy criteria, including its high 

Btu value. 

While this information was useful, it 

was not sufficient for EPA to propose 

that CTRTs be listed categorically as a 

non-waste fuel. Therefore, to further 

inform the Agency as to whether to list 

CTRTs categorically as a non-waste fuel, 

EPA requested that additional 

information be provided, and indicated 

that if this additional information 

supported and supplemented the 

representations made in the December 

2012 letter, EPA would expect to 

propose a categorical listing for CTRTs. 

The requested information and 

responses provided are as follows: 

• A list of industry sectors, in 

addition to forest product mills, that 

burn railroad ties for energy recovery: 

One respondent claimed that a number 

of end-use combustors utilize CTRTs as 

an alternative fuel to offset fossil fuel at 

all times. Such facilities use as much as 

100–500 tons of CTRTs daily. The 

respondent also claimed to know of 

additional end-use combustors that 

utilize CTRTs occasionally based on 

availability and cost. Furthermore, the 

respondent was aware of other end-use 

combustors that are operationally able 

to utilize CTRTs as an alternative fuel to 

offset fossil fuel, but have chosen not to 

use CTRTs as a result of the current 

solid-waste implications associated with 

CTRTs. The end-use combustors that 

currently utilize CTRTs, both full-time 

and part-time, represent a variety of 

industry sectors, including pulp and 

paper manufacturing, cogeneration 

plants, utilities, and chemical 

manufacturing facilities. For the utility 

sector, at least 14 utilities could burn 

(i.e. are permitted to burn) or are 

burning CTRT.78 Another respondent 

claimed that data 79 show that a number 

of forest product mills are currently 

using railroad ties as a fuel and that 

other mills are permitted to burn these 

materials as fuels, but have stopped 

using them as a fuel due to their 

uncertain regulatory status, as well as 

other economic factors (e.g. lower cost 

of other fuels). 

• The types of boilers (e.g., kilns, 

stoker boilers, circulating fluidized bed, 

etc.) that burn railroad ties for energy 

recovery: Respondents stated that the 

types of units operated by those end-use 

combustors that utilize CTRTs as an 

alternative fuel include fluidized bed, 

traveling grate, and spreader stoker. 

Forest product industry boilers that 

used to burn railroad ties are generally 

one of three types: stoker, bubbling bed 

or fluidized bed boilers. In addition, 

cement kilns have combusted CTRTs.80

• The traditional fuels and relative 

amounts (e.g., startup, 30%, 100%) of 

these traditional fuels that could 

otherwise generally be burned in these 

types of units: 

Respondents also claim that units 

operated by end-use combustors that 

utilize CTRTs as an alternative fuel 

typically burn a variety of ‘‘traditional 

fuels,’’ such as coal, biomass (i.e., hog 

fuel, bark fuel, and other biomass fuel 

materials), and fuel oil, as well as other 

materials and wastes, such as tire 

derived fuel, waste derived liquid fuel, 

and waste derived solid fuel.81 82 In 

general, they claim that all of the units 

that burn CTRTs also burn significant 

quantities of biomass given the 

similarity of the fuels’ characteristics. In 

addition, they claim that most of these 

units are permitted to burn fuel oil 

either during start-up or during normal 

operations. The respondents claim that 

many factors determine how much fuel 

oil is burned. For example, because 

natural gas prices are low, natural gas is 

often the fuel of choice, if available. In 

addition, they claim that some states are 

looking to reduce SO2 emissions from 

sources and thus, encourage greater use 

of biomass or natural gas rather than 

fuel oil.83

Respondents claim that the most 

comparable traditional fuel to railroad 

ties is fuel oil. However, they believe 

the question of whether a combustion 

unit is designed to burn a specific fuel 

is not relevant when EPA makes a 

determination under section 241.4(a). 

Specifically, the respondents claim that 

the EPA has interpreted the phrase 

‘‘designed to burn’’ to mean that a 

combustor that burns NHSMs as a nonwaste fuel has to be able to burn the 

NHSM in the combustion unit, which in 

the case of CTRTs, would require the 

installation of a nozzle for the delivery 

of liquid fuel into the boiler, to meet the 

contaminant legitimacy criterion EPA 

explained that this standard is to avoid 

the possibility that discard could be 

occurring in some situations.84

However, in the context of a specific 

non-waste determination under section 

241.4(a), the respondents argue that EPA 

has the opportunity to evaluate all the 


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85The Agency requested these analyses based on 

the limited information previously available 

concerning the chemical makeup of CTRTs. That 

limited information included one well-studied 

sample from 1990 (which indicated the presence of 

both PAHs and dibenzofuran), past TCLP results 

(which indicated the presence of cresols, 

hexachlorobenzene and 2,4-dinitrotoluene), 

Material Safety Data Sheets for coal tar creosote 

(which indicated the potential presence of biphenyl 

and quinoline), and the absence of dioxin analyses 

prior to combustion despite extensive dioxin 

analyses of post-combustion emissions. 

86AF&PA Ibid. 

87M.A. Energy Resources, LLC 40 CFR Part 241, 

Subpart B—Crosstie Derived Fuel. February, 2013. 

88Letter from Jeffrey Miller, Treated Wood 

Council to Lisa Feldt. December 17, 2012. 

89Evaluation of Used Railroad Ties Treated with 

Creosote for Polynuclear Organic Material which 

includes Polynuclear Aromatic Hydrocarbons. 

January 2013. URS Corporation on behalf of 

American Association of Railroads. 

90Fuel oils means fuel oils 1–6, including 

distillate, residual, kerosene, diesel, and other 

petroleum based oils. It does not include gasoline 

or unrefined crude oil. 

91As discussed in the NHSM final rule (76 FR 

15520), ‘‘reasonable time frame’’ is not specifically 

defined as such time frames vary among the large 

number of non-hazardous secondary materials and 

industries involved. 

factors relating to the use of CTRTs as 

a fuel, including the fact that CTRTs is 

a commodity that is purchased by the 

combustor. Furthermore, respondents 

argue that EPA has the discretion to 

recognize that when a combustor 

purchases CTRTs and then burns it in 

a boiler, that combustion is for the 

purpose of generating energy rather than 

discarding the railroad ties. According 

to the respondents, any other 

conclusion would lead to the absurd 

result that one boiler can burn CTRTs as 

a legitimate fuel and another boiler— 

with essentially the same design except 

for a nozzle feed for fuel oil—would 

have to consider the CTRTs as a solid 

waste. (The Agency’s response to this 

comment is discussed in Section V.C.4 

Rationale for Proposed Listing.) 

• The extent to which non-industrial 

boilers (e.g. commercial or residential 

boilers) burn CTRTs for energy recovery: 

The respondent understands that the 

residential use of CTRTs for purposes of 

energy recovery is unlikely. However, 

they explained that several local 

utilities in the northern Midwest utilize 

CTRTs for purposes of power generation 

but they have not identified the specific 

facilities. 

• Laboratory analyses for 

contaminants known or reasonably 

suspected to be present in creosotetreated railroad ties, and contaminants 

known to be significant components of 

creosote, specifically polycyclic 

aromatic hydrocarbons (i.e., PAH–16), 

dibenzofuran, cresols, 

hexachlorobenzene, 2,4-dinitrotoluene, 

biphenyl, quinoline, and dioxins: 85

Respondents submitted contaminant 

data for crushed CTRTs, which are 

discussed in Section V.C.4 (Rationale 

for Proposed Listing) below. With the 

exception of dioxins, which 

respondents explain will not be present 

in CTRTs, analyses were submitted for 

all requested constituents and many 

other contaminants. 

3. Scope of Proposed Categorical Listing 

for CTRTs 

As discussed above, AF&PA and the 

American Wood Council submitted a 

letter and supporting information to 

EPA on December 6, 2012, seeking a 

categorical listing for CTRTs.86

Information also has been provided by 

M.A. Energy Resources, LLC87 and the 

Treated Wood Council regarding crosstie derived fuel.88 In addition, 

information on contaminant levels 

found in CTRTs has been provided by 

the Association of American 

Railroads.89 Based on the additional 

data and information submitted to the 

Agency, contaminant levels found in 

CTRTs may not be materially different 

from fuel oil and biomass that these 

facilities are designed to burn as a fuel. 

Therefore, the Agency is proposing to 

list, categorically, processed CTRTs 

when used as a fuel in combustion units 

designed to burn both biomass and fuel 

oil.90 The rationale for this proposal is 

discussed in detail in the sections 

below. 

4. Rationale for Proposed Listing 

a. Discard 

When deciding whether an NHSM 

should be listed as a categorical nonwaste fuel in accordance with section 

241.(4)(b)(5), EPA first evaluates 

whether or not the NHSM has been 

discarded, and if not discarded, whether 

or not the material is legitimately used 

as a product fuel in a combustion unit. 

If the material has been discarded, EPA 

evaluates the NHSM as to whether it has 

been sufficiently processed into a 

material that is legitimately used as a 

product fuel. 

As discussed above, crossties 

removed from service are sometimes 

temporarily stored in the railroad rightof-way or at another location selected by 

the reclamation company. This means 

that not all CTRTs originate from 

crossties removed from service in the 

same year; some CTRTs are processed 

from crossties removed from service in 

prior years and stored by railroads or 

removal/reclamation companies until a 

contract for reclamation is in place. 

The December 6, 2012, letter from 

AF&PA states that in those cases where 

the railroad or reclamation company 

wait for more than a year to realize the 

value of the CTRTs as a fuel (or in 

landscaping), it does not mean or 

indicate that the CTRTs have been 

discarded and cite 76 FR 15456, 15520 

of the March 2011 rule. That section of 

the rule addresses the management of 

the NHSM as a valuable commodity and 

states that storage of the NHSM must be 

within a reasonable timeframe.91 The 

December 6 letter claims that a robust 

market for companies engaged in 

railroad tie reclamation, and the cost of 

this material indicates that the material 

is a valuable commodity and has not 

been discarded. 

While the Agency recognizes that the 

reasonable timeframe for storage may 

vary by industry, the Agency does not 

believe that any explanation (other than 

a repeat of what the rules say) has been 

provided of why storage that may be 

longer than a year is not discard, 

especially when they argue that CTRTs 

are a valuable material. Put another 

way, if the CTRTs have such value as a 

fuel or landscaping material, then why 

aren’t they processed and used as a fuel 

or landscaping material in a relatively 

short period of time? Therefore, without 

further explanation or information from 

the public, the Agency concludes that 

CTRTs removed from service and stored 

in a railroad right of way or other 

location for long periods of time—that 

is, a year or longer, without a 

determination regarding their final end 

use (e.g. landscaping, as a fuel or land 

filled) indicates that the material has 

been discarded and is a solid waste (see 

the preamble discussion of discard 76 

FR 15463 in the March 2011 rule). 

Regarding the assertion that the CTRTs 

are a valuable commodity in a robust 

market, the Agency would like to 

remind persons that NHSMs may have 

value in the marketplace and still be 

considered solid wastes. 

Since the railroad ties removed from 

service are considered discarded 

because they can be stored for long 

periods of time without a final 

determination regarding their final end 

use, in order for them to be considered 

a non-waste fuel, they must be 

processed, thus transforming the 

railroad ties into a product fuel that 

meets the legitimacy criteria, or if not 

meeting the legitimacy criteria, would 

still be considered a non-waste fuel in 

balancing the legitimacy criteria with 

other relevant factors. The Agency 

concludes that the processing of CTRTs 

described above in section C.1. meets 

the definition of processing in 40 CFR 

241.2. As discussed in Section V.A, 

processing includes operations that 

transform discarded NHSM into a nonVerDate Mar<15>2010 18:24 Apr 11, 2014 Jkt 232001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\14APP3.SGM 14APP3

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92We note that even if the NHSM does not meet 

one or more of the legitimacy criteria, the Agency 

could still propose to list an NHSM categorically by 

balancing the legitimacy criteria with other relevant 

factors. 

93Prior to the CTRTs being processed as a 

product fuel, the CTRTs are considered solid wastes 

and would be subject to appropriate federal, state, 

and local requirements. 

94Fuel analysis data for unadulterated time. 

USEPA, Office of Air Quality Planning and 

Standards, Emissions Data for Boilers and Process 

Heaters Containing Stack Test, CEM & Fuel 

Analysis Data Reported Under ICR No.2286.03 

(Version 6) EPA Docket Number EPA–HQ–OAR– 

2002–0058–3255. February 2011. 

95See 76 FR 15541. 

waste fuel or non-waste ingredient, 

including operations necessary to: 

remove or destroy contaminants; 

significantly improve the fuel 

characteristics (e.g., sizing or drying of 

the material, in combination with other 

operations); chemically improve the asfired energy content; or improve the 

ingredient characteristics. Minimal 

operations that result only in modifying 

the size of the material by shredding do 

not constitute processing for the 

purposes of the definition. Specifically, 

the Agency concludes that CTRTs meet 

the definition of processing in 40 CFR 

241.3 because: 

• Contaminants (spikes, nails, plates, 

etc.) are removed using a magnet. This 

magnetic removal of metals may occur 

several times during processing. 

• The fuel characteristics of the 

material are improved when the 

crossties are ground or shredded to a 

specified size depending on the 

particular needs of the end-use 

combustor. The grinding may occur in 

one or more phases. Once the CTRTs are 

ground, there may be additional 

screening to bring the material to a 

specified size. 

b. Legitimacy Criteria 

As discussed above, EPA can list a 

discarded NHSM categorically as a nonwaste fuel if it has been ‘‘sufficiently 

processed,’’ and meets the legitimacy 

criteria. If the Agency were to list such 

NHSM categorically as a non-waste fuel, 

those who use the material would not 

have to evaluate and document the 

regulatory status of the material on a 

case-by-case basis. The three legitimacy 

criteria to be evaluated are: (1) The 

NHSM must be managed as a valuable 

commodity, (2) the NHSM must have a 

meaningful heating value and be used as 

a fuel in a combustion unit to recover 

energy, and (3) the NHSM must have 

contaminants or groups of contaminants 

at levels comparable to or less than 

those in the traditional fuel the unit is 

designed to burn.92

i. Managed as a Valuable Commodity 

The processing of CTRTs is correlated 

to the particular needs of the end-use 

combustor. Additional screening may 

take place after the grinding and 

shredding of the CTRTs if deemed 

necessary. Once the CTRTs meet the 

end use specification, they are then sold 

directly to the end-use combustor for 

energy recovery. CTRTs are delivered to 

the end-use combustors via railcar and/ 

or truck similar to how traditional 

biomass fuels are delivered. While 

awaiting combustion at the end-user, 

which usually takes place within a week 

of arrival, the CTRTs are transferred 

and/or handled from storage in a 

manner consistent with the transfer and 

handling of biomass fuels. Such 

procedures typically include screening 

by the end-use combustor, combining 

with biomass fuels, and transferring to 

the combustor via conveyor belt or 

front-end loader. Since processed 

CTRTs storage does not exceed 

reasonable time frames and are handled/ 

treated similar to analogous biomass 

fuels by end-use combustors, CTRTs 

meets the criterion for being managed as 

a valuable commodity.93

ii. Meaningful Heating Value and Used 

as Fuel To Recover Energy 

EPA received recent information that 

the heating value of processed CTRTs 

ranges from 6,000–8,000 Btu/lb as fired, 

and that combustion units recover 

energy by burning the material as fuel. 

Information compiled by EPA in 2011 

indicates that CTRTs could replace 

clean wood that has an average as-fired 

heating value of 5,150 Btu/lb, with a 

low as-fired heating value of 3,440 Btu/ 

lb.94 In the March 2011 NHSM final 

rule, the Agency indicated that NHSMs 

with an energy value greater than 5,000 

Btu/lb, as fired, are considered to have 

a meaningful heating value.95 Thus, 

CTRTs have greater heating value than 

much of the traditional fuel it replaces 

and, therefore, meets the criterion for 

meaningful heating value and used as a 

fuel to recover energy. 

iii. Contaminants Comparable to or 

Lower than Traditional Fuels 

Data on contaminant comparisons. 

For CTRTs, EPA has compared the 

additional data submitted on 

contaminant levels by petitioners to 

analogous data for two traditional fuels: 

biomass (including untreated clean 

wood) and fuel oil. As noted above, the 

data EPA received on CTRTs comes 

from the following three sources: M.A. 

Energy Resources (MAER), URS 

Corporation on behalf of the Association 

of American Railroads, and AF&PA. The 

information submitted by MAER 

included a comprehensive analysis of 

one CTRT sample. The sample came 

from a CTRT pile located at an end-use 

combustor. The URS Corporation report 

included three samples of processed 

CTRT from the National Salvage facility 

in Selma, Alabama, and from a Stella 

Jones facility in Duluth, Minnesota. 

AF&PA submitted documents 

comparing contaminant concentrations 

in CTRTs with traditional fuels. AF&PA 

compiled data from various sources in 

these documents. EPA considers data 

from these eight facilities to be 

representative of the CTRT universe 

because the composition of the creosote 

component of the CTRTs is the same– 

that is, the P2 blend of creosote, as well 

as the fact that multiple samples have 

been taken in different parts of the 

country at different points in the CTRT 

management chain. Table 3 lists the 

aggregated CTRT data received as it 

compares to contaminants found in two 

traditional fuels that petitioners claim 

are used, in varying amounts, at 

facilities burning processed CTRTs for 

energy recovery. 

TABLE 3—CONTAMINANT RANGES IN TRADITIONAL FUELS AND CTRT 

[In parts per million] 

Contaminant Biomass a Fuel Oil a CTRTb

Metal Elements: 

Antimony (Sb) ....................................................................................................................... ND–26 ND–15.7 ND 

Arsenic (As) .......................................................................................................................... ND–298 ND–13 ND–3.2 

ND 

Beryllium (Be) ....................................................................................................................... ND–10 ND–19 ND–0.3 

Cadmium (Cd) ...................................................................................................................... ND–17 ND–1.4 ND–0.3 


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96We note that contaminant data received also 

compared coal to CTRTs as the traditional fuel for 

comparison. Like biomass, CTRT contaminant 

concentration levels for SVOCs exceeded those in 

coal, but were comparable to levels in fuel oil. 

Likewise, contaminant levels for nitrogen and 

fluorine in CTRTs were comparable to those in coal, 

but exceeded those in fuel oil. Thus, units designed 

to burn both biomass and fuel oil may, in addition, 

burn coal if the unit is also designed to burn that 

material. 

97We note that for several SVOCs—cresols, 

hexachlorobenzene, and 2,4-dinitrotoluene, which 

were expected to be in creosote, and for which 

information was specifically requested in the 

February 7, 2013 NHSM final rule (78 FR 9111), the 

data indicate that they were not detectable, or were 

present at levels so low to be considered 

comparable. 

TABLE 3—CONTAMINANT RANGES IN TRADITIONAL FUELS AND CTRT—Continued 

[In parts per million] 

Contaminant Biomass a Fuel Oil a CTRTb

Chromium (Cr) ...................................................................................................................... ND–340 ND–37 ND–15.3 

Cobalt (Co) ........................................................................................................................... ND–213 ND–8.5 ND 

Lead (Pb) .............................................................................................................................. ND–340 ND–56.8 ND–9.6 

Manganese (Mn) .................................................................................................................. ND–15,800 ND–3,200 63–185 

Mercury (Hg) ......................................................................................................................... ND–1.1 ND–0.2 0.02–0.05 

Nickel (Ni) ............................................................................................................................. ND–540 ND–270 ND–38 

Selenium (Se) ....................................................................................................................... ND–9 ND–4 ND–1 

Non-Metal 

Chlorine (Cl) ......................................................................................................................... ND–5,400 ND–1,260 22–400 

Fluorine (F) ........................................................................................................................... ND–300 ND–14 100 

Nitrogen (N) .......................................................................................................................... 200–39,500 42–8,950 1,600–14,400 

Sulfur (S) .............................................................................................................................. ND–8,700 ND–57,000 681–3,277 

Volatile Organic 

Benzene ................................................................................................................................ ND–75 ND 

Phenol ................................................................................................................................... ND–7,700 ND 

Styrene ................................................................................................................................. ND–320 ND 

Toluene ................................................................................................................................. ND–380 ND 

Xylenes ................................................................................................................................. ND–3,100 0.325 

Cumene ................................................................................................................................ 6,000–8,600 ND 

Ethyl benzene ....................................................................................................................... 22–1270 0.058 

Formaldehyde ....................................................................................................................... 1.6–27 ND 

Hexane ................................................................................................................................. 50–10,000 ND 

15 Additional VOC ................................................................................................................ ND 

Total VOC c .................................................................................................................... 1.6–27 6,072–19,810 0.383 

Semivolatile: 

Biphenyl ................................................................................................................................ 1,000–1,200 137–330 

16-PAH d ............................................................................................................................... 3,900–54,700 6641–21,053 

Dibenzofuran ........................................................................................................................ 570–1,500 

Quinoline ............................................................................................................................... 40.2 

Cresols .................................................................................................................................. 1.51 

Hexachlorobenzene .............................................................................................................. ND ND 

2,4-dinitrotoluene .................................................................................................................. ND ND 

Lindane ................................................................................................................................. 0.238 

11 Additional ......................................................................................................................... ND 

Total SVOC c ................................................................................................................. 4,900–54,700 7,618–22,883 

a ‘‘Contaminant Concentrations in Traditional Fuels: Tables for Comparison’’ document available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality 

Planning and Standards (OAQPS). b (1) MA Energy Resources, LLC. February 2013 Crosstie Derived Fuel Petition; (2) URS, Evaluation of Used Railroad Ties Treated with Creosote. Prepared for Association of American Railroads. January 28, 2013; (3) AF&PA, Comparison of Contaminant Concentrations in Crosstie Derived Fuel with Traditional Fuels. February 28, 2013. cTotal VOC and SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because

minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample. d 16–PAH includes: acenaphthene, acenaphthylene, anthracene, benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, 

benzo(g,h,i)perylene, benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene, fluoranthene, fluorene, indeno(1,2,3-cd)pyrene, naphthalene, phenanthrene, and pyrene. 

As shown in Table 3, all contaminant 

concentration levels for metals are 

within the ranges identified for fuel oil 

and biomass. We note that when 

comparing the non-metal elemental 

contaminants, however, fluorine and 

nitrogen levels in CTRTs are not 

comparable to fuel oil, and semi-volatile 

organic compound (SVOC) levels are 

not comparable to biomass. Given that 

CTRTs are a type of treated wood 

biomass, and any unit burning CTRTs 

typically burns untreated wood, EPA 

considered three scenarios that 

petitioners described.96

In the first scenario, where a 

combustion unit is designed to only 

burn biomass, EPA compared 

contaminant levels in CTRT to 

contaminant levels in biomass. In this 

scenario, the total SVOC levels can 

reach 22,883 ppm, driven by high levels 

of polycyclic aromatic hydrocarbons 

(PAHs) and, to a lesser extent, the levels 

of dibenzofuran and biphenyl.97 These 

compounds are largely nonexistent in 

clean wood and biomass, and the 

contaminants are therefore not 

comparable in this instance. In fact, they 

are present at orders of magnitude 

higher than found in clean wood and 

biomass. 

In the second scenario, where a 

combustion unit is designed to burn 

various solid fuels, EPA compared 


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98American Forest and Paper Association and 

American Wood Council’s letter to George Faison, 

EPA. March 7, 2013. 

99American Forest and Paper Association and 

American Wood Council’s letter to George Faison, 

EPA. March 7, 2013. 

100E.O. 12866 meeting between Office of 

Management and Budget and American Forest and 

Paper Association—September 20, 2013. Meeting 

between American Forest and Paper Association 

and Mathy Stanislaus, December 19, 2013. 

Handouts from the meeting can be found in the 

docket for today’s rule. 

101Section 112(a)(1) of the CAA defines the term 

‘‘major source’’ to mean any stationary source or 

group of stationary sources located within a 

contiguous area that emit or have the potential to 

emit in the aggregate, 10 tons per year or more of 

any hazardous air pollutant or 25 tons per year or 

more of any combination of hazardous air 

pollutants. 

102American Forest and Paper Association and 

American Wood Council—Letter to George Faison, 

EPA March 7, 2013. 

contaminant levels in CTRTs to both 

coal and biomass (see footnote 23). 

Again, however, total SVOCs would not 

be comparable, and in fact, would be 

present at orders of magnitude higher 

than found in biomass i.e. up to 22,883 

ppm in CTRTs. 

In the third scenario, a combustion 

unit is designed to burn biomass and 

fuel oil. As previously mentioned, 

fluorine, and nitrogen levels in CTRTs 

are present at elevated levels when 

compared to fuel oil. However, the 

highest levels of fluorine (100 ppm) and 

nitrogen (14,400 ppm) are comparable 

to, or well within the levels of these 

contaminants in biomass. Likewise, 

SVOCs are present in CTRTs (up to 

22,883 ppm) at levels well within the 

range observed in fuel oil (up to 54,700 

ppm). Accordingly, contaminant 

concentration levels for fluorine, 

nitrogen, and SVOCs are within the 

ranges identified for either biomass or 

fuel oil. Therefore, CTRTs have 

comparable contaminant levels to other 

fuels combusted in units designed to 

burn both biomass and fuel oil, and as 

such, meet this criterion. 

As stated in the preamble to the 

February 7, 2013, NHSM final rule, EPA 

believes that combustors may burn 

NHSMs as a product fuel if they 

compare appropriately to any traditional 

fuel the unit can or does burn. (78 FR 

9149) Combustion units are often 

designed to burn multiple traditional 

fuels, and some units can and do rely on 

different fuel types at different times 

based on availability of fuel supplies, 

market conditions, power demands, and 

other factors. Under these 

circumstances, it would be arbitrary to 

restrict the combustion for energy 

recovery of NHSMs based on 

contaminant comparison to only one 

traditional fuel if the unit could burn a 

second traditional fuel chosen due to 

such changes in fuel supplies, market 

conditions, power demands or other 

factors. If a unit can burn both a solid 

and liquid fuel, then comparison to 

either fuel would be appropriate. 

In order to make comparisons to 

multiple fuels, as was also discussed in 

the preamble to the February 7 rule, 

units must be designed to burn those 

fuels (78 FR 9111, page 9150). If a 

facility compares contaminants in an 

NHSM to a traditional fuel a unit is not 

designed to burn, and that material is 

highly contaminated, a facility would 

then be able to burn excessive levels of 

waste components in the NHSM as a 

means of discard. Such NHSMs would 

be considered wastes regardless of any 

fuel value. Accordingly, the ability to 

burn a fuel in a combustion unit does 

have a basic set of requirements, the 

most basic of which is the ability to feed 

the material into the combustion unit. 

The unit should also be able to ensure 

the material is well-mixed and maintain 

temperatures within unit specifications. 

Available information regarding use 

of fuel oil. As discussed in section 2.b., 

petitioners indicated during the 

comment period that there are 

combustion units designed to burn 

biomass and fuel oil, but did not 

identify specific units. In a March 2013 

letter,98 petitioners stated that the 

overwhelming majority of creosotetreated railroad ties burned at paper 

mills are burned in boilers that are fully 

capable and permitted to burn at 

maximum capacity rating. AFPA claims 

that most of these boilers (80%) can or 

do burn oil during operating conditions 

outside of startup and shutdown 

periods.99

Additional information was submitted 

by petitioners subsequent to this claim, 

however.100 The new information 

indicates that while stoker, bubbling 

bed or fluidized bed boilers at major 

source 101 paper mills are currently 

designed to combust both fuel oil and 

CTRTs, few, if any, of these units may 

be combusting both fuel oil and biomass 

in the future since those units will be 

switching from fuel oil to natural gas for 

start-up periods and operations. The 

petitioners indicated that continued use 

of fuel oil during operation would result 

in higher compliance costs and higher 

costs per Btu. Petitioners stated that the 

switch to natural gas for operation 

requires replacement of start-up fuel 

systems, and that the most efficient and 

least emitting start-up systems use 

specialized burners for gas. 

We note that EPA collected 

information from owners and operators 

of combustion units across a wide 

variety of industries in its development 

of emissions standards for boilers and 

process heaters under section 112 of the 

Clean Air Act. In that context, based on 

the information submitted by industry 

(including petitioners and others), EPA 

concluded that units that combust solid 

fuels generally used fuel oil or natural 

gas only as a startup fuel. EPA 

concluded that changing the fuel type in 

such units would generally require 

extensive changes to the fuel handling 

and feeding system, as well as 

modification to the burners and 

combustion chambers. 75 FR 32006, 

32017. For these reasons, EPA treated 

these units as units designed to combust 

solid fuels (including biomass). Further, 

the information submitted for the ICR 

indicated that some biomass units may 

combust fuel oil at other times, for 

example, for transient flame stability 

purposes if they are combusting biomass 

with a high moisture content. However, 

the ICR did not indicate the amount of 

fuel oil being combusted, or whether 

fuel oil was combusted alone or in 

conjunction with solid fuel, such as 

biomass. Therefore, at the time of the 

development of the boiler MACT, EPA 

did not have any information, including 

information submitted in response to 

the ICR, indicating there are units 

designed to burn solid fuel which 

commonly switch between combusting 

biomass and fuel oil or otherwise 

combusted fuel oil as part of normal 

operation. 

Information related to dibenzofurans 

and dioxins. As discussed above, the 

Agency requested data on dibenzofuran 

and dioxins, in large part because 

dibenzofuran is known to be present in 

CTRTs and listed as a HAP under CAA 

section 112 and dioxins are a pollutant 

under CAA sections 112 and 129. 

Petitioners submitted an explanatory 

document in response to the Agency’s 

request.102 The document provided 

additional information regarding (a) the 

presence of dibenzofuran in creosote 

and creosote-treated wood, and (b) 

whether the presence of dibenzofuran 

can indicate the concurrent presence of 

the polychlorinated versions of these 

compounds, viz., polychlorinated 

dibenzo p-dioxins and dibenzofurans 

(PCDD/F—often collectively termed 

dioxins). 

The petitioners’ data confirms the 

presence of dibenzofurans. Petitioners 

acknowledged that coal tar creosote 

used in preparing railroad ties may have 

levels of dibenzofuran up to 4.5% or 

45,000 ppm, and dibenzofuran 

concentrations measured in seven 

samples of railroad ties previously 

treated with creosote ranged from 570 to 

1,500 ppm. However, as indicated by 


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103When making contaminant comparisons for 

purposes of meeting the legitimacy criterion, the 

Agency allows grouping of contaminants. For 

example, under the grouping concept, individual 

SVOC levels may be elevated above that of the 

traditional fuel, but the contaminant legitimacy 

criterion will be met as long as total SVOCs is 

comparable to or less than that of the traditional 

fuel. Such an approach is standard practice 

employed by the Agency in developing regulations 

and is consistent with monitoring standards under 

CAA sections 112 and 129. See 78 FR 9146 for 

further information. 

104Petitioner arguments regarding functional 

equivalence and use of CTRT as a commodity are 

also outlined in Legal Analysis Supporting Listing 

Railroad Tie Fuel as a Nonwaste under 

§ 241.4(a)(January 15, 2014.) American Forest and 

Paper Association. 

105To further support a finding of functional 

equivalency, petitioners submitted data claiming 

that stack emissions of PAHs (PAHs are higher in 

railroad ties than in coal or biomass), are controlled 

in the same way as all organic constituents present 

in the other fuels used by the boilers that combust 

railroad tie fuel. The Air Emissions Impact of 

Burning Railroad Tie-Derived Fuel. NCASI, January 

2014. 

106Petitioners also argued in their December 19, 

2013 background material that high PAH levels in 

fuels are not related to PAH emission levels. They 

indicated that Boiler MACT carbon monoxide (CO) 

limits ensure good combustion practices by 

minimizing PAHs and other products of incomplete 

combustion (under the Boiler MACT standards, CO 

is a surrogate for organic HAPs such as PAHs.) Dry 

fuels such as CTRT increase heat value of the fuel 

mix improving combustion temperature and 

conditions. 

the petitioners, this compound should 

not be confused with dioxins or furans, 

which refers to a larger group of 

polychlorinated dibenzofurans and 

dibenzodioxins. 

The Agency agrees with the 

petitioners explanation that 

dibenzofuran present in the CTRTs 

should not result in the formation of 

dioxins, but as a HAP itself, 

dibenzofuran is still appropriate to 

include in the list of SVOCs for 

comparison to traditional fuels.103

Regarding dioxins, the document 

indicted that dioxins should not be 

present in the material. The Agency 

agrees that the level of chlorine during 

creosote production is not sufficient to 

form dioxins in coal tar creosote and 

therefore dioxin should not be present 

in CTRTs prior to combustion. 

As discussed previously, the March 

2011 NHSM final rule noting the 

presence of hexachlorobenzene and 

dinitrotoluene, suggested that creosotetreated lumber include contaminants at 

levels that are not comparable to those 

found in wood or coal, the fuel that 

creosote-treated wood would replace, 

and would thus be considered solid 

wastes. Today’s proposed rule differs in 

several respects from the conclusions in 

the March 2011 rule. Today’s proposal 

concludes that CTRTs are a categorical 

non-waste when combusted in units 

designed to burn both fuel oil and 

biomass. The March 2011 rule, using 

1990 data on railroad cross ties, was 

based on contaminant comparisons to 

coal and biomass and not fuel oil. As 

discussed above, when compared to fuel 

oil, total SVOC contaminant 

concentrations (which would include 

dinitrotoluene and hexachlorobenzene) 

in CTRTs would be less that those found 

in fuel oil, and in fact, the 2012 data 

referenced in today’s proposal showed 

non-detects for those two contaminants. 

c. Other Relevant Factors in a 

Categorical Non-Waste Determination 

for CTRT 

In their request for a categorical 

listing of CTRTs and in background 

information submitted subsequent to 

that request, petitioners argue that, in 

the context of a specific non-waste 

determination under § 241.4(a), the 

Agency can balance the legitimacy 

criteria against other relevant factors in 

any decision to list an NHSM 

categorically. See 40 CFR 241.4(b)(5). 

Specifically, the petitioners argue that 

the phrase ‘‘designed to burn’’ can be 

another relevant factor that the Agency 

can consider in making a decision on 

listing CTRTs categorically as a nonwaste fuel. They argue that by 

conducting such balancing, the Agency 

could allow CTRTs to be burned as a 

non-waste fuel in any combustion unit 

that can combust biomass, whether or 

not the combustion unit is designed to 

burn fuel oil. Thus, the petitioners 

request that the Agency re-define or 

ignore the ‘‘design to burn’’ concept, as 

currently interpreted for the purposes of 

this categorical listing. 

In arguing that the Agency can redefine or ignore the ‘‘design to burn’’ 

concept, petitioners identified 

additional relevant factors to be 

considered in a categorical listing for 

CTRTs. Specifically: 

• CTRTs are functionally the same as 

other comparable traditional fuels, such 

as fossil fuels used in a fuel mix to 

maintain an appropriate BTU level for 

the biomass boilers., combusted in the 

same units and subject to the same air 

pollution controls.104 105

• CTRTs are integral to the 

production process similar to any other 

fuel used and consistently have lower 

moisture content and higher Btu value 

than other biomass fuel. 

• CTRTs are commodity fuels—users 

pay $20—$30 per ton thus the 

petitioners believe that the material is 

not being discarded. 

• High levels of PAHs in CTRTs and 

removal of oil delivery mechanisms 

from units designed to combust fuel oil 

and CTRTs is not an indication that the 

material is being ‘‘discarded’’ and is 

thus a solid waste.106 As discussed 

previously, units will be switching from 

fuel oil to natural gas. Such units 

designed to combust both fuel oil and 

CTRTs include stoker, bubbling bed and 

fluidized bed boilers. Boilers that have 

burned fuel oil currently or in the past 

will discontinue using fuel oil, however, 

petitioners argue that they have clearly 

demonstrated the ability to burn that 

material as a product fuel. 

In general, the petitioners argue that 

any combustor that purchases CTRTs for 

use as a fuel is purchasing the material 

because of its fuel value and that any 

burning is clearly for generating energy, 

as opposed to discarding CTRTs. 

Otherwise, they argue it would lead to 

the absurd result that for a boiler that 

can burn fuel oil and CTRTs, the CTRTs 

would be considered a non-waste fuel, 

whereas another boiler that cannot burn 

fuel oil, but also burns CTRTs, the 

CTRTs would be considered a solid 

waste. Some recyclers and combustors, 

according to petitioners, have been 

managing CTRTs as non-waste fuel, 

irrespective of the type of boiler or 

combustion unit. 

While we agree with the petitioners 

that the agency can list an NHSM 

categorically by balancing the 

legitimacy criteria against other relevant 

factors (40 CFR 241.4(b)(5)(ii), we do not 

agree that the Agency can simply ignore 

any of the legitimacy criteria, or other 

relevant factors, including the 

contaminant legitimacy criterion. In 

particular, the petitioners argue that any 

biomass material regardless of the 

contaminant or how contaminated it is, 

should be considered a non-waste fuel. 

Purchase of the material as a 

commodity for its fuel value is a factor, 

but not determinative when considering 

whether discard has occurred. Further, 

elevated levels of contaminants 

remaining in the material can indicate 

that the material is being discarded. 

While the Agency recognizes that other 

relevant factors may be considered 

when one of the legitimacy criteria are 

not met, there is a limit to the levels of 

contamination allowed in balancing 

other relevant factors with the 

legitimacy criteria. 

We do not agree with petitioner’s 

claim that CTRT are functionally the 

same as other comparable traditional 

fuels, such as fossil fuels that are used 

in a fuel mix to maintain an appropriate 

BTU level for the biomass boilers, that 

are combusted in the same units and 

subject to the same air pollution 

controls. CTRT contains contaminants 

at levels that are not comparable to the 


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107The approach under consideration, if adopted, 

is in addition to the proposed categorical listing of 

CTRTs combusted in units designed to burn 

biomass and fuel oil. It is not an alternative 

approach or replacement for that proposed listing. 

108Statements at meeting between American 

Forest and Paper Association and Mathy Stanislaus 

on December 19, 2013 indicate that, CTRT generally 

comprises 40% of total fuel load. 

109The Agency recognizes natural gas as a source 

of clean energy. The burning of natural gas 

produces nitrogen oxides and carbon dioxide, but 

in lower quantities than burning coal or oil. 

Methane, a primary component of natural gas and 

a greenhouse gas, can also be emitted into the air 

when natural gas is not burned completely. 

Similarly, methane can be emitted as the result of 

leaks and losses during transportation. Emissions of 

sulfur dioxide and mercury compounds from 

burning natural gas are negligible. (see http://

www.epa.gov/cleanenergy/energy-and-you/affect/

natural-gas.html) 

contaminant levels in biomass, the 

traditional fuel the units combusting 

CTRT are designed to burn. As 

discussed, there is a limit to the levels 

of such contamination allowed in 

balancing other relevant factors and 

elevated levels of contaminants 

remaining in the material can indicate 

that the material is being discarded. 

Further, all CTRTs are not functionally 

the same as comparable traditional fuels 

since it must be processed by 

reclamation companies to remove 

metals (spikes, nails etc) and shredded 

into chips to make it suitable as a fuel 

source. 

We also do not agree that CTRTs are 

integral to the production process. In a 

previous categorical determination for 

resinated wood, the Agency did 

conclude that the material was 

integrated into the production process 

and was thus a categorical non-waste 

(78 FR 9155). The Agency based that 

conclusion on information indicating 

that resinated wood production 

facilities were specifically designed to 

utilize that material for their fuel value, 

and the plants could not operate as 

designed without the use of resinated 

wood. Similar information was not 

received for CTRTs. 

Nevertheless, we agree with 

petitioners that the removal of oil 

delivery mechanisms from units 

designed to combust fuel oil and CTRT 

is not necessarily an indication that the 

material is being ‘‘discarded.’’ As 

discussed above, units designed to 

combust both fuel oil and CTRT, 

including stoker, bubbling bed and 

fluidized bed boilers, are switching from 

fuel oil in order to combust natural gas. 

Boilers that have burned fuel oil 

currently or in the past will discontinue 

using fuel oil but have demonstrated the 

ability to burn that material. 

5. Summary and Request for Comment 

EPA believes it has sufficient 

information to list CTRTs categorically 

as a non-waste fuel in combustion units 

that are designed to burn both biomass 

and fuel oil. We would like to make 

clear that the Agency would consider 

units to meet this requirement if the 

unit combusts fuel oil as part of normal 

operations and not solely as part of start 

up or shut down operations. 

At the same time, the Agency is 

considering an approach (based on the 

information described above) that 

would include as a categorical nonwaste, CTRTs that are: (1) Combusted as 

part of normal operations in existing 

units that are designed to burn both 

CTRTs and fuel oil; and, (2) combusted 

in units at major source pulp and paper 

mills that are being modified in order to 

use clean fuel, such as natural gas 

instead of fuel oil. The Agency does not 

believe that combustion of CTRTs in 

boiler units that are currently designed 

to burn both biomass and fuel oil but are 

changing (i.e. removing oil delivery 

equipment) in order to burn natural gas 

should be considered discard. 

Information indicating that CTRTs are 

an important part of the fuel mix due to 

the consistently lower moisture content 

and higher Btu value, as well as the 

benefits of drier more consistent fuel to 

combustion units with significant 

swings in steam demand, further suggest 

that discard is not occurring. 107

If EPA were to include this additional 

approach in the categorical listing, the 

CTRT could continue to be combusted 

only if certain conditions are met, 

which are all intended to ensure that the 

CTRTs are not being discarded. Such 

conditions include: 

• The CTRTs must be burned in an 

existing stoker, bubbling bed or 

fluidized bed boiler;— 

• The CTRTs can comprise no more 

than 40% percent of the fuel that is used 

on a monthly basis;108

• The boiler that burned the CTRTs 

must have been designed to burn both 

fuel oil and biomass; and 

• The boiler is modifying its design to 

also burn natural gas. 

The Agency emphasizes that the 

approach described above is meant to 

address only the current circumstance 

where contaminants in CTRTs are 

comparable to or less than the 

traditional fuels the unit was designed 

to burn (both fuel oil and biomass) but 

that design is modified in order to 

combust natural gas. The approach is 

not a general means to circumvent the 

contaminant legitimacy criterion by 

allowing combustion of any NHSM with 

elevated contaminant levels, i.e. levels 

not comparable to the traditional fuel 

the unit is currently designed to burn. 

The particular facilities in this case 

have used CTRTs and would clearly be 

in compliance with the legitimacy 

criteria if they do not switch to the 

cleaner natural gas fuel. EPA believes it 

is appropriate to balance other relevant 

factors in this categorical non-waste 

determination and that it is appropriate 

for the Agency to decide that the 

switching to the cleaner natural gas 109

would not render the CTRTs a waste 

fuel in view of the historical usage 

which would be a product fuel in the 

stoker, bubbling bed and fluidized bed 

boilers. The nature of the CTRTs as a 

product fuel does not make it a waste on 

switching to the cleaner natural gas for 

the boiler. 

The Agency invites comments on the 

proposed non-waste categorical 

determination and the additional 

approach under consideration described 

above. Comments should only be 

submitted regarding CTRTs. The Agency 

is not accepting comments on other 

wood treated with creosote. The Agency 

also requests comments specifically on 

the use of multiple fuels for 

contaminant comparison in evaluating 

whether to categorically list CTRTs, 

including whether fuel oil itself should 

be one of the traditional fuels used for 

comparison given the factual 

circumstances described above. In 

addition, the Agency requests any 

additional data that should be 

considered in making the comparability 

determination. 

Regarding the additional approach 

under consideration, the Agency 

requests comment whether the approach 

should be applied to sources at other 

industries in addition to pulp and paper 

mills, such as utilities and co-generation 

plants. Regarding the condition that 

CTRTs can comprise no more than 40% 

of the fuel that is used on a monthly 

basis, the Agency requests comment on 

the appropriateness of the 40% limit as 

a percentage of fuel used, the monthly 

or yearly basis for the limit, and, if the 

additional approach is applied to other 

industries, such as utilities, what 

percentage (if any) would be appropriate 

for that industry(s). Finally, the Agency 

requests comment on whether 

combustors should be required to keep 

records that the conditions for burning 

of CTRT described above have been met. 

VI. Technical Corrections 

A. Change to 40 CFR 241.3(b)(2) 

As NHSMs that are not solid wastes 

when combusted under 40 CFR 

241.3(b), § 241.3(b)(2) includes reserved 

sections (i) and (ii). Sections (i) and (ii) 

were reserved in response to the new 40 

CFR 241.4(a)(1) categorical non-waste 


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110 76 FR 15456, March 21, 2011 (page 15545). 

111 76 FR 15456, March 21, 2011 (page 15546). 

112Excluding minor administrative burden/cost 

(e.g. rule familiarization). 

113U.S. EPA, Office of Resource Conservation and 

Recovery, ‘‘Assessment of the Potential Costs, 

Benefits, and Other Impacts for the Proposed Rule: 

Categorical Non-Waste Determination for Selected 

Non Hazardous Secondary Materials (NHSMs): 

Construction and Demolition Wood, Recycling 

Process Residuals, and Creosote-Treated Railroad 

Ties’’ July 22, 2013. 

standards in the February 7, 2013 

rulemaking. Those standards had 

eliminated the need for previous 

standards under sections (i) and (ii) 

related to scrap tires managed under 

established tire collection programs and 

resinated wood (see section IV.A. 

History of NHSM Rulemakings). 

However, reserving only (i) and (ii), and 

not the introductory sentence, led to 

some confusion with the categorical 

non-waste standards. For clarity, and to 

ensure consistent numbering with the 

following sections, we are proposing to 

amend 40 CFR 241.3(b)(2) by reserving 

paragraph (b)(2) in its entirety. 

B. Change to 40 CFR 241.3(c)(1) 

The description of the petition 

process identified in 40 CFR 241.3(c)(1) 

contains a typographical error. 

Specifically, the last sentence of the 40 

CFR 241.3(c)(1) regulatory text from the 

February 2013 final rule states the 

determination will be based on whether 

the non-hazardous secondary material 

that has been discarded is a legitimate 

fuel as specified in paragraph (d)(1) of 

the section and on the following criteria. 

However, the intent of this sentence is 

to say that the determination is based on 

‘‘whether it has or has not been 

discarded’’ in addition to other factors. 

Therefore, we are proposing to amend 

the regulatory text in this proposed rule 

to add a ‘‘not’’ before ‘‘been discarded’’ 

and remove ‘‘that’’ after ‘‘non-hazardous 

secondary material.’’ 

C. Change to 40 CFR 241.3(d)(1)(iii) 

The Agency is also making a technical 

correction to 40 CFR 241.3(d)(1)(iii) to 

clarify that the provision applies to 

combustion units (not just boilers). 

Specifically, that section of the rule 

identifies the legitimacy criteria for nonhazardous secondary materials relating 

to contaminant comparisons between 

the traditional fuel(s) a unit is designed 

to burn and the NHSM. It states that a 

person may choose a traditional fuel 

that can be burned in any type of boiler 

(emphasis added), whereas the rest of 

the sentence refers to the combustion 

unit. Like a boiler, a cement kiln that 

combusts any non-hazardous solid 

waste is subject to regulation as a 

Commercial or Industrial Solid Waste 

Incineration (CISWI) unit pursuant to 

section 129(g)(1) of the CAA. In order 

for a cement kiln not to be classified as 

a CISWI unit, it must use a fuel that is/ 

has been determined to be a non-waste 

fuel under 40 CFR part 241 when 

combusted. Consistent with the section 

as a whole, the word ‘‘boiler’’ is 

replaced with ‘‘combustion unit’’ to 

clarify that a person may choose a 

traditional fuel that can be or is burned 

in a combustion unit, which can be a 

cement kiln, as well as a boiler. 

VII. Effect of Today’s Proposal on Other 

Programs 

Beyond proposing to expand the list 

of NHSMs that categorically qualify as 

non-waste fuels, this proposal does not 

change the effect of the NHSM 

regulations on other programs as 

described in the March 2011 NHSM 

final rule, as amended in February 2013. 

Refer to Section VIII of the March 2011 

NHSM final rule 110 for the discussion 

on the effect of the NHSM rule on other 

programs. 

VIII. State Authority 

A. Relationship to State Programs 

This proposal does not change the 

relationship to state programs as 

described in the March 2011 NHSM 

final rule. Refer to Section IX of the 

March 2011 NHSM final rule 111 for the 

discussion on state authority including, 

‘‘Applicability of State Solid Waste 

Definitions and Beneficial Use 

Determinations’’ and ‘‘Clarifications on 

the Relationship to State Programs.’’ 

The Agency, however, would like to 

reiterate that this proposed rule (like the 

March 2011 and the February 2013 final 

rules) is not intended to interfere with 

a state’s program authority over the 

general management of solid waste. 

B. State Adoption of the Rulemaking 

No federal approval procedures for 

state adoption of today’s proposed rule 

are included in this rulemaking action 

under RCRA subtitle D. Although the 

EPA does promulgate criteria for solid 

waste landfills and approves state 

municipal solid waste landfill 

permitting programs, RCRA does not 

provide the EPA with authority to 

approve state programs beyond those 

landfill permitting programs. While 

states are not required to adopt 

regulations promulgated under RCRA 

subtitle D, some states incorporate 

federal regulations by reference or have 

specific state statutory requirements that 

their state program can be no more 

stringent than the federal regulations. In 

those cases, the EPA anticipates that, if 

required by state law, the changes being 

proposed today, if finalized, will be 

incorporated (or possibly adopted by 

authorized state air programs) consistent 

with the state’s laws and administrative 

procedures. 

IX. Cost and Benefits 

The value of any regulatory action is 

traditionally measured by the net 

change in social welfare that it 

generates. This rulemaking, as 

proposed, establishes a categorical nonwaste listing for selected NHSMs under 

RCRA. This categorical non-waste 

determination allows these materials to 

be combusted as a product fuel in units, 

subject to the section 112 CAA emission 

standards, without being subject to a 

detailed case-by-case analysis of the 

material(s) by individual combustion 

facilities. The proposal establishes no 

direct standards or requirements relative 

to how these materials are managed or 

combusted. As a result, this action alone 

does not directly invoke any costs 112 or 

benefits. Rather, this RCRA proposal is 

being developed to simplify the rules for 

identifying which NHSMs are not solid 

wastes and to provide additional clarity 

and direction for owners or operators of 

combustion facilities. In this regard, this 

proposal provides a procedural benefit 

to the regulated community, as well as 

the states through the establishment of 

regulatory clarity and enhanced 

materials management certainty. 

Because this RCRA action is 

definitional only, any costs or benefits 

indirectly associated with this action 

would not occur without the 

corresponding implementation of the 

relevant CAA rules. However, in an 

effort to ensure rulemaking 

transparency, we have prepared an 

assessment in support of this action that 

examines the potential scope and 

direction of these indirect impacts, for 

both costs and benefits.113 This 

document is available in the docket for 

review and comment. Finally, we 

recognize that this action would 

indirectly affect various materials 

management programs and policies, and 

we are sensitive to these concerns. The 

Agency encourages comment on these 

effects. 

The assessment document, as 

mentioned above, finds that facilities 

operating under CAA section 129 

standards that are currently burning 

CTRTs, and no other solid wastes, and 

who had planned to continue burning 

these materials, may experience cost 

savings associated with the potential 

modification and operational 

adjustments of their affected units. In 

this case, the unit-level cost savings are 

estimated, on average, to be 


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21030 Federal Register / Vol. 79, No. 71 / Monday, April 14, 2014 / Proposed Rules 

114U.S. EPA, Office of Resource Conservation and 

Recovery, ‘‘Assessment of the Potential Costs, 

Benefits, and Other Impacts for the Proposed Rule: 

Categorical Non-Waste Determination for Selected 

Non Hazardous Secondary Materials (NHSMs): 

Construction and Demolition Wood, Recycling 

Process Residuals, and Creosote-Treated Railroad 

Ties’’ July 22, 2013. [Appendix C] 

approximately $266,000 per year. In 

addition, the increased regulatory 

clarity and certainty associated with this 

action may stimulate increased product 

fuel use for one or more of these 

NHSMs, potentially resulting in 

upstream life cycle benefits associated 

with reduced extraction of selected 

virgin materials. 

X. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it may raise novel legal or policy issues. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). Any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The 

Information Collection Request (ICR) 

document prepared by EPA has been 

assigned EPA ICR number 2493.01. 

This action will impose a direct RCRA 

related burden associated with reading 

and understanding the rule. This burden 

is estimated at approximately $74 per 

entity and would impact facilities that 

generate the proposed NHSMs, and 

those that combust these materials as a 

fuel product. In addition, combustors of 

C&D wood must request a written 

certification from C&D processing 

facilities that the C&D wood that they 

intend to burn as a non-waste fuel has 

been processed by trained operators in 

accordance with best management 

practices, as defined in the rule. We 

estimate the preparation of this 

certification would take about 4.1 hours 

for processors to prepare, at a total cost 

of approximately $299 per statement.114

In addition, the burner would need to 

receive, review and maintain the 

certification statement. The indirect cost 

for this activity is estimated at $23.40 

per submission. Burden is defined at 5 

CFR 1320.3(b). 

The preparation of the certification 

statement and the need to maintain 

certification status is the responsibility 

of the processor. The combustor also 

would be required to maintain the 

certification statement on file; however, 

there is already an existing requirement 

for combustors to maintain records that 

show how they are in compliance with 

the 40 CFR 241.3 and 241.4 

requirements. Thus, the requirement to 

maintain the certification statement 

provided by the processor would simply 

be in place of records that would need 

to be maintained for processed C&D 

wood, absent a categorical non-waste 

fuel determination. OMB has previously 

approved the information collection 

requirements contained in the existing 

NHSM regulation at 40 CFR part 241 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2050–0205. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, EPA has established 

a public docket for this rule, which 

includes this ICR, under Docket ID 

number EPA–HQ–RCRA–2013–0110. 

Submit any comments related to the ICR 

to EPA and OMB. See ADDRESSES

section at the beginning of this notice 

for where to submit comments to EPA. 

Send comments to OMB at the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 725 

17th Street NW., Washington, DC 20503, 

Attention: Desk Office for EPA. Since 

OMB is required to make a decision 

concerning the ICR between 30 and 60 

days after April 14, 2014, a comment to 

OMB is best assured of having its full 

effect if OMB receives it by May 14, 

2014. The final rule will respond to any 

OMB or public comments on the 

information collection requirements 

contained in this proposal. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s proposed rule on small 

entities, small entity is defined as: (1) A 

small business as defined by the SBA’s 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. In determining whether a rule 

has a significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analysis is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ 5 U.S.C. 603 and 604. 

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect on all of the small 

entities subject to the rule. 

The proposed addition of the three 

NHSMs to the list of categorical nonwaste fuels is expected to indirectly 

reduce materials management costs. In 

addition, this action will reduce 

regulatory uncertainty associated with 

these materials and help increase 

management efficiency. We have 

therefore concluded that today’s 

proposed rule will relieve regulatory 

burden for all affected small entities. We 

continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. 

UMRA generally excludes from the 

definition of ‘‘Federal 

intergovernmental mandate’’ duties that 


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115The extremely large number of area source 

boilers and the absence of site-specific coordinates 

prevented us from assessing the demographics of 

populations located near these sources. In addition, 

we did not assess child population percentages 

surrounding cement kilns that may use some outof-service railroad crossties for their thermal value. 

116U.S. EPA, Office of Resource Conservation and 

Recovery. Summary of Environmental Justice 

Impacts for the Non-Hazardous Secondary Material 

(NHSM) Rule, the 2010 Commercial and Industrial 

Solid Waste Incinerator (CISWI) Standards, the 

2010 Major Source Boiler NESHAP and the 2010 

Area Source Boiler NESHAP. February 2011. 

arise from participation in a voluntary 

Federal program. Affected entities are 

not required to manage the proposed 

additional NHSMs as non-waste fuels. 

As a result, this action may be 

considered voluntary under UMRA. 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. In 

addition, this proposal will not impose 

direct compliance costs on small 

governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This proposed 

rule will not impose direct compliance 

costs on state or local governments and 

will not preempt state law. Thus, 

Executive Order 13132 does not apply 

to this action. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed action from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000), EPA 

may not issue a regulation that has tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by tribal governments, or 

EPA consults with tribal officials early 

in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. 

EPA has concluded that this action 

may have tribal implications. However, 

it will neither impose substantial direct 

compliance costs on tribal governments, 

nor preempt Tribal law. Potential 

aspects associated with the categorical 

non-waste fuel determinations under 

this proposed rule may invoke minor 

indirect tribal implications to the extent 

that entities generating or consolidating 

these NHSMs on tribal lands could be 

affected. However, any impacts are 

expected to be negligible. 

EPA specifically solicits additional 

comment on this proposed action from 

tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866, and because the 

Agency does not believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. Based 

on the discussion below, the Agency 

found that the populations of children 

near potentially affected boilers are 

either not significantly greater than 

national averages, or in the case of 

landfills, may potentially result in 

reduced discharges near such 

populations. 

The proposed rule, in conjunction 

with the corresponding CAA rules, may 

indirectly stimulate the increased fuel 

use of one or more of the three NHSMs 

by providing enhanced regulatory 

clarity and certainty. This increased fuel 

use may result in the diversion of a 

certain quantity of these NHSMs away 

from current baseline management 

practices. Any corresponding 

disproportionate impacts among 

children would depend upon whether 

children make up a disproportionate 

share of the population living near the 

affected units. Therefore, to assess the 

potential an indirect disproportionate 

effect on children, we conducted a 

demographic analysis for this 

population group surrounding CAA 

section 112 major source boilers, 

municipal solid waste landfills, and 

construction and demolition (C&D) 

landfills for the Major and Area Source 

Boilers rules and the CISWI rule.115 We 

assessed the share of the population 

under the age of 18 living within a 

three-mile (approximately five 

kilometers) radius of these facilities. 

For major source boilers, our findings 

indicate that the percentage of the 

population in these areas under age 18 

years is generally the same as the 

national average.116 In addition, while 

the fuel source and corresponding 

emission mix for some of these boilers 

may change as an indirect response to 

this rule, emissions from these sources 

would remain subject to the protective 

CAA section 112 standards. For 

municipal solid waste and C&D 

landfills, we do not have demographic 

results specific to children. However, 

using the population below the poverty 

level as a rough surrogate for children, 

we found that within three miles of 

facilities that may experience diversions 

of one or more of these NHSMs, lowincome populations, as a percent of the 

total population, are disproportionately 

high relative to the national average. 

Thus, to the extent that these NHSMs 

are diverted away from municipal solid 

waste or C&D landfills, any landfillrelated emissions, discharges, or other 

negative activity potentially affecting 

low-income (children) populations 

living near these units are likely to be 

reduced. Finally, transportation 

emissions associated with the diversion 

of some of this material away from 

landfills to boilers are likely to be 

generally unchanged, while these 

emissions are likely to be reduced for 

on-site generators of paper recycling 

residuals that would reduce off-site 

shipments. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 


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117U.S. EPA, Office of Resource Conservation and 

Recovery. Summary of Environmental Justice 

Impacts for the Non-Hazardous Secondary Material 

(NHSM) Rule, the 2010 Commercial and Industrial 

Solid Waste Incinerator (CISWI) Standards, the 

2010 Major Source Boiler NESHAP and the 2010 

Area Source Boiler NESHAP. February 2011. 

118This figure is for overall population minus 

white population and does not include the Census 

group defined as ‘‘White Hispanic.’’ 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629, Feb. 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has concluded that it is not 

practicable to determine whether there 

would be disproportionately high and 

adverse human health or environmental 

effects on minority and/or low-income 

populations from this proposed rule. 

However, the overall level of emissions, 

or the emissions mix from affected 

boilers are not expected to change 

significantly because the three NHSMs 

proposed to be categorically listed as 

non-waste fuels are generally 

comparable to the types of fuels that 

these combustors would otherwise burn. 

Furthermore, these units remain subject 

to the protective standards established 

under CAA Section 112. 

Our environmental justice 

demographics assessment conducted for 

the prior rulemaking 117 remains 

relevant to this action. This assessment 

reviewed the distributions of minority 

and low-income groups living near 

potentially affected sources using U.S. 

Census blocks. A three-mile radius 

(approximately five kilometers) was 

examined in order to determine the 

demographic composition (e.g., race, 

income, etc.) of these blocks for 

comparison to the corresponding 

national compositions. Findings from 

this analysis indicated that populations 

living within three miles of major 

source boilers represent areas with 

minority and low-income populations 

that are higher than the national 

averages. In these areas, the minority 

share 118 of the population was 33 

percent, compared to the national 

average of 25 percent. For these same 

areas, the percent of the population 

below the poverty line (16 percent) was 

higher than the national average (13 

percent). 

In addition to the demographics 

assessment described above, we also 

considered the potential for noncombustion environmental justice 

concerns related to the potential 

incremental increase in NHSMs 

diversions from current baseline 

management practices. These may 

include the following: 

• Reduced upstream emissions 

resulting from the reduced production 

of virgin fuel: Any reduced upstream 

emissions that may occur in response to 

reduced virgin fuel mining or extraction 

may result in a human health and/or 

environmental benefit to minority and 

low-income populations living near 

these projects. 

• Alternative materials transport 

patterns: Transportation emissions 

associated with NHSMs diverted from 

landfills to boilers are likely to be 

similar, except for on-site paper 

recycling residuals, where the potential 

for less off-site transport to landfills may 

result in reduced truck traffic and 

emissions where such transport patterns 

may pass through minority or lowincome communities. 

• Change in emissions from baseline 

management units: The diversion of 

some of these NHSMs away from 

disposal in landfills may result in a 

marginal decrease in activity at or near 

these facilities. This may include nonadverse impacts, such as marginally 

reduced emissions, odors, groundwater 

and surface water impacts, noise 

pollution, and reduced maintenance 

cost to local infrastructure. Because 

municipal solid waste and C&D landfills 

were found to be located in areas where 

minority and low-income populations 

are disproportionately high relative to 

the national average, any reduction in 

activity and emissions around these 

facilities is likely to benefit (even if only 

marginally) the citizens living near 

these facilities. 

Finally, this rule may help to 

accelerate the abatement of any existing 

stockpiles of these NHSM materials. To 

the extent that these stockpiles may 

have negative human health or 

environmental implications, minority 

and/or low-income populations that live 

near such stockpiles may experience 

marginal health or environmental 

improvements. Aesthetics may also be 

improved in such areas. 

As previously discussed, this RCRA 

action alone does not directly require 

any change in the management of these 

NHSMs. Any potential materials 

management changes, and 

corresponding impacts to minority and 

low-income communities, should be 

considered indirect responses to this 

rulemaking, and would only occur 

when this rule is implemented in 

conjunction with the corresponding 

CAA rules. 

List of Subjects in 40 CFR Part 241 

Environmental protection, Air 

pollution control, Waste treatment and 

disposal. 

Dated: March 24, 2014. 

Gina McCarthy, 

Administrator. 

For the reasons stated in the 

preamble, Title 40, chapter I, of the 

Code of Federal Regulations is proposed 

to be amended as follows: 

PART 241—SOLID WASTES USED AS 

FUELS OR INGREDIENTS IN 

COMBUSTION UNITS 

■ 1. The authority citation for part 241 

continues to read as follows: 

Authority: 42 U.S.C. 6903, 6912, 7429. 

Subpart A—General 

■ 2. Section 241.2 is amended by adding 

the definitions for ‘‘Construction and 

demolition (C&D)’’, ‘‘Creosote treated 

railroad ties’’, and ‘‘Paper recycling 

residuals’’ in alphabetical order to read 

as follows: 

§ 241.2 Definitions. 

* * * * * 

Construction and demolition (C&D) 

wood means wood that is generated 

from the processing of debris from 

construction and demolition activities 

for the purposes of recovering wood. 

C&D wood from construction activities 

results from cutting wood down to size 

during installation or from purchasing 

more wood than a project ultimately 

requires. C&D wood from demolition 

activities results from dismantling 

buildings and other structures or 

removing materials during renovation. 

* * * * * 

Creosote treated railroad ties means 

railway support ties treated with a wood 

preservative containing creosols and 

phenols and made from coal tar oil. 

* * * * * 

Paper recycling residuals means the 

co-product material generated from the 

paper recycling process and is 


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composed primarily of wet strength and 

short wood fibers that cannot be used to 

make new paper and paperboard 

products. The term paper processing 

residuals also includes fibers from old 

corrugated container rejects. 

* * * * * 

Subpart B—Identification of NonHazardous Secondary Materials That 

Are Solid Wastes When Used as Fuels 

or Ingredients in Combustion Units 

■ 3. Section 241.3 is amended by 

revising paragraphs (b)(2), (c)(1) 

introductory text, and (d)(1)(iii) to read 

as follows: 

§ 241.3 Standards and procedures for 

identification of non-hazardous secondary 

materials that are solid wastes when used 

as fuels or ingredients in combustion units. 

* * * * * 

(b) * * * 

(2) [Reserved] 

* * * * * 

(c) * * * 

(1) Submittal of an application to the 

Regional Administrator for the EPA 

Region where the facility or facilities are 

located or the Assistant Administrator 

for the Office of Solid Waste and 

Emergency Response for a 

determination that the non-hazardous 

secondary material, even though it has 

been transferred to a third party, has not 

been discarded and is indistinguishable 

in all relevant aspects from a fuel 

product. The determination will be 

based on whether the non-hazardous 

secondary material has not been 

discarded is a legitimate fuel as 

specified in paragraph (d)(1) of this 

section and on the following criteria: 

* * * * * 

(d) * * * 

(1) * * * 

(iii) The non-hazardous secondary 

material must contain contaminants or 

groups of contaminants at levels 

comparable in concentration to or lower 

than those in traditional fuel(s) which 

the combustion unit is designed to burn. 

In determining which traditional fuel(s) 

a unit is designed to burn, persons may 

choose a traditional fuel that can be or 

is burned in the particular type of 

combustion unit, whether or not the 

unit is permitted to burn that traditional 

fuel. In comparing contaminants 

between traditional fuel(s) and a nonhazardous secondary material, persons 

can use data for traditional fuel 

contaminant levels compiled from 

national surveys, as well as contaminant 

level data from the specific traditional 

fuel being replaced. To account for 

natural variability in contaminant 

levels, persons can use the full range of 

traditional fuel contaminant levels, 

provided such comparisons also 

consider variability in non-hazardous 

secondary material contaminant levels. 

Such comparisons are to be based on a 

direct comparison of the contaminant 

levels in both the non-hazardous 

secondary material and traditional 

fuel(s) prior to combustion. 

* * * * * 

■ 4. Section 241.4 is amended by 

revising the section heading and adding 

paragraphs (a)(5), (6), and (7) to read as 

follows: 

§ 241.4 Non-waste determinations for 

specific non-hazardous secondary 

materials when used as a fuel. 

(a) * * * 

(5) Construction and demolition 

(C&D) wood processed from C&D debris 

according to best management practices. 

Combustors of C&D wood must obtain a 

written certification from C&D 

processing facilities that the C&D wood 

has been processed by trained operators 

in accordance with best management 

practices. Best management practices for 

purposes of this categorical listing must 

include sorting by trained operators that 

excludes or removes the following 

materials from the final product fuel: 

Non-wood materials (e.g., polyvinyl 

chloride and other plastics, drywall, 

concrete, aggregates, dirt, and asbestos), 

and wood treated with creosote, 

pentachlorophenol, chromated copper 

arsenate, or other copper, chromium, or 

arsenical preservatives. In addition: 

(i) C&D processing facilities that use 

positive sorting—where operators pick 

out desirable wood from co-mingled 

debris—must either: 

(A) Exclude all painted wood from the 

final product fuel, 

(B) Use X-ray Fluorescence to ensure 

that painted wood included in the final 

product fuel does not contain leadbased paint, or 

(C) Require documentation that a 

building has been tested for and does 

not include lead-based paint before 

accepting demolition debris from that 

building. 

(ii) C&D processing facilities that use 

negative sorting—where operators 

remove contaminated or otherwise 

undesirable materials from co-mingled 

debris—must remove fines (i.e., smallsized particles that may contain 

relatively high concentrations of lead 

and other contaminants) and either: 

(A) Remove painted wood, 

(B) Use X-ray Fluorescence to detect 

and remove lead-painted wood, or 

(C) Require documentation that a 

building has been tested for and does 

not include lead-based paint before 

accepting demolition debris from that 

building. 

(6) Paper recycling residuals, 

including old corrugated cardboard 

(OCC) rejects, generated from the 

recycling of recovered paper and 

paperboard products and burned on-site 

by paper recycling mills whose boilers 

are designed to burn solid fuel. 

(7) Creosote-treated railroad ties that 

are processed and combusted in units 

designed to burn both biomass and fuel 

oil. 

* * * * * 

[FR Doc. 2014–07375 Filed 4–11–14; 8:45 am] 

BILLING CODE 6560–50–P 


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