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Suggested NHSM Preamble Language

A. Preamble Language on Burden of Proof

Some commentors argue that EPA has improperly presumed that all secondary materials are 

solid wastes by putting the burden of proof on combustors to provide that secondary material

used as fuel meets the legitimacy criteria. EPA disagrees with this reading of the March 2011 

NHSM final rule and the clarification proposed in the December 2011 NHSM proposal. 

Currently, 40 C.F.R. § 241.3(a) states that “except as provided in paragraph (b) of this section, 

non-hazardous secondary materials that are combusted are solid wastes, unless....” Paragraph 

(b) pertains to nonhazardous secondary materials that meet the legitimacy criteria and are used as 

fuel under the control of the generator ((b)(1)), are scrap tires or resinated wood ((b)(2)), are 

ingredients ((b)(3)), or are processed into non-waste fuels ((b)(4)). Commentors interpreted this 

regulatory framework to put the burden of proof on a combustor to demonstrate that a fuel is a 

non-waste, rather than placing to burden on EPA to demonstrate that, when combusted, a 

secondary material is a waste. That is not the Agency’s intent. The title of Part 241, Subpart B 

is “Identification of Non-hazardous Secondary Material That Are Solid Wastes When Used as 

Fuels or Ingredients in Combustion Units.” All of the regulations in Part 241, Subpart B are to 

be used to identify solid wastes, not to identify non-wastes. 

Under Part 241 as currently in effect, all secondary materials other than those materials identified 

in paragraph (b) are considered wastes when combusted unless a non-waste determination is 

made by a Regional Administrator. In the December 2011 NHSM proposal, we proposed to 

change the regulatory language to state that secondary materials other than those identified in 

paragraph (b) or in proposed § 241.4 are “presumed” to be solid wastes when combusted. The 

final rule adopts this change. 

With this regulatory change, we are making it clear that there is no presumption that materials 

identified in paragraph (b) are wastes when combusted. Thus, for materials identified in § 

241.3(b), the regulations should be read to set forth the criteria that EPA will use to meet its 

burden of proof in an enforcement action to show that a secondary material is a waste when 

combusted. The materials identified in § 241.3(b) are presumed to be non-wastes, but EPA can 

demonstrate that they are wastes by demonstrating that the criteria of § 241.3(b) are not met. 

For other materials (primarily secondary materials combusted outside the control of the 

generator), EPA is presuming that they are wastes when combusted. However, we recognize that 

“the occurrence of combustion, by itself, does not render a material a solid waste” (77 Fed. Reg. 

22226, 22227 (Apr. 13, 2012). Accordingly, as § 241.3(a) now makes clear, the waste 

presumption may be overcome. One way to overcome the presumption is for a combustor to 

show that the combustion meets the legitimacy criteria or that the recycling activity as a whole 

demonstrates that the material is not being combusted with the intent to dispose of it. Other 

factors, such as the fact that a material is sold in commerce, is managed under contracts, or is 

essentially the same as a fuel, also may overcome the waste presumption. The regulation does 

not limit the facts that may be considered to overcome the Agency’s presumption that certain 
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NHSM are wastes when combusted. This clarification is consistent with how EPA has long used 

the criteria set forth in the Lowrance memorandum to identify sham recycling. 

We recognize that some of the confusion over the burden of proof in the NHSM rule was created 

by a provision in the CISWI rule that stated that a secondary material was a waste unless a 

combustor kept records demonstrating it was a non-waste. We recognize that this regulatory 

language improperly purported to use Clean Air Act authority to define solid waste based on 

record-keeping requirements. To rectify this situation, elsewhere in today’s Federal Register 

EPA is amending 40 CFR § 60.2265 and 40 CFR § 60.2875 to delete the following sentence: 

If the operating units burns materials other than traditional fuels as defined in § 

241.2 that have been discarded, and you do not keep and produce records as 

required by § 60.2175(v) [§ 60.2740(u)], the material is a solid waste and the 

operating unit is a CISWI unit. 

[Alternative: 

To rectify this situation, elsewhere in today’s Federal Register the preamble to the final CISWI 

rule clarifies the following sentence in 40 CFR § 60.2265 and 40 CFR § 60.2875: 

If the operating units burns materials other than traditional fuels as defined in § 

241.2 that have been discarded, and you do not keep and produce records as 

required by § 60.2175(v) [§ 60.2740(u)], the material is a solid waste and the 

operating unit is a CISWI unit. 

As stated in the CISWI rule preamble, for materials that EPA does not presume to be a waste, as 

discussed above, the conditions imposed by this sentence on the identification of non-hazardous 

secondary materials that are wastes are met through the preamble language in this rule and no 

further documentation or record-keeping is required.]

B. Preamble Language on Specific Non-waste Fuels

1. Wastewater Treatment Residuals (Pulp and Paper Sludge)

In the December 2011 NHSM proposal, we solicited comments on whether to add pulp and 

paper wastewater treatment residuals to the list of materials identified in proposed § 241.4 as 

“not solid wastes when used as fuel in a combustion unit.” In the March 2011 final NHSM rule, 

we already acknowledged that the combustion of pulp and paper wastewater treatment residuals

meets the legitimacy criteria. See 76 Fed. Reg. at 15488. We reaffirmed this determination in 

the December 2011 proposed rule for such residuals that are combusted under the control of the 

generator. 76 Fed. Reg. at 80484. However, by listing pulp and paper wastewater treatment 

residuals in § 241.4, “persons would not have to make individual determinations as to whether or 

not these NHSMs are solid wastes.” 76 Fed. Reg. at 80484.1 

 

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 In addition, under the CISWI final rule, persons who combust a listed NHSM do not need to keep records 

demonstrating that such material is a non-waste fuel. However, as discussed in the preamble to the CISWI 

Reconsideration proposal, we are now deleting this provision from the CISWI rule, so that rule no longer adds, 
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There is sufficient information in the record for this rule-making to support the determination 

that combustion of pulp and paper wastewater treatment residuals is not a waste disposal activity. 

The contaminant concentrations in these residuals are well within the range of concentrations 

found in traditional fuels, including coal. These residuals have heating value. Finally, these 

residuals are managed in the same way as other fuels, such as wood and bark. See generally 76 

Fed. Reg. at 80485. 

We did not propose to list pulp and paper wastewater treatment residuals as a categorical nonwaste fuel in the December 2011 proposal because not all pulp and paper mills combust their 

wastewater treatment residuals and not all pulp and paper mills that use such residuals as fuel 

combust 100% of these residuals. Before listing this NHSM as a categorical non-waste fuel, we 

sought additional information, beyond the questions asked by the legitimacy criteria, about how 

the decision to combust wastewater treatment residuals is made, to ensure that such combustion 

is with the intent to generate energy and not with the intent to discard waste. 

The American Forest & Paper Association (AF&PA) has provided information regarding the use 

of pulp and paper wastewater treatment residuals (WWTR) for energy recovery and how the 

decision to burn such residuals is made. WWTR are not be used as fuels during periods of boiler 

downtime and maintenance or if greater uses of WWTR will result in undesirable combustion 

by-products such as “clinkers” that can damage the boiler. Moreover, not all pulp and paper 

mills burn these residuals because not all mills have boilers that are designed to burn them, have 

the capacity to use them or may face other operational constraints. Finally, not all mills need the 

energy that these residuals provide since steam capacity can come from recovery furnaces or 

other boilers. At such mills, wastewater treatment residuals are not burned for energy recovery. 

In contrast, some mills have invested in equipment (boilers and dewatering equipment) that 

allow them to derive energy from all of their wastewater treatment residuals. At the mills that do 

burn wastewater treatment residuals, on average about 70% of the residuals that are generated 

are combusted, and in a third of the cases 100% is burned. 

Not all wastewater treatment residuals are combusted because fuel decisions are made on a day

to day basis, depending on the energy needs of the mill, the availability of residuals with

sufficient Btu value, and the price and availability of other fuels. However, there is no 

information in the record that suggests that, when residuals are burned, they are burned with the 

intent to discard them. The residuals that are not burned may end up being discarded in landfills, 

but that material is not the subject of the NHSM rule. Further, the record supports the conclusion 

that, at the mills that do burn wastewater treatment residuals, that combustion is an integral part 

of the economic operation of a mill. Using the biomass from pulp and paper wastewater 

treatment residuals saves the mills that combust these residuals an average of $3 million a year. 

At any one mill, that savings may be the difference between remaining profitable and closing a 

mill. 

 

under the Clean Air Act, additional criteria for a solid waste determination, beyond what is provided under Part 241 

under RCRA. See Natural Resources Defense Council v. EPA, 489 F.3d 1250 (D.C. Cir. 2007) (holding that under 

section 129 of the Clean Air Act the term solid waste must be defined by the Administrator under RCRA, not under 

the CAA). 
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Based on this record, we are listing pulp and paper wastewater treatment residuals as a non-waste 

fuel in § 241.4. This listing is based on our recognition that the residuals that are the subject of 

the categorical listing, i.e., materials that are “not solid wastes when used as a fuel in a 

combustion unit,” are always burned for legitimate energy recovery when combusted. 

In addition, we are listing pulp and paper wastewater treatment residuals that are transferred to 

electric utilities under agreements for the use of such residuals as fuel. The listing of residuals 

that are combusted by utilities under contractual agreements is based on the recognition that such 

combustion is the use of a valuable fuel commodity, and not the discard of a waste. 

2. Recycling Process Residuals (including OCC Rejects)

In the March 2011 NHSM final rule, we acknowledged that “use [as fuel] of old corrugated 

cardboard (OCC) rejects (clay, starches, other filler and coating materials, as well as fiber) are 

not discarded when used within the control of the generator, since these secondary materials are 

part of the industrial process.” 76 Fed. Reg. at 15472. Despite this recognition, we did not 

propose, in the December 2011 NHSM proposal, to add the recycling process residuals from 

pulp and paper production to the list of categorical non-waste fuels at § 241.4. 

Commentors have provided information that further supports what we have already concluded, 

that the use of pulp and paper recycling process residuals as fuel is part of a continuous industrial 

process.2 As is demonstrated by a diagram provided in comments, there is no point in the 

industrial process where such residuals are discarded prior to combustion, and the combustion 

itself meets all of the legitimacy criteria. See AF&PA et al comments dated February 21, 2012, 

at 54-59. Based on this information, we have determined that the combustion of this material is 

not a waste disposal activity. Accordingly, a combustor that combusts pulp and paper recycling 

process residuals need not make any individual determination that such material is a non-waste 

fuel. Instead, such a combustor may rely on this preamble to show that pulp and paper recycling 

process residuals that are combusted meet the legitimacy criteria. 3 The only difference between 

this conclusion and listing recycling process residuals in § 241.4 is that, if there were to be an 

instance where a combustor combusted these residuals with the intent to dispose of them,4 then 

EPA could bring forward these facts and make the case that a specific instance of combustion 

constituted waste disposal rather than legitimate combustion of a non-waste fuel. Thus, in the 

final NHSM rule, we presume, based on the record, that combustion of recycling process 

residuals for energy recovery is combustion of a non-waste fuel. However, that presumption can 

be rebutted based on site-specific facts brought forth by EPA. 

3. Construction and Demolition Wood

 

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 These residuals are material removed from repulping all recovered fibers, not just old corrugated containers. See

AF&PA et al comments dated February 21, 2012, at 55.

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 This preamble language also meets the Clean Air Act record-keeping requirements of § 63.11225(c)(ii) (area 

source boilers), § 63.7555(d)(2) (major source boilers), § 60.2175(v) (CISWI), and § 60.2740(u) (CISWI).

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 We have no record of this occurring. 
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In the March 2011 NHSM final rule, we included clean construction and demolition wood in the 

definition of traditional fuel and acknowledged that construction and demolition wood that is not 

clean can be cleaned (processed) such that it becomes a non-waste fuel. 76 Fed. Reg. at 15485. 

In comments on the December 2011 NHSM proposal, commentors requested EPA to list 

processed construction and demolition wood as a non-waste fuel in § 241.4. Commentors asked 

EPA to promulgate a definition of “processed construction and demolition wood” to define what 

is covered by the categorical non-waste listing. Commentors proposed that this definition 

encompass C&D wood obtained from fuel generators or processors that have certified they have 

processes and procedures in place throughout their supply chain for the visual inspection and 

source/physical separation of potential lead-painted wood, or wood treated with 

pentachlorophenol or CCA compounds, as well as non-wood materials. Commentors also 

provided data that show that processed C&D wood has contaminants at levels that are 

comparable to or lower than traditional fuels, including coal. Commentors provided evidence 

that C&D wood is managed as a valuable commodity in accordance with supply contracts. 

Finally, commentors provided information on the adverse economic and environmental 

consequences that would result if persons stopped combusting C&D wood.5 See AF&PA et al 

comments dated February 21, 2012, at 59-68. 

Based on this information, we have determined that C&D wood that is processed and is sold 

under a contract to provides fuel specifications is not a waste when combusted. Accordingly, a 

combustor that combusts C&D wood received from a processor that certifies that the wood is 

processed to remove lead-painted wood, wood treated with pentachlorophenol or CCA 

compounds, and non-wood materials need not make any individual determination that such 

material is a non-waste fuel. As with tires that are managed in established tire collection 

programs, the combustor need not prove that all such materials have been removed. Rather, it is 

sufficient that a combustor obtain C&D wood from a processor that has such a processing 

program in place. Compare 76 Fed. Reg. 28318, 28322 (May 17, 2011) (discussing the fact that 

a combustor of tires need only establish that a tire is obtained from an established tire collection 

program to establish that the tire is a non-waste fuel). Instead, such a combustor may rely on this 

preamble to show that such C&D wood meets the legitimacy criteria.6 

Thus, while we have not added processed C&D wood to the list of non-waste fuels at § 241.4, 

this preamble language serves the same function as the various “comfort letters” provided to 

entities that combust processed waste.7 NHSM that is processed as described above is not a 

waste when combusted. 

 

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 Commentors have pointed out that if biomass to energy facilities must make individual determinations on the

legitimacy of each load of C&D wood then they may discontinue the use of C&D wood as fuel due to the adverse 

consequences of inadvertently combusting a waste fuel and the cost of testing to demonstrate that fuel is not a waste. 

However, many biomass to energy facilities could not stay in operation without C&D wood as a fuel source. If 

those facilities shut down, there will not be sufficient capacity to combust other biomass material, such as 

agricultural residue. In places like California, farmers may revert to burning agricultural residue in the fields and 

areas of California may have no ability to achieve attainment status for ozone and particulates. See AF&PA et al 

comments dated February 21, 2012, at 65-68. 

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 This preamble language also meets the Clean Air Act record-keeping requirements of § 63.11225(c)(ii) (area 

source boilers), § 63.7555(d)(2) (major source boilers), § 60.2175(v) (CISWI), and § 60.2740(u) (CISWI).

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See, e.g., [list letters]. 
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4. Creosote and Borate Treated Wood

In the March 2011 NHSM final rule, we did not include creosote treated wood in the definition 

of traditional fuel. In addition, we expressed concern over the contaminant levels in creosote 

treated wood. 76 Fed. Reg. at 15483. We did not propose to change this position in the 

December 2011 NHSM proposal. 

However, our original position regarding creosote treated wood was based on a 

misunderstanding of the facts. We were unaware of the vast volume of such wood that is 

currently combusted for legitimate energy recovery. In fact, in NHSM final rule states: “While 

we recognize that creosote-treated wood has been utilized as a fuel for over ten years, few 

markets are available for creosote-treated wood due to concerns about the contaminants. This 

strongly suggests that burning this material is a waste treatment activity.” 76 Fed. Reg. at 15483. 

This statement is not accurate. Based on information provided by the Association of American 

Railroads, we are now aware that over 9 million railroad ties annually are combusted for energy

recovery. Further, we are aware that more than half of all railroad ties are sold as fuel when they

are removed from service. 

The NHSM final rule does recognize that the combustion of borate treated wood would meet the 

legitimacy criteria for contaminants, but since it is not combusted under the control of the 

generator, it would be a waste under that rule when combusted. 76 Fed. Reg. at 15484. 

Based on the information in the record, it is clear that creosote and borate treated railroad ties 

and utility poles are not discarded before they are combusted. Further, because combustors are 

paying for this fuel, it is clear that it is not being combusted for the purpose of disposal. Under § 

241.3(a), NHSM that is combusted by a third-party, such as the combustors that buy treated 

wood for use as fuel, is presumed to be a waste. However, as discussed above, that presumption 

can be overcome and in the case of creosote and borate treated wood has been overcome, by the 

facts surrounding the use of this fuel. Accordingly, we now determine that the combustion of 

creosote treated wood and borate treated wood that has not previously been discarded and that is 

managed under a fuel supply contract is not the combustion of a waste. A combustor of such 

wood may rely on this preamble to show that such wood is presumed to be a non-waste fuel. 8

 

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 This preamble language also meets the Clean Air Act record-keeping requirements of § 63.11225(c)(ii) (area 

source boilers), § 63.7555(d)(2) (major source boilers), § 60.2175(v) (CISWI), and § 60.2740(u) (CISWI).