1 Suggested NHSM Preamble Language A. Preamble Language on Burden of Proof Some co mmentors argue t hat EPA has improperly presumed that all secondary m ateri als are solid wastes by putting th e burden of p roof o n combustors to provide th at secondary m ateri al u sed as fuel meets th e legit imacy cri teri a. EPA di sagrees wi

th t his reading of the March 2011 NHSM final rule and the clarificat io n proposed in the December 2011 NHSM proposal. Current ly, 40 C.F.R. § 241.3(a) states that “except as provided in paragrap h (b) of this section, non - hazardous secondary m ateri als that are combusted are solid wastes, unless...

. ” Paragraph (b) pertains to nonhazardous secondary m ateri als that meet the legi timacy cri teria 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

f ramework to put the burden of proof on a combustor to demonstrate that a fuel is a non - wa ste, rather than placing to burden on EPA to demonstrate that, when combusted, a secondary m ateri al i s a waste. That is not the Agency’s intent. The tit le of Part 241, Subpart B is “Ident ification of Non

- hazardous Secondary Materi al That Are Solid Wastes When Used as Fuels or Ingredients in Co mbust io n Units.” All o f th e regulat io ns in Part 241, Subpart B are to be used to ident ify so lid wastes, not to ident ify non - wastes. Under Part 241 as currently in effect, all secondary materials oth er than those mat eri als ident ified in paragraph (b) are considered wastes when co mbusted unless a non

- waste determinat io n is made by a Regi onal

A dministrator. I n the December 2011 NHSM proposal, we proposed to change the regulatory

l anguage to state t hat secondary mate ri als other than those ident ified in paragraph (b) or in proposed § 241.4 are “presumed” to be solid wastes when combusted. The final rule adopts this change. Wit h this regulatory

change, we are making it clear that there is no presumption that material s ident ified in paragraph (b) are wastes when co mbusted. Thus, for materials identified in § 241.3(b), the regulat io ns 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 materi al is a waste when combusted. The materials ident ified in § 241.3(b) are presumed to be non

- wastes, but EPA can demonstrate that they

are wastes by demo nstrating that the criteria of § 241.3(b) are not met. For other materials (primarily secondary

m ateri als combusted outside the control of the generator), EPA is presuming that they are wastes when combusted. However, we recognize that “t he occurrence of co mbust io n, by it self, does not render a material a so lid waste” (77 Fed. Reg. 22226, 22227 ( Apr. 13, 2012). Accordingly, as § 241.3(a) now makes clear, th e waste presum pt io n may be overco me. One way to overcome the presumpt io n is fo r a combustor to show that the combustion meets the legit imacy crit eri a or that the recycling activit y as a who le 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 so ld in commerce, is managed under contracts, or is essent ia lly the same as a fuel, also may overcome the waste pres um pt io n. The regulation does not limit the facts that may be considered to overcome the Agency’s presumpt io n that certain2

NHSM are wastes when combusted. Thi s clarification is consistent wi th how EPA has long used th e criteria set forth in the Lowrance m emorandum to i dent ify sham recycling. We recognize that some of the confusio n over the burden of proof in the NHSM rule was created by a provi si on

in the CISWI rule that stated that a secondary m ateri al was a waste unless a combustor kept records demonst rating i t was a non
- waste. We recognize that this regulatory language improperly purported to use Clean Air Act authorit y to define so lid waste based on record

- keeping requirements. To rectify this situat ion, elsewhere in today ’s Federal Register EPA i s a mending 40 CFR § 60.2265 and 40 CFR § 60.2875 to delete the fo llo wing sentence:

If the operating units burns materials other than tradit io nal fuels as defined in § 241.2 that have been discarded, and y ou do not keep and produce records as requi red by § 60.2175(v) [§ 60.2740(u)], the material is a so lid waste and the operating unit is a CISWI unit. [ Alt ernative: To rectify this situat io n, el sewhere in today ’s Federal Register the preamble to the final CISWI rul e clarifies the following sentence in 40 CFR § 60.2265 and 40 CFR § 60.2875:

If the operating units burns materials other than tradit io nal fuels as defined in § 241.2 that have been discarded, and y ou do not keep and produce records as requi red by § 60.2175(v) [§ 60.2740(u)], the material is a so lid waste and the operating unit is a CISWI unit. As stated in the CISWI rul e preamble, f or materi als that EPA does not presume to be a waste, as di scussed above, the condi ti ons imposed by

this sentence on the ident ificat io n of non

- hazardous secondar y materi als that are wastes are met through the preamble language in this rul e 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 p r oposal, we solicit ed comments on whether to add pulp and paper wastewater treatment residual s to the list of materi als ident ified in proposed § 241.4 as “not solid wastes when used as fuel in a combust io n unit.” In the March 2011 fina l NHSM rul e, w e al ready acknowledged that the combust io n of pul p and paper wastewater treatment residual s meet s th e legi

timacy cri teria

. See76 Fed. Reg. at 15488. We reaffirmed this determinat io n in th e December 2011 proposed rule for such residuals th at are combusted under the control of the generator. 76 Fed. Reg. at 80484. However, by l isting pulp and paper wastewater treatment resi duals in § 241.4, “persons would not have to make individual determinat io ns as to whether or not these NHSMs are solid wastes.” 76 Fed. Reg. at 80484. 1

1 In addition, under the CISWI final rule, persons who combust a listed NHSM do not need to keep records de monstrating 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,3

There i s sufficient informat io n in the record for this rule

- mak ing to support the determinat io n th at combust io n of pulp and paper wastewater treatment residuals is not a waste disposal activit y. The contaminant concen

trati ons in these residuals are well wit hin the range of concentrations fo und in tradi

ti onal f uels, including coal . These resi duals have heating value. Finally, these resi duals are managed in the same way as other fuels, such as wood and bark. See gener ally76 Fed. Reg. at 80485. We did not propose to list pulp and paper wastewater treatment residuals as a categori cal non w aste 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 list ing this NHSM as a categorical non

- waste fuel, we sought addit io nal informat io n , beyond the quest io ns asked by the legit imacy criteria, about how th e deci si on

to combust wastewater treatment residuals is made, to ensure that such combustion is wi th the intent to generate energy and not wi

th the intent to discard

waste

. The American Forest & Paper Associat io n (AF&PA) has provi ded informat io n regarding the use of pul p and pa p er wastewater treatment residuals (WWTR) fo r energy recovery and how the decisio n to burn such residuals is made. WWTR are not be used as fuels during periods of bo iler downtime and maintenance or if greater uses of WWTR will result in undesirable combust io n by

- products such as “ clinkers” that can damage the boiler. Moreover, not all pulp and paper mills burn th ese residuals b ecause not all mills have bo ilers that are designed to burn th em , have th e capacit y to use them

or ma y face oth er operational constraints

. Finally, not all mills need the energy that th ese residuals provi de since steam capaci ty can come f

rom recovery f urnaces or other boilers

. At such

mills, wastewater treatment residuals are not burned for energy recovery

. In c ontrast, some mills have invested in equipment (boilers and dewatering equipment) that allow them to derive energy fro m all o f th ei r wastewater treatment residuals. At th e mills that do burn wastewater treatment residuals , on average about 70% of the residuals th at are generated are combusted , and in a third of the cases 100% is burned

. Not all wastewater treatment residuals are combusted because fuel decisio ns are made on a day to day basis, depending on the energy needs of the mill , the availabilit y o f residuals wi th sufficient Btu value, and the pri ce and availabi lit y of other fuels. However, there is no informat io n in the record that suggests that, wh en residuals are burned, th ey are burned with the int ent to di scard

them . The resi duals that are no t burned may end up being discarded in landfills, but that mat eri al is not the subject of the NHSM rule. Further, the record supports the conclusio n th at, at the mills that do burn wastewater treatment residuals, th at combust io n is an integral part of the economic operation of a mill. Using the bio mass fro m pul p and paper wastewater treatment residuals saves th e mills that combust th ese residuals an average of $3 millio n a year. At any one mill, that savings may be the difference between remaining profit able and closing a mill.

under the Clean Air Act, additional crite ria 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).4

Based on this record, we are list ing pul p and paper wastewater treatment residuals as a non - waste fuel in § 241.4. This list ing is b ased on our recognit io n that the residuals that are th e subject of th e categori cal

list ing, i.e ., materi als that are “not solid wastes when used as a fuel in a combustion unit,” are always burned for legit imate energy recovery when combusted. In addit io n, we are list ing pulp and paper wastewater treatment residuals that are transferred to electri c utili

ti es under agreements fo r the use of such residuals as fuel. The list ing o f resi duals th at are combusted by

utili ti es under contractual agreements is based on the recognit io n that such combustion is the use of a valuable fuel co mmo di ty, and not the di scard of a waste. 2. Recycling Process Residuals ( including OCC Rejects) In the March 2011 NHSM final rule, we acknowledge d that “use [as fuel] of

old corrugated cardboard (OCC) rejects (clay , starches, other filler and coating materials, as well as fib er) 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 recognit io n, we did not propose, in the December 2011 NHSM proposal, to add the recy cling process residuals fro m pul p and paper production to the list of categorical non

- waste fuels at § 241.4. Commentors have provided informat io n that further supports what we have already concluded, th at the use of pulp and paper recycling process residuals as fuel is part of a continuous industrial process. 2 As is demonstrated by a di agram provided in co mments, there is no point in the industri al process where such residuals are discarded prior to combust io n, and the combust io n it self meets all o f th e legi timacy cri teria. See AF&PA et al co mments dated February 21, 2012 , at 54

- 59. Based on this informat io n, we have determined that the combust io n of this material is not a waste disposal act ivit y. Accordingly, a combustor that combusts pulp and p aper recycling process resi duals need not make any individual determinat io n that such material is a non

- waste fuel. Instead, such a combustor may rely on this preamble to show that pulp and paper recy cling process resi duals that are combusted meet the leg it imacy criteria. 3 The only difference between thi s conclusio n and list ing recy cling 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 br ing fo rward these facts and make the case that a specific instance o f combustion constituted waste disposal rather than legit imate combust io n of a non

- waste fuel. Thus, in the final NHSM rule, we presume, based on the record, that combust io n of recycling process resi duals for energy recovery i s co mbust io n of a non

- waste fuel. However, that presumpt io n can be rebutted based on site

- specific facts brought forth by EPA. 3. C onstructi on and Demol it io n Wo od

2 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. 3 This pr eamble language also m eets 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). 4 We have no record of this occurring.5

In the March 2011 NHSM final rule, we included clean constructi on and demol it io n wood in the definit io n o f tradi

ti onal f uel and acknowledged that construction and demo lit io n wood that i s not clean can be cleaned (processed) such that it becomes a non

- waste fuel. 76 Fed. Reg. at 15485. In comments on the D ecember 2011 NHSM proposal, co mmentors requested EPA to list processed construction and demo lit io n wood as a non

- waste fuel in § 241.4. Commentors asked EPA to prom

ulgate a definit io n of “processed construction and demo lit io n wood” to define what is cover ed by

the categorical

non - waste list ing. Commentors proposed th at t his definit io n enco mpass C&D wood obtained fro m fuel generators or processors that have certified they have processes and procedures in place throughout their supply chain for the visual inspect io n and source/physical separat io n of potential lead

- painted wood, or wood treated with pentachloropheno l or CCA com pounds, as well as non

- wood materi als. Commentors also provi ded data that show that processed C&D wood ha s contaminants at levels that are com parable to or lower than tradi ti onal f uels, including coal. Commentors provided evidence th at C&D wood is managed as a valuable commodit y in accordance wit h supply contracts. Finally, co mmentors provi ded informat io n on the adverse econo mic and e nvironmental 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 informat io n, we have determined that C&D wood that is processed and is so ld under a contract to provi des f uel specificat io ns i s not a waste when combusted. Accordingly, a combustor that combusts C&D wood received from a processor that certifies th at th e wood is processed to remove lead

- painted wood, wood treated with pentachlo ro pheno l or CCA com p ounds, and non

- wood materi als need not make any individual determinat io n that such materi al i s a non - waste fuel. As wi th ti res that are managed in established t ir e collect io n programs, the combustor need not prove that all such materials have been removed . Rather, i t i s sufficient that a combustor obtain C&D wood from a processor that has such a processing program in place. Compare76 Fed. Reg. 28318, 28322 (May 17, 2011) (di scussing the fact that a combustor of tires need only establish that a ti

re is o bt ained fro m an established tire co llect io n 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 legit imacy criteria. 6 Thus, while we have not added processed C&D wood to the list of non

- waste fuels at § 241.4, thi s preamble language serves the same funct io n as the various “co mfo rt letters” provided to ent it ies that combust processed waste. 7 NHSM that is processed as described above is not a waste when combust ed.

5 C ommentors have pointed out that if biomass to energy f acilities must make individual determinations on t he legitimacy of each load of C&D wood then they m ay d iscontinue 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 toenergy f acilities could not stay in operation without C&D wood as a fuel source. I f those facilities shut down, there will not be sufficient capacity toc om bust other biomass mater ial, 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 foro zone and particulates. S ee AF&PA et al comments dated February 21, 2012, at 65

- 68. 6 This pr eamble 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). 7 See, e.g., [list letters].6

4. Creosote and Borate Treated Wood In the March 2011 NHSM final rule, we did not include creosote treated wood in the definit io n of tradi ti onal f uel . In addi

ti on, we expressed concern over the contaminant levels in creosote treated wood. 76 Fed. Re g. at 15483. We did not propose to change this posit io n in the December 2011 NHSM proposal. However, our original posit io n regarding creosote treated wood was based on a misunderstanding o f th e facts. W e were unaware of th e vast vo lu me of such wood th at i s currently co mbusted for leg it imate energy recovery . In fact, i

n 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 concern s about the con taminants. This strongly suggests that burning this material is a waste treatment activit y.” 76 Fed. Reg. at 15483. This statement is not accurate. Based on informat ion provided by the Associ at io n

of Ameri can Railroad s, we are now aware t hat over 9 millio n railroad ti es annually are combusted for energy recovery . Further, we are aware that mo re than half o f all railroad ti es are sold as fuel when they are removed fro m service. The NHSM final rule does recognize that the combusti on of b orate treated wood would me et the legit imacy cri

teri a f or contaminants , but since it is not com busted under th e control o f th e gener ator, i

t would be a waste under that rule when co mbusted. 76 Fed. Reg. at 15484. Based on th e informat io n in the record , it i s clear that creosote and borate treated railroad ties and utilit y poles are not di scarded before they are combusted. Further, because co mbustors 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 thi rd

- party, such as the combustors that buy treated wood for use as fuel, is presumed to be a waste. However, as discussed above, that presumpt io n 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 combust io n of creosote treated wood and borate treated wood th at has not previously been discarded and that is managed under a fuel supply contract is not the combust io n 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

8 This pr eamble 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).