July 19, 2012 

Via e-mail (Cortney_Higgins@omb.eop.gov ) 

Ms. Cortney Higgins 

Office of Information and Regulatory Affairs 

Office of Management and Budget 

725 17th Street, N.W. 

Washington, DC 20503 

Re: NSPS and EG: Commercial and Industrial Solid Waste Incineration Units: 

Reconsideration and Proposed Amendments; Non-Hazardous Secondary 

Materials That Are Solid Waste: Proposed Rule, RIN 2060-AR15

Dear Ms. Higgins: 

 This letter expresses my thanks on behalf of the Treated Wood Council (TWC) for your 

willingness to meet with us on June 11, 2012, along with other interested federal agency 

representatives, to discuss the above-referenced rule as part of the Executive Order 12,866 

interagency review process. 

 As we said, TWC reiterates its support for the proposed rule’s (and the March 21, 2011 

final rule’s) categorical non-waste determination with respect to resinated wood. We note that 

EPA made this determination despite the presence of contaminants in resinated wood that are 

not found in traditional fuels, based on a balancing test that relies heavily on evidence that shows 

“the purpose of burning these wood residuals (including the resins that they contain, which 

themselves contribute to the heating value of the material) is not to destroy or discard them, as 

they are clearly considered and managed as a valuable commodity to the wood manufacturing 

process,” 76 Fed. Reg. 80,452, 80,483 (Dec. 23, 2011). As we demonstrated at our meeting, 

treated wood is analytically the same, and the same categorical non-waste designation that EPA 

has concluded is appropriate for resinated wood should apply equally to treated wood. 

• Like resinated wood, treated wood is a sought-after fuel, and has a long track 

record of commercial dealings evidencing its established use for energy recovery. 

Attachment 1 shows that, on a consistent basis going back more than 20 years, 

tens of thousands – in some years well more than 100,000 – tons of treated wood 

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have been burned annually at one co-gen plant alone for energy production. This 

plant has since 1989 beneficially combusted 2.3 million tons of treated wood 

feedstock, a volume that equals 1.6 times the height of the Willis Tower (formerly 

known as the Sears Tower) in Chicago. 

• Like resinated wood, treated wood is valued as a fuel because it has a high Btu 

level (due to low moisture content and the extra heat generated by wood treating 

chemicals – urea formaldehyde, phenol formaldehyde, and pmd isocyanurate in 

the case of resinated wood, and, in the case of treated wood, creosote, 

pentachlorophenol, and a limited number of other chemicals that are not among 

the chemicals of concern listed in the proposed rule). 

• Like resinated wood, treated wood is “clearly considered and managed as a 

valuable commodity.” In its comments (and also attached to this letter), TWC 

submitted twelve contracts, just a small sample of those in place with at least 90 

customers throughout the industry, documenting the carefully managed 

arrangements for receipt, handling, and combustion as fuel of secondary treated 

wood products (Attachments 2, 3, and 4). The State of Michigan’s Department of 

Natural Resources and Environment, in comments filed with EPA on Aug. 3, 

2010, reported that in 2009, 17,625 tons of non-hazardous secondary wood 

products, including wood treated with pentachlorophenol or creosote, were 

burned in that state for energy recovery and were eligible for electricity renewable 

energy or advanced cleaner energy credits under the State’s Clean, Renewable, 

and Efficient Energy Act. 

• Disrupting these established, valuable commercial relationships would cause 

adverse economic consequences, not to mention the environmental harm that 

would result from diverting these dependable sources of energy recovery to 

landfills and replacing them with fossil fuel that would generate much higher 

greenhouse gas emissions. 

• Even though TWC believes it has amply demonstrated that the use of treated 

wood for energy production is a clear-cut example of a valuable non-waste 

commodity, we proposed the following language that would offer EPA extra 

assurance in formulating rule language that would apply to treated wood: “If the 

non-hazardous, secondary material is transferred from the generating site or 

organization to the combustion site under a contractual agreement throughout its 

transfer, the Agency has determined that such a transfer does not constitute a 

‘discard,’ and therefore the secondary material is not a ‘waste’ and may be 

combusted as a boiler fuel.” 

For all these reasons, treated wood used in energy recovery is indistinguishable from 

resinated wood – it is not discarded and is managed as a valuable non-waste commodity. Given 

that EPA laid out its analysis of this kind of non-waste determination in the proposed rule, it is a 

logical outgrowth of that reasoning to conclude in the final rule that the same categorical nonwaste determination should apply to treated wood. Failing to do this will not only be arbitrary 

and capricious, it will disrupt long-standing commercial arrangements that depend on treated 

wood secondary materials for fuel, creating interruptions in fuel supplies, economic losses, 

needless diversion of valuable fuel to landfills, increased greenhouse gas emissions, and potential 

job losses. 
I would appreciate it if you would share this letter with the other federal officials who 

attended the meeting, as I do not have e-mail addresses for most of them. Please let me know if 

you have any questions. 

 Sincerely, 

 Jeffrey T. Miller 

 President and Executive Director 

Att. 

cc: James Berlow (berlow.jim@epa.gov) 

Kevin Bromberg (kevin.bromberg@sba.gov)