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EO12866_NHSM Categorical 2050-AG74 NPRM Preamble_20130828

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 241

[EPA–HQ–RCRA–2013–0110; FRL_XXXX]

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 Non-Hazardous Secondary Materials (NHSM) rule, initially promulgated on

March 21, 2011, and amended on February 7, 2013,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 the February 2013 amendments If material is a solid waste 

under RCRA, a combustion unit burning it is required to meet the Clean Air Act (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. In the February 7, 2013 rule, EPA listed particular nonhazardous secondary materials as “categorical non-waste fuels” provided certain conditions are 

met. Persons burning these non-hazardous secondary materials do not need to evaluate them 

under the general case-by-case standards and procedures that would otherwise apply to nonFormatted: Left
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hazardous secondary materials used in combustion units. EPA also indicated in the February 

2013 amendments 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 

non-waste fuels: (1) Construction and demolition (C&D) wood processed from C&D debris 

according to best management practices, (2) 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 the boilers of which are designed to burn 

solid fuel, and (3) Creosote treated railroad ties that are processed and combusted in units 

designed to burn both biomass and fuel oil. Refer to Section V of the preamble or to the 

proposed regulatory text for the full description of the non-hazardous secondary materials

covered by this proposed rule.

DATES: Comments must be received on or before [INSERT DATE 60 DAYS AFTER 

PUBLICATION IN THE FEDERAL REGISTER].

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.

 E-mail: Comments may be sent by electronic mail (e-mail) to rcra-docket@epa.gov, 

Attention Docket ID No. EPA–HQ–RCRA–2013-0110. 

 Fax: Fax comments to: 202–566–9744, Attention Docket ID No. EPA–HQ–RCRA–

2013–0110.

 Mail: Send comments to: RCRA Docket, EPA Docket Center, Mail Code 28221T,

28221T, Environmental Protection Agency, 1200 Pennsylvania Avenue, N.W., 

Washington DC 20460, Attention Docket ID No. EPA–HQ–RCRA–2013–0110. 
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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 e-mail. The http://www.regulations.gov website 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 e-mail comment 

directly to EPA without going through http://www.regulations.gov, your e-mail 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 
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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?
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Categories and entities potentially affected by this action, either directly or indirectly, 

include, but may not be limited to the following: 

Generators and Potential Usersa 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

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?
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1. Submitting CBI. Do not submit this information to EPA through 

http://www.regulations.gov or e-mail. 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.
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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 website at http://www.epa.gov/epawaste/nonhaz/define/. EPA posted a copy 

of the proposed action on this website, 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 Non-Waste 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
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4. Scope of Proposed Categorical Non-Waste 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 Non-Waste Listing for PRRs

4. Rationale for Proposed Listing

5. Summary and Request for Comment

C. CresosoteCreosote-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)

BC. 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
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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 non-waste 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), 
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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

CISWI Commercial and Industrial Solid Waste Incinerator

CTRT CresosoteCreosote-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
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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 
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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 only 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 non-hazardous 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: 

 

1 40 CFR 241.2 defines “non-hazardous secondary material” as meaning “a secondary material that, when discarded, 

would not be identified as a hazardous waste under 40 CFR part 261 of this chapter.”
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 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. 

 Overall, today's action -- the agency's proposed addition of three NHSMs to the 

categorical listings as non-wastes -- reflects the agency's commitment to advance 

sustainability objectives in its actions, including in its rules development. Today’s 

action furthers the agency’s goals that are consistent with the themes of this 

Administration, as well as with one of its crosscutting fundamental strategies. The 

agency’s goals are (1) to generally minimize materials use by encouraging that 

secondary materials be treated as a resource; (2) to conserve natural resources, by 

encouraging that resources be reused wherever appropriate in place of virgin 

materials; and (3) to grow the green economy, by encouraging business opportunities 

that arise from these types of practices.

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, 

Formatted: List Paragraph, Indent: Left: 0.5", Bulleted +

Level: 1 + Aligned at: 0.25" + Indent at: 0.5"

Formatted: Font:
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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)). 
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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:

4 EPA issued

revised contaminant legitimacy criterion for NHSMs used as fuels to provide 

additional details on how contaminant-specific comparisons between NHSMs and 

traditional fuels may be made. The revisions include: (1) the ability to compare 

groups of contaminants where technically reasonable; (2) clarification that “designed 

 

2 See October 14, 2011, Letter from Administrator Lisa P. Jackson to Senator Olympia Snowe. See docket A copy 

of this letter has been placed in the docket for today’s proposed rule (EPA-HQ-RCRA-2008-0329-1873).

3 See 78 FR 9112 (February 7, 2013) for a discussion of the rule and the Agency’s basis for its decisions.

4 Under 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 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.

Formatted: Font: Times New Roman

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Superscript/ Subscript

Formatted: Font: Times New Roman
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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 non-waste 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 non-waste 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;

 

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.
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(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 subpart 241.4, entitled “Non-Waste 

Determinations for Specific Non-Hazardous 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 
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the categorical listing. Please refer to Section IV.C (How Will EPA Make a Categorical NonWaste 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 Agency7and 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 

 

6 78 FR 9111, February 7, 2013 (page 9153)9172 in a section called “Other Materials for Which Additional 

Information Was Not Requested”)

7 Comments 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; GeorgiaPacific LLC (GP) EPA-HQ-RCRA-2008-0329-1902-A1; National Alliance of Forest Owners (NAFO) EPA-HQRCRA-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-HQRCRA-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-HQRCRA-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.
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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 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 these 

materialsthe processed creosote-treated railroad ties as non-waste fuels when combusted in units 

 

8 The 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 creosote-treated railroad ties for energy 

recovery, (2) the types of boilers (e.g., kilns, stoker boilers, circulating fluidized bed, etc.) that burn creosote-treated 

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 nonindustrial 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)
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designed to burn both biomass and fuel oil and is today proposing to list them as categorical nonwastes 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 non-waste 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 non-wastes 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, 

 

10 For a full discussion regarding the petition process for receiving a categorical non-waste determination, see 78 

FR 9111, February 7, 2013 (page 9158).

11 Supplementary 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).
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after balancing the legitimacy criteria with other relevant factors. (e.g. the non-hazardous 

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 non-wastes 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 non-wastes 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 non-hazardous treated wood be categorically listed—a broad category that would 

include creosote-treated railroad ties. Other treated wood addressed in the petition included 

waterborne borate-based preservatives, waterborne organic-based preservatives, waterborne 

copper-based 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 cresosotecreosote treated wood 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, 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
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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 

part 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 cellulosic 

biomass” and is already excluded from being a solid waste, we believe that today’s proposal 

 

12 Materials Characterization Paper: Construction and Demolition Materials. February 3, 2011. EPA-HQ-RCRA2008-0329-1811
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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 co-mingled 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 

 

13 Clean 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 lead-painted wood, treated wood containing contaminants, such as 

arsenic and chromium, metals and other non-wood materials. (See 78 FR 9139, February 7, 2013)
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(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), appear to beare essential to ensureensuring 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 non-waste 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 

 

14 This 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)

Formatted: Font: Italic
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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 However, theThe 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 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 

 

16 Recordkeeping 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).

17 While 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. 

18 Comments 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.
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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 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 lead-painted 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.
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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 Non-Waste 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-

 

19 If a person does not believe that the processed C&D wood meets the categorical listing, the processed the C&D 

wood may still be considered a non-waste 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).
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wood materials (e.g., polyvinyl chloride and other plastics, drywall, concrete, aggregates, dirt, 

and asbestos), and wood treated with creosote20, pentachlorophenol, chromiumchromated 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 X-ray 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., small-sized 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 lead-painted 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 

 

20 Although 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.
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as a non-waste 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 

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 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 creosote-treated wood (PAHs, dibenzofuran), pentachlorophenoltreated wood (pentachlorophenol, dioxins), CCA-treated 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 

non-combustible material will significantly increase the material’s energy value. Finally, 

 

21 This 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.” 

22 CAA 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).
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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 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 section 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.

 

23 Results 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.” Available in EPA-HQRCRA-2013-0110.
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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 
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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. Any unit burning processed C&D wood can clearly burn clean wood and 

biomass materials, as well. EPA has thereforeEPA 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 lead-based paint 

 

24 Appendix A of April 26, 2013, submittal from Susan Bodine on behalf of BPA and CMRA,. available in the 

Docket at EPA-HQ-RCRA-2013-0110.

25 USEPA, 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.
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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 

Wood26,27,28

 

26 Sources: 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., available in the Docket at EPA-HQ-RCRA-2013-0110

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

28 Upper Prediction Limit (UPL) calculations were made by commenters using EPA’s ProUCL software, using 

either a lognormal distribution or nonparametric statistics, as appropriate.

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

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

Formatted: Tab stops: Not at 3.25" + 6.5"

Formatted: Font color: Auto
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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 

 

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.

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

Formatted: Font: Bold
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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 
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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 non-waste 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: 

o Facilities using positive sorting must either: (1) exclude painted wood 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. 

o 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 lead-painted wood, 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.
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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 pollspoles, 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.

 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 

 

31 Based 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.
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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 non-wastes 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 

 

32 On 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/
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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 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 

 

33 At 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.

34 The 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.
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as the feasibility of reducing pentachlorophenol concentrations in processed C&D wood by 

excluding or removing utility pollspoles 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 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, CCA-treated 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 CCA-treated 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 CCAtreated 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 pre-sorted wood as 

untreated wood, had provided extensive training to its employees. The third facility correctly 

 

35 Where 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). 

36 Fattah, Hassan Abdel, et al. “Online Sorting of Recovered Wood Waste Using Automated X-Ray Technology” 

Final Report; November 30, 2009. See p. 2. Available in EPA-HQ-RCRA-2013-0110

37 Blassino, Monika, et, al. “Methods to control Fuel Quality at Wood Burning Facilities.” Available in EPA-HQRCRA-2013-0110.
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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 Stain38) 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 treated wood 

from untreated wood39 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 

 

38 PAN 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.

39 The 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.
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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. 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 

 

41 Management 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.
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debris, but that provide added assurance that C&D processing facilities are producing a nonwaste 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 

B. Paper Recycling Residuals (PRRs)

1. Detailed Description of PRRs.

 

42 Section 241.4 lists the categorical or “Non-waste determinations for specific non-hazardous secondary materials 

when used as a fuel.”

43 These sections state that “for operating units that combust non-hazardous secondary materials as fuel per §241.4 

of this chapter, you must keep records documenting that the material is listed as a non-waste under §241.4(a) of this 

chapter.”
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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 

 

44 See Attachment 4, page 1, footnote 2 of AF&PA’s Comments to Docket: EPA-HQ-RCRA-2008-0329-0871.

45 Because the incoming feedstock may contain a number of other materials, including metals, metals may also be 

recovered and sent for recycling. 

46 Although 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. This is posted within the docket for today’s rulemaking (Docket: EPA–HQ–RCRA–2013-0110).
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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 plant49 or commercial biomass gasification plant.50

In the March 2011 NHSM final rule, the term Recycling Process Residuals (RPRs), 

referredThe Agency previously understood PRRs to as Paper Recycling Residuals (PRRs) in 

today’s proposal, was another be a term industry commonly uses forused to refer to Old 

Corrugated Container (OCC) rejects.51 Since publication of thatthe 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 

 

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).

49 A 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.

50 National 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).

51 Another 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).
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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 cost-effectively 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 

 

52 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).
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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 Non-Waste 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 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 

 

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

Formatted: Not Highlight
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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, 

 

54 National 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).
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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 waste-like, we 

consider the following attributes: 

 PRRs that are burned as a fuel are never discarded.

 

55 AF&PA Technical Bulletin, Attachment 4, Recycling Process Residuals, p 2. September 10, 2009.
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 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 product-like 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 decide to 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

includeare: 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 

 

56 We 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 by balancing the legitimacy criteria with other relevant factors. (See 78 FR 

9156, February 7, 2013.)
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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 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 

 

57 See AF&PA Comments, p 62, to Docket document ID: EPA-HQ-RCRA-2008-0329-0871.

58 76 FR 15522

59 76 FR at 15523.

60 For 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).; Docket: EPA–HQ–RCRA–2013-0110.
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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.

 

61 See “AF&PA-AWC Responses to EPA’s Questions on PRR and Railroad Ties (May 2013).” This is posted in the 

docket for today’s proposed rule (Docket: EPA_HQ-RCRA-2013-0110).
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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

Contaminantsa

Clean 

Wood/Biomass Coalb PRRsc,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

Mercurye 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

Seleniumf ND – 9 ND – 74.3 ND – 3.29

Fluorineg ND – 300 ND – 178 <17 – <26

a All 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://www.epa.gov/ttn/atw/boiler/boilerpg.html.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.

e Other 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.

f Other 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.

g Fluorine was not detected in any samples; the highest non-detect level is listed.

 

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.

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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, 

 

63 National 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).

64 Section 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 20o C), the 
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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 on-site. 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 

 

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.

65 Concentrations 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).
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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 

 

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. 

67 National 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).
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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. We 

note, however, that information regarding PRRs that are managed off-site is very limited.While 

the information we have generally indicates that these PRRs are managed much the same way as 

those 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. CresosoteCreosote-Treated Railroad Ties (CTRTs)6970

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 

by-product of coal tar distillation, and coal tar is a by-product of making coke from coal, 

 

68 The 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.

69 As 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. 

70 As 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.
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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 P2.71 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.72 

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;73 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 end-users, including those combusting the material 

 

71 AWPA 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 within the requirements of standard specifications.. Coal tar or petroleum oil may 

also be mixed with coal-tar creosote, in various proportions, to lower preservative costs. AWPA Standard P2 

provides specifications for coal-tar solutions. April 2010. Forest Products Laboratory. 2010. Wood Handbook. 

General Technical Report FPL-GTR-190. Madison, WI. AWPA 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.

72

 American Forest & Paper Association, American Wood Council – Letter to EPA Administrator, December 6, 

2012, is included in the docket for today’s rule.

73 In some cases, the reclamation company sells the crossties to a separate company for processing. 

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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).74 

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.75 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 

 

74 American Forest & Paper Association, American Wood Council – Letter to EPA Administrator, December 6, 

2012, is included in the docket for today’s rule.

75 M.A. Energy Resources LLC, Petition submitted to Administrator, EPA. February 2013 is included in the docket 

for today’s rule (docket: EPA-HQ-RCRA-2013-0110.
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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 as a fuelfor energy recovery, the 

material is then transferred from the storage location using a conveyor belt or front-end 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 fuels76. 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.

 

76 American Forest & Paper Association, American Wood Council – Letter to EPA Administrator, December 6, 

2012, is included in the docket for today’s rule.
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The March 2011 NHSM final rule indicated that even though most creosote-treated wood 

is non-hazardous, the presence of hexachlorobenzene, a 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 creosote-treated 

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 these materialscreosote-treated wood may result in significant 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.77 

This material, therefore, was considered a solid waste when burned and units combusting it 

would be subject to the section 129 CAA emission standards if burned, even if burned as a fuel. 

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 CTRTs all railroad ties combusted in any unit .

78

 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. 

 

77 76 FR 15483

78American Forest & Paper Association, American Wood Council – Letter to EPA Administrator, December 6, 

2012. A copy of the letter can be found in the docket for today’s rule.
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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 to 

date 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 enduse 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. 79 Another respondent claimed that data80 show that a number of 

 

79 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. 

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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. 

81

 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 

 

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. Included in the 

docket for today’s rule.

80 American Forest and Paper Association and American Wood Council’s letter to George Faison, EPA. March 7, 

2013, is included in the docket for today’s rule.

81 Petition for Determination Identifying Non-Hazardous Secondary Treated Wood Biomass as a Non-Waste under 

40 C.F.R. §241.4 (a). Treated Wood Council. April 2013. Available in the docket for today’s rule.

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fuel, and waste derived solid fuel.

82, 83 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.84 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.85 

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 non-waste 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 has indictedexplained that this 

 

82 To 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.

83American Forest and Paper Association and American Wood Council’s letter to George Faison, EPA. March 7, 

2013, is included in the docket for today’s rule.

84American Forest and Paper Association and American Wood Council’s letter to George Faison, EPA. March 7, 

2013, is included in the docket for today’s rule. 

85 Examples 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,andfuel, and landfill gas. February 2013. Available in the docket for today’s 

rule.

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standard is to avoid the possibility that discard could be occurring in some 

situations.86 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 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, the 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. AnyAccording to the respondents, any other 

conclusion would lead to the absurd, according to respondents, 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 claimexplained that several local utilities 

in the northern Midwest utilize CTRTs for purposes of power generation althoughbut

they have not identified the specific facilities. 

 Laboratory analyses for contaminants known or reasonably suspected to be present 

in creosote-treated railroad ties, and contaminants known to be significant 

components of creosote, specifically polycyclic aromatic hydrocarbons (i.e., PAH-

 

86 See 78 FR 9149
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16), dibenzofuran, cresols, hexachlorobenzene, 2,4-dinitrotoluene, biphenyl, 

quinoline, and dioxins:87

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.88 

Information also has been provided by M.A. Energy Resources, LLC89 and the Treated Wood 

Council regarding cross-tie derived fuel.90 In addition, information on contaminant levels found 

in CTRTs has been provided by the Association of American Railroads.91 Based on the 

additional data and information submitted to the Agency, it indicates that 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 

 

87 The 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 Data 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.

88 AF&PA Ibid.

89 M.A. Energy Resources, LLC 40 CFR Part 241, SupbartSubpart B—Crosstie Derived Fuel. February, 2013. A 

copy of this document can be found in the docket to today’s rule.

90 Letter from Jeffrey Miller, Treated Wood Council to Lisa Feldt. December 17,2012. A copy of this letter can be 

found in the docket to today’s rule.

91 Evaluation of Used Railroad Ties Treated with CresosoteCreosote for Polynuclear Organic Material which 

includes Polynuclear Aromatic Hydrocarbons. January 2013. URS Corporation on behalf of American Association 

of Railroads. A copy of this document can be found in the docket for today’s rule.
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CTRTs when used as a fuel in combustion units designed to burn both biomass and fuel oil.92 

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 non-waste 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 right-of-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 emphasizesstates 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.93 The December 6 letter claims that a robust market for 

 

92 Fuel 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.

93 As 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.
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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 such 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 have beenremoved 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 meetmeets the legitimacy criteria, or if not 

meetmeeting 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 the 

railroad tiesCTRT 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 
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NHSM into a non-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 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. 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 isare 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 

crosstiesCTRTs are ground, there may be additional screening to bring the material to 

a specified size. 

b. Legitimacy Criteria. 

As discussed above, EPA can decide to 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 includeare: 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 

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of contaminants at levels comparable to or less than those in the traditional fuel the unit is 

designed to burn.94 

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 are stored forstorage does not exceed reasonable lengths of 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.95

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 would ostensiblycould replace 

clean wood that has an average as-fired heating value of 5,150 Btu/lb, but can range aswith a low 

 

94 We would 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. 

95 Prior 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.
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as-fired heating value of 3,440 Btu/lb.96 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.97 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 respondentspetitioners 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 a one CTRT sample. 

The sample was obtainedcame from a CTRT pile located at of 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 a 

documentdocuments comparing contaminant concentrations in CTRTs with traditional fuels. 

AF&PA compiled data from various sources in this document.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 

 

96 Fuel 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.

97 See 76 FR 15541.
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data received as it compares to contaminants found in two traditional fuels that 

respondentspetitioners claim are used, in varying amounts, at facilities burning processed CTRT 

for energy recovery. 

TABLE 3 – Contaminant Ranges in Traditional Fuels & CTRT (in parts per million)

Contaminant Biomass a Fuel Oil a CTRT bCTRTb

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

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 

Elements

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 

Compound (VOC) 

Hazardous Air 

Pollutants

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 c1.6 – 27 6,072 – 19,810 0.383

Semivolatile 

Organic Compound 

(SVOC) Hazardous 

Air 

PollutantsboSemiSe

miSSHazardousPoll

utants

Biphenyl -- 1,000 – 1,200 137 – 330

16-PAH d-- 3,900 – 54,700 6,6416641 – 21,053

6666666416,64212121,

05321,053333333333,3

20

Dibenzofuran -- -- 570 – 1,500

Quinoline -- -- 40.2

Cresols -- -- 1.51

Hexachlorobenzene -- ND ND

Formatted Table

Formatted Table

Formatted Table

Formatted Table
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2,4-dinitrotoluene -- ND ND

Lindane -- -- 0.238

11 Additional 

SVOC

-- -- 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.

c. Total 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 claim exist98.described.99 

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 

 

98 We note that contaminant data received also compared coal to CTRT 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 CTRT 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.

99 We note that contaminant data received also compared coal to CTRT 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 CTRT 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.

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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.100 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, 

includingEPA compared contaminant levels in CTRT 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. UnitsTherefore, 

CTRTs have comparable contaminant levels to other fuels combusted in units designed to burn 

both biomass and fuel oil, thereforeand as such, meet this criterion.

As stated in the preamble to the FebFebruary 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 9111, page 9149.)) Combustion units are often 

 

100 We 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. 
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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.

Petitioners claim 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 havedid not identified anyidentify specific such units. 

In a March 2013 letter,101 petitioners stated that the overwhelming majority of creosote-treated 

railroad ties burned at paper mills are burned in boilers that are fully capable and permitted to 

 

101 American Forest and Paper Association and American Wood Council’s letter to George Faison, EPA. March 7, 

2013., is included in the docket for today’s rule.
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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. 102 

Additional information was submitted by petitioners subsequent to this claim, 

however.103 The new information indicates that while stoker, bubbling bed or fluidized bed 

boilers at major source104 paper mills are currently designed to combust both fuel oil and CTRT, 

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, EPA collected information from owners 

and operators of combustion units across a wide variety of industries.. In that context, based on 

the information submitted by industry (including petitioners and others), EPA concluded that 

units which were identified in response to the information collection effort as combusting liquids 

or gases withthat combust solid fuels in fact commonlygenerally used fuel oil or natural gas only 

 

102 American Forest and Paper Association and American Wood Council’s letter to George Faison, EPA. March 7, 

2013., is included in the docket for today’s rule. M.A. Energy Resources LLC, Petition submitted to Administrator, 

EPA. February 2013 is included in the docket for today’s rule (docket: EPA-HQ-RCRA-2013-0110.

103 E.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.

104 Section 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.
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as a startup fuel. In addition, 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 Fed. Reg 32006, 32017. For these 

reasons, EPA treated these units as units designed to combust solid fuels (including biomass). 

Further, EPA is awarethe information submitted for the ICR indicated that some biomass units 

may combust small amounts of 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.

EPA solicits comment on whether it is appropriate to compare contaminant levels in CTRTs to 

those in fuel oil in light of these circumstances.

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. Dibenzofuran (CAS # 132-64-9) is and listed as a HAP under in CAA section 

112 and dioxins are a pollutant under CAA sections 112 and 129. 

RespondentsPetitioners submitted an explanatory document in response to the Agency’s 

request.105 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 

 

105 American Forest and Paper Association and American Wood Council – Letter to George Faison, EPA March 7, 

2013 is included in the docket for today’s rule.

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compounds, viz., polychlorinated dibenzo p-dioxins and dibenzofurans (PCDD/F – often 

collectively termed dioxins). 

The respondents’petitioners’ data confirms the presence of dibenzofurans. 

RespondentsPetitioners 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 the respondentspetitioners, 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 respondentsthe 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.106107 

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.

 

106 When 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.

107 When 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.
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As discussed previously, the March 2011 NHSM final rule noting the presence of 

hexachlorobenzene and dinitrotoluene, suggested that creosote -treated wood containedlumber 

include contaminants at levels that wereare not comparable to or lower than 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 CTRT is a categorical non-waste when combusted in 

units burningdesigned 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. In, and in fact, the 2012 data referenced in today’s proposal showed nondetects for those two contaminants as indicated previously.

c. Other Relevant Factors. in a Categorical Non-Waste Determination for CTRT

In their request for a categorical listing of CTRTs, the respondents 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 respondentspetitioners 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 non-waste fuel. In fact, the respondentsThey 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, the traditional fuel that is most comparable to CTRTs.. Thus, the 

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respondentspetitioners request that the Agency re-define or ignore the “design to burn” concept, 

as currently interpreted for the purposes of this categorical listing. 

As part of their reasoning, the respondentsIn arguing that the Agency can re-define or 

ignore the “design to burn” concept, petitioners identified additional relevant factors to be 

considered in a categorical listing for CTRT. Specifically:

 CTRT 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.108,109

 CTRT 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.

 CTRT 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 CTRT and removal of oil delivery mechanisms from units 

designed to combust fuel oil and CTRT is not an indication that the material is being 

“discarded” and is thus a solid waste.110 As discussed previously, units will be 

switching from fuel oil to natural gas. Such units designed to combust both fuel oil 

 

108 Petitioner 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. Document available in the docket to today’s rule.

109 To 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. Included in the docket for today’s rule.

110 Petitioners 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.
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and CTRT 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, in that onefor a boiler that can burn CTRTs and also has the ability to burn fuel oil

and CTRTs, the CTRTs would be considered a non-waste fuel, whereas another boiler that can 

also burn CTRTs, but does not have the ability tocannot 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 respondentspetitioners that the Agencyagency 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 should or can simply ignore any of the 

legitimacy criteria, or other relevant factors, especiallyincluding the contaminant legitimacy 

criterion, which is what the respondents are recommending.. In particular, the 

respondentspetitioners argue that any biomass material, no matter what it is contaminated with,

regardless of the contaminant or how contaminated it is, should be considered a non-waste fuel. 

Thus, for example, the industry would (and has) argued that pentachlorophenol treated wood that 
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contains elevated concentrations of pentachlorophenol and dioxins, both highly toxic 

compounds, and neither of which have fuel value, should be considered a non-waste fuel.

111

 

We believe that such a result would be inconsistent with the conceptPurchase of the 

material as a commodity for its fuel value is a factor, but not determinative when considering 

whether discard. In addition, in the case has occurred. Further, elevated levels of CTRTs, to the 

extent that a combustion unit is not designed to burn fuel oil, the traditional fuel that appears to 

be most comparable to CTRTs, the Agency would be allowing toxic contaminants that are 

present in the CTRTs several orders of magnitude higher than whatremaining in the material can 

indicate that the material is found in the traditional fuel. being discarded. While the Agency 

recognizes that other relevant factors may be considered when one of the legitimacy criteria are 

not met, we do not agree 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 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 CTRT is not functionally the same 

 

111 Petition for Determination Identifying Non-Hazardous Secondary Treated Wood Biomass as a Non-Waste under 

40 C.F.R. §241.4 (a). Treated Wood Council. April 3, 2013. A copy of the petition is included in the docket for 

today’s rule.

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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 CTRT is integral to the production process. In a previous 

categorical determination for resinated wood, the Agency did conclude that considerationthe 

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 such factors would allow EPA to 

undermine the legitimacy criterion, especially if it is inconsistent with the conceptresonated 

wood. Similar information was not received for CTRT.

Nevertheless, we agree with petitioners that the removal of discard. By adopting the 

approach suggested by the respondents, the Agency would be doing just that—that is, allow any 

biomass-based material that oil delivery mechanisms from units designed to combust fuel oil and 

CTRT is significantly contaminated to be burned in any combustion unitnot necessarily an 

indication that the material is being “discarded.” As discussed above, units designed to combust 

both fuel oil and CTRT, including residentialstoker, bubbling bed and commercialfluidized bed

boilers. Therefore, we are not adopting the suggestions of the respondents and balancing the 

legitimacy criterion against the “design, 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” factor. Nevertheless, because the respondents have raised 

this concern,112 we further solicit comment on this that material.

5. Summary and Request for Comment.

 

112 American Forest and Paper Association and American Wood Council’s letter to George Faison, EPA. March 7, 

2013 is included in the docket for today’s rule.
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Based on all the available information, 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. 

The Agency invites comments on this proposed non-waste categorical determination.

At the same time, the Agency is considering an approach (based on the information 

described above) that would include as a categorical non-waste, CTRT that is: 1) combusted as 

part of normal operations in existing units that are designed to burn both CTRT 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 CTRT 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 CTRT 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. 113

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 CTRT is not being discarded. Such conditions include:

 The CTRTs must be burned in an existing stoker, bubbling bed or fluidized bed boilers; --

 

113 The approach under consideration, if adopted, is in addition to the proposed categorical listing of CTRT 

combusted in units designed to burn biomass and fuel oil. It is not an alternative approach or replacement for that 

proposed listing.

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 The CTRTs can comprise no more than 40% percent of the fuel that is used on a monthly 

basis;114

 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 CTRT 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 CTRT 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 gas115

would not render the CTRT 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 CTRT as a 

product fuel does not make it a waste on switching to the cleaner natural gas for the boiler.

 

114 Statements 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.

115 The 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-andyou/affect/natural-gas.html)
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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, e.g. marine pilings.. The Agency also requests comments specifically on the use of 

multiple fuels for contaminant comparison described above 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, and 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. Finally, in reference to the 

respondent’s suggestions discussed above, the Agency requests comment on the appropriateness 

of balancing elevated levels of contaminants in the NHSM with evidence that materials are 

commodities, and thus are not discarded, whether or not the unit is designed to burn fuels with 

elevated contaminant levels.

VI. Technical Corrections

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AA. 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 “The following non-hazardous secondary materials that have not been 

discarded and meet the legitimacy criteria specified in (d)(1) of this section when used in a 

combustion unit (by the generator or outside the control of the generator): (i) Reserved; (ii) 

Reserved. Sections (i) and (ii) were reserved in response to the new 40 CFR 241.4(a)(1) 

categorical non-waste standards in the February 7, 2014 rulemaking. Those standards had 

eliminated the need for previous standards under (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) as 

follows: (b)(2) Reserved.

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 is stated as follows: “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 this 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.” The proposed regulatory text, 
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therefore, is “...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:” 

BC. 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 cement kilns, as well ascombustion units (not just boilers.). 

Specifically, that section of the rule identifies the legitimacy criteria for non-hazardous 

secondary materials relating to contaminant comparisons between the traditional fuel(s) a unit is 

designed to burn and the NHSM. That section reads as follows:

“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 boiler ([(emphasis added),)], whether or not the 

combustion 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.”

As indicated, the sentence states that a person may choose a traditional fuel that can be 

burned in any type of boiler, 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. 
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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. Thus, the proposed regulatory text is “...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 

combustion unit is permitted to burn that traditional fuel. . . . ”

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 rule116 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 rule117 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 

 

116 76 FR 15456, March 21, 2011 (page 15545) 

117 76 FR 15456, March 21, 2011 (page 15546)
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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 non-waste 

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 costs118 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 

 

118 Excluding minor administrative burden/cost (e.g. rule familiarization).
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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.119 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. 

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 Order 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.

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 

 

119 U.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.

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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 unitlevel cost savings are estimated, on average, to be 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. 

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 
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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.120 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 part 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. 

 

120 U.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]

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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 EPAHQ-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 [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER], a comment to 

OMB is best assured of having its full effect if OMB receives it by [INSERT DATE 30 DAYS

AFTER PUBLICATION IN THE FEDERAL REGISTER]. 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 
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not-for-profit 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 USC 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 non-waste 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 arise from participation in a voluntary Federal program. 
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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 
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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: (1) any potential change in 

emissions from combustion units subject to the CAA section 112 standards, relative to baseline 
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management patterns, and (2) whether children make up a disproportionate share of the 

population living near the affected combustion units. Therefore, to assess the potential for the 

proposed rule to result in 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.

121

 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 of age is generally the same as the national average.122 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, low-income 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 landfill-related emissions, discharges, or other negative activity potentially 

 

121 The 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 out-of-service railroad crossties for their 

thermal value.

122 U.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
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impactingaffecting 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. 

The public is invited to submit comments or identify peer-reviewed studies and data that 

assess effects of early life exposure to the specific NHSMs addressed in this proposal.

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 No. 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. 

This proposed rulemaking does not involve technical standards. Therefore, EPA is not 

considering the use of any voluntary consensus standards.

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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 lowincome 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 thethese combustors would otherwise burn. While we cannot definitively 

determine that there would be no cases of an incremental increase in exposure (negative impacts)

if the affected facilities accept more, or a different combination of non-hazardous secondary 

materials, the boilers indirectly affected by this action would Furthermore, these units remain 

subject to the CAA section 112protective standards. established under CAA Section 112.

Potential indirect impacts on minority and/or low-income citizens have been assessed by 

looking at the following: 1) any change in emissions or the emissions mix from combustion 

units subject to the CAA section 112 standards that may accept increased quantities of one or 

more of the three NHSMs addressed in this proposed rule, 2) any change in emissions resulting 

from the diversion of these NHSMs from their current baseline management methods, and 3) 

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any other impacts related to material diversion (e.g., noise, aesthetics, water pollution, etc.). 

These factors were considered in conjunction with our assessment of the demographic 

characteristics surrounding the affected areas.

Our environmental justice demographics assessment conducted for the prior 

rulemaking123 remains relevant to this action. This assessment124 reviewed the distributions of 

minority and low-income groups that might be impacted by the living near potentially affected 

sources indirectly affected by this proposal. We focused on censususing U.S. Census blocks

within. A three miles-mile radius (approximately five kilometers) of the indirectly affected 

sources. We then determinedwas examined in order to determine the demographic composition 

(e.g., race, income, etc.) of these census blocks and compared themfor comparison to the 

corresponding national compositions. Our findings indicateFindings 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 share125 of the population was found to be 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) is alsowas higher than the national average (13 percent). 

We In addition to the demographics assessment described above, we also considered 

the potential for non-combustion environmental justice concerns related to the potential 

 

123 U.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.

124 U.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.

125 This figure is for overall population minus white population and does not include the Census group defined as 

“White Hispanic.”
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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 indirectly 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 low-income 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 non-adverse 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, in conjunction with the corresponding CAA rules, may help to 

accelerate the abatement of any existing stockpiles of the targeted NHSMs. these NHSM 
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materials. To the extent that these stockpiles may represent 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 materials. Thus, anyNHSMs. Any potential materials management 

changes stimulated by this action, and corresponding impacts to minority and low-income 

communities, areshould be considered to be indirect impactsresponses 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:

Gina McCarthy, 

EPA Administrator.
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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 B – Identification of Non-Hazardous Secondary Materials that are Solid Wastes 

When Used as Fuels or Ingredients in Combustion Units

2. Section 241.2 is amended by the addition of the following definitions in 

alphabetical order 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.

* * * * *
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Paper recycling residuals means the co-product material generated from the paper 

recycling process and is 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. 

* * * * *

3. Section 241.3 paragraphs (b)(2) (c)(1) and (d)(1)(iii) are revised 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 nonhazardous secondary material has not been discarded is a legitimate fuel as specified in 

paragraph (d)(1) of this section and on the following criteria:

* * * * *
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(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 non-hazardous 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 the addition of paragraphs (a)(5) through (a)(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 
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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, chromiumchromated 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: (1) exclude all painted wood from the 

final product fuel, (2) use X-ray Fluorescence 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. 

(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., small-sized particles that may contain relatively high concentrations of lead and other 

contaminants) and either: (1) remove painted wood, (2) use X-ray Fluorescence to detect and 

remove lead-painted wood, 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.

(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
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burn both biomass and fuel oil. 

* * * * *