Faison, George 

From: 

Sent: 

To: 

Cc: 

Subject : 

Faison, George 

Friday, July 24, 2015 12:28 PM 

Miller, Jeff 

'Luxton, Jane C.' 

Re: info 

Attachments: C&D RR Tie Info Summary from Proposed Rule.docx; C&d sampling. pdf 

Hi Jeff- as requested, attached are summaries of the data submitted by industry as discussed in the Aprill4, 

attached 

2014 proposed rule for both C&D wood and creosote ties. As an example of contaminant data received, also 

is a summary chart on C&D testing info. 

Let me know if you have any questions. 

George 

From: Miller, Jeff <Jeff_Mi ller@treated-wood.org> 

Sent : Friday, July 24, 2015 2:06AM 

To: Faison, George 

Cc: 'Luxton, Jane C.' 

Subject: info 

Hi George, 

During our call on Tuesday, you promised to send me copies of the information in the creosote and C&D petitions. 

look forward to receiving it. 

Thx, Jeff 

1 
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 

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. (l2l 

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 addresses C&D wood 

generated predominantly from demolition activities. (l3l 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 (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. (l4

l Despite the variety of options, certain practices, which are described 

below in Section V.A.4 (Rationale far Proposed Listing), are essential to ensuring that processing the 
C&D debris produces a legitimate product fuel. In addition to excluding or removing a set list of C&D 

materials known to contain contaminants (e.g., certain types of treated wood), processors must take 

steps to minimize less obvious contaminant sources (e.g., lead-based paint). Consequently, the 

standards proposed in this rule are designed to ensure that the contaminants in the fuel that is burned 

will not be unpredictable, even though the sources of the wood may vary. 

2. C&D Wood Under Cwrrent NHSM Final Rwles 

In both the March 2011 and February 20B ~IHSM final rules, fPA discussed two scenarios under which 

the Agency would consider C&D wood to be a non waste fuel. 1-l#J:irst, "clean" C&D wood can be 

burned as a traditional fuel without any requirement for testing or recordkeeping because it is a " 

clean cellulosic biomass" material indistinguishable in composition from virgin wood. Second, the 

Agency believes that wood recovered from C&D debris (i.e., contaminated wood) can be sufficiently 

processed to meet the legitimacy criteria and, thus, would be a non waste fuel, although combustion 

facilities burning the material would need to keep records documenting the material's non waste status. 

Records would need to document not only how the processing operations meet the definition of 

processing in section 241.2, but also how the fuel product meets the NHSM legitimacy criteria. lJ~+Re 

Agency believes that much of the C&D ll+'Ood recovered from coR5fA:IctioR 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 •.voed currently reco..,ered from Giemo!itioR activities can be sufficiently 

precessed to meet the legitimacy criteria (i.e., the secend scenarie): 

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. !lSJ The commenters' rationale for listing processed C&D wood as a 

non-waste fuel includes the following. 

• It is utilized in combination with other biomass materials to optimize and manage combustion in 

boilers due to its low moisture/high heat characteristics. 

• It is sufficiently processed to remove impurities. 

• From a practical materials management standpoint, C&D materials are not discarded; collection 

of most of these materials is planned for, with C&D recycle sorting and processing yards 

receiving the materials as a destination and the point of generation of the fuel product. 

• Comments detail the processing and test data available for C&D materials, which demonstrates 

their value as a fuel. 

• Commenters noted that EPA has already included clean C&D materials in their proposed clean 

cellulosic biomass definition for traditional fuels, but EPA elsewhere identifies C&D materials 

that are not clean as subject to the legitimacy criteria. 
The commenters argue, therefore, that EPA should remove doubt and list these materials in the newly 

proposed § 241.4(a) as a non-waste fuel given their demonstrated fuel value and the industry that has 

been established for recycling these non-hazardous secondary materials into useful product fuel. 

Expanding further on these comments, several trade organizations submitted information in support of 

a categorical non-waste determination that would list processed C&D wood as a product fuel when 

burned in combustion units. The information suggested that a non-waste listing include all C&D wood 

processed inaccordance 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. 

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. ll9l 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, llO) pentachlorophenol, chromated 

copper arsenate, or other copper, chromium, or arsenical preservatives. In addition: 

(i) C&D processing facilities that use positive sorting-where operators pick out desirable wood from comingled 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 as a non-waste fuel. (

211 

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&O 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), pentachlorophenol-treated 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, (

22l 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, 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.l (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 nonwaste fuel product with contaminants that are no greater than clean biomass, regardless of the 

characteristics (e.g., extent of material segregation prior to arrival at the processing facility} that can 

influence the level of contaminants in the final wood product. Thus, the Agency believes that such 

processing meets the definition of processing in 40 CFR 241.2. 

Further, to ensure that the C&D wood is processed according to best management practices, the Agency 

believes it is important for the processor to certify that they are meeting such best management 

practices, using trained operators. (HI Therefore, we are also proposing that the combustor be required 
to obtain a written certification from the C&D processor(s) that they have used trained operators in 

processing the C&D debris in accordance with best management practices to produce processed C&D 

wood. The combustor has the ultimate responsibility to determine that the C&D wood has been 

sufficiently processed. 

b. Legitimacy Criteria 

In determining whether to list processed C&D wood as a categorical non-waste fuel in § 241.4(a), the 

Agency evaluated the legitimacy criteria in 40 CFR 241.3(d)(1)-that is, whether it is managed as a 

valuable commodity, whether it has a meaningful heating value and is used as a fuel in a combustion 

unit to recover energy, and whether contaminants or groups of contaminants are at levels comparable 

to or less than those in the traditional fuel the unit is designed to burn. To the extent that processed 

C&D wood does not meet one or more of the legitimacy criteria, the Agency may consider other 

relevant factors in determining whether to propose to list C&D wood as a categorical non-waste fuel (40 

CFR 241.4(b)(S)(ii)) (see discussion on formaldehyde below). 

i. Managed as a Valuable Commodity 

Regarding the first legitimacy criterion, EPA believes that C&D trade organizations have demonstrated 

that both processors and combustors manage processed C&D wood as a valuable commodity. 

Specifically, after processing, including grinding to size, processors ship the material to energy recovery 

facilities in covered chip vans or semi-trailers. The material is then stored on-site at the combustion 

facilities in wood fuel storage yards and generally used within 90 days of delivery. Because storage does 

not exceed reasonable time frames, and management is similar to that of virgin wood and biomass, the 

Agency has determined that processed C&D wood meets this legitimacy criterion. 

ii. Meaningful Heating Value and Used as a Fuel To Recover Energy 

With respect to the second legitimacy criterion, EPA believes C&D trade organizations have 

demonstrated that processed C&D wood has a meaningful heating value and is used as a fuel to recover 

energy. Specifically, information submitted to the Agency demonstrates that processed C&D wood has 

an average as-fired energy content of 6,640 Btu/lb, !

24l 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. !

251 According to C&D trade organizations, energy recovery facilities purchase processed 

C&D wood and burn the material as fuel to generate electricity. Thus, EPA has determined that 

processed C&D wood meets this legitimacy criterion. 

iii. Contaminants Comparable to or Lower Than Traditional Fuels 

To address the third legitimacy criterion, C&D trade organizations provided EPA with contaminant 

analyses of more than 220 samples of processed C&D wood from nine combustion facilities in California, 

Maine, Massachusetts, Minnesota, New York, the state of Washington, and Wisconsin. EPA has 

compared the contaminant levels found in the processed C&D wood to the contaminant levels found in 

clean wood and biomass materials since any unit burning processed C&D wood can clearly burn clean 

wood and biomass materials as well. 
Summary 

most 

results for the contaminant comparisons are presented in Table 1, with the contaminants 

likely to be present in unprocessed C&D debris listed first. Specifically, arsenic and chromium are 

ballasts, 

likely present due to CCA-treated wood; lead due to lead-based paint chips; mercury due to light bulbs, 

thermostats and other mercury-containing devices present in buildings; chlorine due to PVC 

due 

and other plastics; sulfur due to plaster or drywall containing gypsum, a sulfate mineral; formaldehyde 

to resinated wood; and pentachlorophenol due to utility poles and other treated wood products 

currently accepted by some combustion 

cle

facilities. Although sources of fluorine in C&D debris are less 

ar, the contaminant's presence may be due to its use in flame retardants incorporated into carpet, 

furniture, and other building materials. 

Table 1-Comparison of Contaminants in Clean Wood/Biomass and Processed C&D Wood 2627 28 

Contaminant 

Contaminants Most Likely to 

be Present in C&D Debris 

Arsenic 

Chromium 

Lead 

Mercury 

Chlorine 

Fluorine 

Sulfur 

Formaldehyde 

Pentachlorophenol 

Contaminants Less Likely to 

be Present in C&D Debris 

Antimony 

Clean Processed Range Wood/Biomass C&D wood 

ND-298 n = 

221 35.9 

ND-340 n= 

212 45.0 

ND-340 n= 

224 53.9 

ND-1.1 n= 

180 0.1 

ND-5400 n = 

173 809 

ND-300 n = 86 45.9 

ND-8700 n= 

183 1300 

1.6-27 n=45 47.6 

ND n = 21 19.7 

ND-26 n =50 2.6 

# 90% Average Maximum samples UPL 

91.8 261 

116 283 

136 482 

0.16 0.7 

1567 3521 

139 313 

2200 7300 

104.2 176.8 

N/A 126 

7.1 16.6 
Table !-Comparison of Contaminants in Clean Wood/Biomass and Processed C&D Wood 26 27 28 

Contaminant Clean R Processed t1 90% 

Wood/Biomass ange C&D wood Average UPL Maximum samples 

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 = SO 4.0 8.6 27.4 

Selenium ND-9 n = 43 0.4 1.0 1.3 

Nitrogen 20Q-39500 n = 75 3900 8000 12600 

With the exception of four contaminants-fluorine, lead, formaldehyde and pentachlorophenol, every 

sample of processed C&D wood's contaminant levels was well within the range of clean wood and 

biomass materials. With respect to these four contaminants: 

• Fluorine: While only one sample out of 45 samples of processed C&D wood exceed the range for 

fluorine in clean wood and biomass, the Agency still considers fluorine to be at levels 

comparable to those found in clean wood and biomass since this lone sample is present within a 

small acceptable range (i.e., 313 ppm is comparable to 300 ppm). (

29301 

• Lead: Despite efforts by C&D processing facilities to remove lead, the data demonstrate that 

some processing facilities do a better job than others, with isolated samples from Massachusetts 

reaching 407 and 437 ppm lead, and one of seven samples from Wisconsin reaching 482 ppm 

lead. While most of the 224 samples detected lead within the range found in clean wood and 

biomass materials (ND-340 ppm), it is important to recognize that each high sample could 

represent a large amount of processed C&D wood produced by an outlier facility. Accordingly, 

an overly broad categorical non-waste listing could include processed C&D wood from facilities 

where the final product consistently contains high lead levels, amounts that would not be 

considered a normal part of clean wood or biomass. In this instance, one facility in 

Massachusetts provided a composite sample for each of seven days, and two out the seven 

samples exceeded the range of lead values found in clean wood and biomass. That could mean 

more than 28 percent of the processed C&D wood produced by that facility exceeds lead levels 

found in clean wood and biomass. C&D processing facilities have options for minimizing lead 

concentrations in the processed C&D wood they produce, and information submitted with the 

contaminant dataset indicates that the two facilities (one in Massachusetts, the other in 

Wisconsin) exhibiting the highest lead levels shared similar lead minimization strategies. 

Although both facilities accept painted wood, neither uses X-ray Fluorescence (XRF) analyzers to 

detect and remove lead-based painted wood. Nor do they require documentation of a building 
inspection that includes testing for lead-based paint. By comparison, the Washington facility 

included in the dataset requires documentation of XRF testing before accepting demolition 

debris from a particular building, and as evidenced by a maximum lead concentration of 26 ppm, 

lead concentrations in the processed C&D wood it burns tested lower than for any other facility 

in the dataset. The Minnesota facility included in the dataset does not accept painted wood, and 

as evidenced by a maximum lead concentration of 110 ppm, lead concentrations in the 

processed C&D wood it burns are also well within the range of clean wood and biomass 

materials. Both the Massachusetts facility and the Wisconsin facility relied solely on removing " 

fines" to control lead levels. Fines are small-sized particles that may contain relatively high 

concentrations of contaminants, and facilities can remove them before and after shredding via 

screens or flotation. EPA does not dispute that the removal of fine particles can reduce the 

levels of lead and other contaminants, particularly for C&D processing facilities using negative 

sorting. Without additional measures, however, this strategy does not appear to remove 

sufficient lead to transform the C&D debris into a product fuel in all cases that would warrant 

processed C&D wood being categorically listed as a non-waste fuel. As a result, the Agency is 

proposing conditions related to lead removal as part of the categorical 

wood. 

listing for processed C&D 

Specifically, EPA is proposing the following conditions: 

0 Facilities using positive sorting must either: {1) Exclude painted woodvia the sorting process by 

selecting only unpainted wood from incoming C&D debris for further processing, (2) use XRF to ensure 

documentation 

that painted wood included in the final product fuel does not contain lead-based paint, or (3) require 

that a building has been tested for and does not include lead-based paint before 

accepting demolition debris from that building. 

0 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 

a building 

that 

has been tested for and does not include lead-based paint before accepting demolition debris 

from that building. 

The Agency believes, based on the available information, 

would 

that facilities complying with these conditions 

produce processed C&D wood that contains lead at levels comparable 

biomass. 

to those in clean wood and 

• Pentachlorophenol: The presence of pentachlorophenol in some processed C&O 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&O debris (in the case of negative sorting) 

prior to the final grinding step. EPA restricted the use and sale of pentachlorophenol in 1987, 

with no registered residential uses allowed for the past 26 years. The Agency believes that the 

pentachlorophenol concentrations in processed C&D wood are a direct result of easily identified 

wood products, predominantly utility poles, that processing facilities can choose to exclude or 

remove prior to grinding recovered C&D wood. !

31' Therefore, under the regulatory conditions 

pentachlorophenol 

proposed in today's rule, processing facilities must exclude or remove these known sources of 

from their final product fuel for it to be considered a categorical non-waste 

fuel. 
• Formaldehyde: For C&D debris processed pursuant to best management practices, inclusive of 

the regulatory conditions in today's proposal, formaldehyde (present in concentrations as high 

as 176.8 ppm versus 27 ppm in clean wood/biomass) is the only remaining contaminant that 

raises questions as to whether it meets the contaminant legitimacy criterion. Although the 

situation appears similar to the categorical non-waste listing for resinated wood in section 

241.4(a)(2), details surrounding use of the two NHSMs as fuel are not the same. In the case of 

resinated wood, as defined in section 241.2, the Agency determined that energy recovered from 

the combustion of manufacturing process residues and off-specification resinated wood is 

integrally tied to the industrial production process. The equivalent for C&D wood would be 

sawmills reliant on recovering energy from sawdust and off-specification 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

l Second, for many combustors, processed C&D wood 

scraps that include resinated wood components, actually have added value and are either selected for 

(in the case of positive sorting) or specifically not removed (in the case of negative sorting) because the 

wood has been kiln-dried prior to use in construction. Kiln-dried wood has a greater heating value than 

virgin wood, almost double in some cases. Kiln-dried wood also has a more consistent moisture content; 

an equally important benefit to combustors because a consistent fuel improves combustion efficiency 

and leads to reduced emissions of particulate matter, carbon monoxide and other organic hazardous air 

pollutants. !

33l 

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. !

34l 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. 

Materials Characterization Paper: Construction and Demolition Materials. February 3, 2011. EPA-HQRCRA-2008-0329-1811. 

(Hl Clean C&D wood is included in the definition of " clean cellulosic biomass" and thus, may be 

com busted 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-
non-wood 

painted wood, 

materials. 

treated wood containing contaminants, such as arsenic and chromium, metals and other 

{See 78 FR 9139, February 7, 2013). 

1141 This rulemaking does not change or replace existing state requirements 

Section VIII, 

regarding C&D wood. See 

State Authority, for further explanation. 

115

176 FR 15456, March 21, 2011 (page 15485); and 78 FR 9111, February 7, 2013 (page 9138). 

(lGl Record keeping requirements for area source boilers are found at § 63.1122S(c)(2)(ii), while 

recordkeeping requirements for major source boilers are found at § 63.75SS{d)(2). 

'

171 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 

the 

that the processing operations meets the definition of processing, as well as 

legitimacy criteria, especially the contaminant legitimacy criterion. 

!

18l 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. 

!191 If a person does not believe that the processed C&D wood meets the categorical 

processed 

listing, the 

C&D wood may still be considered a non-waste 

combustor 

fuel (on a case-by-case basis), although any 

that burns such processed C&D wood would need to keep records documenting 

materials 

the 

non-waste status pursuant to § 63.11225(c)(2)(ii) and § 63.7555(d)(2). 

'

20l Although industry trade groups did not list creosote treated wood as wood that is excluded or 

removed, they provided information 

Based upon 

indicating that C&D debris can include creosote treated wood. 

wood 

the contaminants present in creosote treated wood and the types of boilers that burn C&D 

(i.e., those that are designed to burn clean wood and biomass), we believe it appropriate to 

discussed 

require operators to exclude or remove creosote treated wood. With respect to creosote and as 

later in Section C, the Agency evaluated data provided for creosote-treated 

determined 

railway ties and 

that boiler design was an integral factor in satisfying the contaminant legitimacy criterion. 

!2ll 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." 

!221 CAA regulations provide additional safeguards 

demolition. Part 

to ensure asbestos is removed from buildings prior to 

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 

or whether 

is performed by agents of the owner of the property 

the demolition or renovation 

Asbestos NESHAP 

is performed by agents of the municipality. See also t he " 

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

(Bl Results from a pilot study conducted in the state of Florida indicate that the processing 

were highly 

facilities that 

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 Fa cilities." 

!HI Appendix A of April 26, 2013, submittal from Susan Bodine on behalf of BPA and CMRA. 

(lSI 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. 

!

261 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. 

!

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

!

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

using either a lognormal distribution or nonparametric statistics, as appropriate. 

!

291 76 FR 15523-24, March 21, 2011. 

!

301 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 all45 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. 

!

31

1 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. 

!

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/chem test/formaldehyde/. 

!

331 At this time, the Agency is not requiring resina ted 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. 
B. Creosote-Treated Railroad Ties (CTRTs) 

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 fife of 

durability, 

railroad ties. Creosote-treated wood ties remain the material of choice by railroads due to their long life, 

coal 

cost effectiveness, and sustainability. As creosote is a by-product of coal tar distillation, and 

tar is a by-product of making coke from coal, creosote is considered a derivative of coal. The 

Protection 

creosote component of CTRTs is also governed by the standards established by the American Wood 

Association (AWPA}. AWPA has established two blends of creosote, P1/13 and P2. l

70l Railroad 

ties are typically manufactured using the P2 blend that is more viscous than other blends. 

being 

Under today's proposed ·rule, CTRTs are railroad crossties removed from service and processed prior to 

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. Pll 

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; tnl and the combustor as third party energy 

producers. Typically, ownership of the crossties are generally transferred directly from the generator to 

products 

the reclamation company that sorts materials for highest value secondary uses, and then sells the 

to end-users, including those combusting the material as fuel. Some reclamation companies 

sell CTRTs to processors who remove metal contaminants and grind the ties into chipped wood. Other 

reclamation companies have their own grinders, do their own contaminant removal, and can sell directly 

CTRT 

to the com busting facilities. Information submitted to the Agency indicates there are approximately 15 

recovery companies 

AF&PA 

in North America with industry wide revenues of $65-75 million. Members of 

CTRTs which 

report that the value of CTRTs is underscored by the approximately $2D-$30 per ton paid for 

can sometimes be a premium price compared to certain hog fuels (untreated clean wood 

residues from sawmills). tnl 

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. P4

not 

l This means that 

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 

using 

involves several steps. Metals (spikes, nails, plates, etc.} are removed 

a magnet. Metal removal may occur several times during the process. The crossties are then 

with 

ground or shredded to a specified size depending on the particular needs of the end-use combustor, 

chip size typically between 1-2 inches. This step may occur in several phases, including primary and 
secondary grinding, or in a single phase. Once the crossties are ground to a specific size, additional metal 

may be removed and there is further screening based on the particular needs of the end-use combustor. 

Depending on the configuration of the facility and equipment, screening may occur concurrently with 

grinding or at a subsequent stage. Throughout the process, a surfactant is applied to the crossties being 

processed to minimize dust. 

Once the processing of CTRTs is complete, the CTRTs are sold directly to the end-use combustor for 

energy recovery. Processed CTRTs are delivered to the buyers by railcar or truck. The CTRTs are then 

stockpiled prior to combustion, with a typical storage timeframe ranging from a day to a week. When 

the CTRTs are to be burned for energy recovery, the material is then transferred from the storage 

location using a conveyor belt or 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 

fuels. PSl 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 l=inal Rule 

The March 2011 NHSM final rule indicated that even though most creosote treated wood is non 

hazardous, the presence of hexachlorobenzene, aCAA 112 HAP, as well as other HAP suggested that 

creosote treated 'Nood, 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 dat:a-pf'O't'faed at that time indicated that combustion of creosote treated wood 

may result in destruction of contaminants contained in those materials, which is an indication of 

incineration, a waste activity. Accordingly, creosote treated wood, including CTRTs when burned, 

seemed more like a waste than a commodity, and did not appear to meet the contaminant legitimacy 

criterion. ~+&~This material, therefore, was considered a solid waste when burned and units combusting it 

would be subject to the section 129 CI'.A emission standards. The conclusions from the March 2011 rule 

~. 

regarding creosote treated wood are discussed further in Section V.C.4 (Rationale for Proposed listing} 

b. February 2013 NHSM Final Rule 

In the February, 2013 NHSM final rule, EPA noted that AF&PA and the American Wood Council 

submitted a letter with supporting information on December 6, 2012, seeking a categorical listing for all 

railroad ties com busted in any unit. (n) The letter included information regarding the amounts of railroad 

ties com busted each year and the value of the ties as fuel. The letter also discussed how CTRTs satisfy 

the legitimacy criteria, including its high Btu value. 

While this information was useful, it was not sufficient for EPA to propose that CTRTs be listed 

categorically as a non-waste fuel. Therefore, to further inform the Agency as to whether to list CTRTs 

categorically as a non-waste fuel, EPA requested that additional information be provided, and indicated 
that if this additional information supported and supplemented 

December 

the representations made in the 

2012 letter, EPA would expect to propose a categorical listing for CTRTs. The requested 

information and responses provided are as follows: 

• A list of industry sectors, in addition to forest product mills, that burn railroad ties for energy 

recovery: One respondent claimed that a number of end-use combustors utilize CTRTs as an 

CTRTs 

alternative fuel to offset fossil fuel at all times. Such facilities use as much as 100-500 tons of 

daily. The respondent also claimed to know of additional end-use combustors that utilize 

CTRTs occasionally based on availability and cost. Furthermore, 

other 

the respondent was aware of 

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. <

781 

Another respondent claimed that data <

791 show that a number of forest product mills are 

currently using railroad ties as a fuel and that other mills are permitted to burn these materials 

as fuels, but have stopped using them as a fuel due to their uncertain regulatory status, as well 

as other economic factors (e.g. lower cost of other fuels). 

• The types of boilers (e.g., kilns, stoker boilers, circulating fluidized bed, etc.) that burn railroad 

ties for energy recovery: Respondents stated that the types of units operated by those end-use 

combustors that utilize CTRTs as an alternative fuel include fluidized bed, traveling grate, and 

spreader stoker. Forest product industry boilers that used to burn railroad ties are generally one 

of three types: stoker, bubbling bed or fluidized bed boilers. In addition, cement kilns have 

combusted CTRTs. <

801 

• 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 

other 

fuel typically burn a variety of " traditional fuels," such as coal, biomass (i.e., hog fuel, bark fuel, and 

biomass fuel materials), and fuel oil, as well as other materials and wastes, such as tire derived 

fuel, waste derived liquid fuel, and waste derived solid fuel. <

8182

units 

1 In general, they claim that all of the 

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 

much 

during start-up or during normal operations. The respondents claim that many factors determine how 

choice

fuel oil is burned. For example, because natural gas prices are low, natural gas is often the fuel of 

, if available. In addition, they claim that some states are looking to reduce SO 2 emissions from 

sources and thus, encourage greater use of biomass or natural gas rather than fuel oil. <

831 

Respondents claim that the most comparable 

believe 

traditional fuel to railroad ties is fuel oil. However, they 

when 

the question of whether a combustion unit is designed to burn a specific fuel is not relevant 

EPA makes a determination under section 241.4{a). Specifically, 

EPA 

the respondents claim that the 

has interpreted the phrase " designed to burn" to mean that a combustor 

non

that burns NHSMs as a 

-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 explained that this standard is to avoid the possibility that discard 

could be occurring in some situations. !

841 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 thefactors 

relating to the use of CTRTs as a fuel, including the fact that CTRTs is a commodity that is purchased by 

the combustor. Furthermore, respondents argue that EPA has the discretion to recognize that when a 

combustor purchases CTRTs and then burns it in a boiler, that combustion is for the purpose of 

generating energy rather than discarding the railroad ties. According to the respondents, any other 

conclusion would lead to the absurd result that one boiler can burn CTRTs as a legitimate fuel and 

another boiler-with essentially the same design except for a nozzle feed for fuel oil-would have to 

consider the CTRTs as a solid waste. (The Agency's response to this comment is discussed in Section 

V.C.4 Rationale for Proposed Listing.) 

• The extent to which non-industrial boilers (e.g. commercial or residential boilers) burn CTRTs for 

energy recovery: 

The respondent understands that the residential use of CTRTs for purposes of energy recovery is 

unlikely. However, they explained that several local utilities in the northern Midwest utilize CTRTs for 

purposes of power generation but they have not identified the specific facilities. 

• Laboratory analyses for contaminants known or reasonably suspected to be present in creosotetreated railroad ties, and contaminants known to be significant components of creosote, 

specifically polycyclic aromatic hydrocarbons (i.e., PAH-16), dibenzofuran, cresols, 

hexachlorobenzene, 2,4-dinitrotoluene, biphenyl, quinoline, and dioxins: !BS) 

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. !

861 Information also has 

been provided by M.A. Energy Resources, LLC !

871 and the Treated Wood Council regarding cross-tie 

derived fuel. !

881 In addition, information on contaminant levels found in CTRTs has been provided by the 

Association of American Railroads. !

891 Based on the additional data and information submitted to the 

Agency, contaminant levels found in CTRTs may not be materially different from fuel oil and biomass 

that these facilities are designed to burn as a fuel. Therefore, the Agency is proposing to list, 

categorically, processed CTRTs when used as a fuel in combustion units designed to burn both biomass 

and fuel oil. !

90l 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)(S), 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 states that in those cases where the railroad or reclamation 

company wait for more than a year to realize the value of the CTRTs as a fuel (or in landscaping), it does 

not mean or indicate that the CTRTs have been discarded and cite 76 FR 15456, 15520 of the March 

2011 rule. That section of the rule addresses the management of the NHSM as a valuable commodity 

and states that storage of the NHSM must be within a reasonable timeframe. <

91l The December 6 letter 

claims that a robust market for companies engaged in railroad tie reclamation, and the cost of this 

material indicates that the material is a valuable commodity and has not been discarded. 

While the Agency recognizes that the reasonable timeframe for storage may vary by industry, the 

Agency does not believe that any explanation (other than a repeat of what the rules say) has been 

provided of why storage that may be longer than a year is not discard, especially when they argue that 

CTRTs are a valuable material. Put another way, if the CTRTs have such value as a fuel or landscaping 

material, then why aren't they processed and used as a fuel or landscaping material in a relatively short 

period of time? Therefore, without further explanation or information from the public, the Agency 

concludes that CTRTs removed from service and stored in a railroad right of way or other location for 

long periods of time- that is, a year or longer, without a determination regarding their final end use (e.g. 

landscaping, as a fuel or land filled) indicates that the material has been discarded and is a solid waste 

(see the preamble discussion of discard 76 FR 15463 in the March 2011 rule). Regarding the assertion 

that the CTRTs are a valuable commodity in a robust market, the Agency would like to remind persons 

that NHSMs may have value in the marketplace and still be considered solid wastes. 

Since the railroad ties removed from service are considered discarded because they can be stored for 

long periods of time without a final determination regarding their final end use, in order for them to be 

considered a non-waste fuel, they must be processed, thus transforming the railroad ties into a product 

fuel that meets the legitimacy criteria, or if not meeting the legitimacy criteria, would still be considered 

a non-waste fuel in balancing the legitimacy criteria with other relevant factors. The Agency concludes 

that the processing of CTRTs described above in section C.l. meets the definition of processing in 40 CFR 

241.2. As discussed in Section V.A, processing includes operations that transform discarded NHSM into a 

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 are improved when the crossties are ground or shredded 

to a specified size depending on the particular needs of the end-use combustor. The grinding 

may occur in one or more phases. Once the CTRTs are ground, there may be additional 

screening to bring the material to a specified size. 

b. Legitimacy Criteria 

As discussed above, EPA can list a discarded NHSM categorically as a non-waste fuel if it has been " 

sufficiently processed," and meets the legitimacy criteria. If the Agency were to list such N HSM 

categorically as a non-waste fuel, those who use the material would not have to evaluate and document 

the regulatory status of the material on a case-by-case basis. The three legitimacy criteria to be 

evaluated are: (1) The NHSM must be managed as a valuable commodity, (2) the NHSM must have a 

meaningful heating value and be used as a fuel in a combustion unit to recover energy, and (3) the 

NHSM must have contaminants or groups of contaminants at levels comparable to or less than those in 

the traditional fuel the unit is designed to burn. 1

92' 

i. Managed as a Valuable Commodity 

The processing of CTRTs is correlated to the particular needs of the end-use combustor. Additional 

screening may take place after the grinding and shredding of the CTRTs if deemed necessary. Once the 

CTRTs meet the end use specification, they are then sold directly to t he end-use combustor for energy 

recovery. CTRTs are delivered to the end-use combustors via ra ilcar and/or truck similar to how 

traditional biomass fuels are delivered. While awaiting combustion at the end-user, which usually takes 

place within a week of arrival, the CTRTs are transferred and/or handled from storage in a manner 

consistent with the transfer and handling of biomass fuels. Such procedures typically include screening 

by the end-use combustor, combining with biomass fuels, and transferring to the combustor via 

conveyor belt or front-end loader. Since processed CTRTs storage does not exceed reasonable time 

frames and are handled/treated similar to analogous biomass fuels by end-use combustors, CTRTs 

meets the criterion for being managed as a valuable commodity. 1

93' 

ii. Meaningful Heat ing Value and Used as Fuel To Recover Energy 

EPA received recent information that the heating value of processed CTRTs ranges from 6,000-8,000 

Btu/lb as fired, and that combustion units recover energy by burning the material as fuel. Information 

compiled by EPA in 2011 indicates that CTRTs could replace clean wood that has an average as-fired 

heating value of 5,150 Btu/lb, with a low as-fired heating value of 3,440 Btu/lb. '

94

' In the March 2011 

NHSM final rule, the Agency indicated that NHSMs with an energy value greater than 5,000 Btu/lb, as 

fired, are considered to have a meaningful heating value. '

95

' Thus, CTRTs have greater heating value 

than much of the traditional fuel it replaces and, therefore, meets the criterion for meaningful heating 

value and used as a fuel to recover energy. 

iii. Contaminants Comparable t o or Lower than Traditional Fuels 

Data on contaminant comparisons. For CTRTs, EPA has compared the additional data submitted on 

contaminant levels by petitioners to analogous data for two traditional fuels: biomass (including 
untreated clean wood) and fuel oil. As noted above, the data EPA received on CTRTs comes from the 

following three sources: M.A. Energy Resources (MAER), URS Corporation on behalf of the Association of 

American Railroads, and AF&PA. The information submitted by MAER included a comprehensive analysis 

of one CTRT sample. The sample came from a CTRT pile located at an end-use combustor. The URS 

Corporation report included three samples of processed CTRT from the National Salvage facility in 

Selma, Alabama, and from a Stella Jones facility in Duluth, Minnesota. AF&PA submitted documents 

comparing contaminant concentrations in CTRTs with traditional fuels. AF&PA compiled data from 

various sources in these documents. EPA considers data from these eight facilities to be representative 

of the CTRT universe because the composition of the creosote component of the CTRTs is the same-that 

is, the P2 blend of creosote, as well as the fact that multiple samples have been taken in different parts 

of the country at different points in the CTRT management chain. Table 3 lists the aggregated CTRT data 

received as it compares to contaminants found in two traditional fuels that petitioners claim are used, in 

varying amounts, at facilities burning processed CTRTs for energy recovery. 

Table 3-Contaminant Ranges in Traditional Fuels and CTRT 

Contaminant Biomass a Fuel Oil a CTRT b 

Metal Elements: 

Antimony (Sb) ND-26 ND-15.7 ND 

Arsenic (As) ND-298 ND-13 ND-3.2ND 

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 

Chlorine (CI) ND-5,400 ND-1,260 22-400 

Fluorine (F) ND-300 ND-14 100 
Table 3-Contaminant Ranges in Traditional Fuels and CTRT 

Contaminant 

Nitrogen (N) 

Sulfur (S) 

Volatile Organic 

Benzene 

Phenol 

Styrene 

Toluene 

Xylenes 

Cumene 

Ethyl benzene 

Formaldehyde 

Hexane 

15 Additional VOC 

Total VOC ' 

Semivolatile: 

Biphenyl 

16-PAH d 

Oibenzofuran 

Quinoline 

Cresols 

Hexachlorobenzene 

2,4-dinitrotoluene 

Lindane 

Biomass a Fuel Oil a CTRT b 

200-39,500 42-8,950 1,600-14,400 

N0-8,700 N0-57,000 681-3,277 

1.6-27 

1.6-27 

N0-75 NO 

N0-7,700 NO 

N0-320 NO 

N0-380 NO 

N0-3,100 0.325 

6,000-8,600 NO 

22-1270 0.058 

NO 

50-10,000 NO 

NO 

6,072-19,810 0.383 

1,000-1,200 137-330 

3,900-54,700 6641-21,053 

570-1,500 

40.2 

NO 

NO 

1.51 

NO 

NO 

0.238 
Table 3-Contaminant Ranges in Traditional Fuels and CTRT 

Contaminant Biomass a Fuel Oil a CTRT b 

11 Additional ND 

Total SVOC: 4,900-54,700 7,618-22,883 

As shown in Table 3, all contaminant concentration levels for metals are within the ranges identified for 

fuel oil and biomass. We note that when comparing the non-metal elemental contaminants, however, 

fluorine and nitrogen levels in CTRTs are not comparable to fuel oil, and semi-volatile organic compound 

(SVOC) levels are not comparable to biomass. Given that CTRTs are a type of treated wood biomass, and 

any unit burning CTRTs typically burns untreated wood, EPA considered three scenarios that petitioners 

described. 1961 

In the first scenario, where a combustion unit is designed to only burn biomass, EPA compared 

contaminant levels in CTRT to contaminant levels in biomass. In this scenario, the total SVOC levels can 

reach 22,883 ppm, driven by high levels of polycyclic aromatic hydrocarbons (PAHs} and, to a lesser 

extent, the levels of dibenzofuran and biphenyl. 1971 These compounds are largely nonexistent in clean 

wood and biomass, and the contaminants are therefore not comparable in this instance. In fact, they are 

present at orders of magnitude higher than found in clean wood and biomass. 

In the second scenario, where a combustion unit is designed to burn various solid fuels, EPA 

comparedcontaminant levels in CTRTs to both coal and biomass (see footnote 23}. Again, however, total 

SVOCs would not be comparable, and in fact, would be present at orders of magnitude higher than 

found in biomass i.e. up to 22,883 ppm in CTRTs. 

In the third scenario, a combustion unit is designed to burn biomass and fuel oil. As previously 

mentioned, fluorine, and nitrogen levels in CTRTs are present at elevated levels when compared to fuel 

oil. However, the highest levels of fluorine (100 ppm} and nitrogen (14,400 ppm} are comparable to, or 

well within the levels of these contaminants in biomass. Likewise, SVOCs are present in CTRTs (up to 

22,883 ppm) at levels well within the range observed in fuel oil (up to 54,700 ppm}. Accordingly, 

contaminant concentration levels for fluorine, nitrogen, and SVOCs are within the ranges identified for 

either biomass or fuel oil. Therefore, CTRTs have comparable contaminant levels to other fuels 

combusted in units designed to burn both biomass and fuel oil, and as such, meet this criterion. 

As stated in the preamble to the February 7, 2013, NHSM final rule, EPA believes that combustors may 

burn NHSMs as a product fuel if they compare appropriately to any traditional fuel the unit can or does 

burn. (78 FR 9149} Combustion units are often designed to burn multiple traditional fuels, and some 

units can and do rely on different fuel types at different times based on availability of fuel supplies, 

market conditions, power demands, and other factors. Under these circumstances, it would be arbitrary 

to restrict the combustion for energy recovery of NHSMs based on contaminant comparison to only one 

traditional fuel if the unit could burn a second traditional fuel chosen due to such changes in fuel 

supplies, market conditions, power demands or other factors. If a unit can burn both a solid and liquid 

fuel, then comparison to either fuel would be appropriate. 
In order to make comparisons to multiple fuels, as was also discussed in the preamble 

rule, units must 

to the February 7 

be designed to burn those fuels (78 FR 9111, page 9150). If a facility compares 

contaminants in an NHSM to a traditional 

contaminated, 

fuel a unit is not designed to burn, and that material is highly 

a facility would then be able to burn excessive levels of waste components 

as a means 

in the NHSM 

Accordingly, 

of discard. Such NHSMs would be considered wastes regardless of any fuel value. 

the ability to burn a fuel in a combustion unit does have a basic set of requirements, 

most basic of which 

the 

able to ensure 

is the ability to feed the material into the combustion unit. The unit should also be 

the material is well-mixed and maintain temperatures within unit specifications. 

Available information regarding use of fuel ail. As discussed 

the comment 

in section 2.b., petitioners indicat~d during 

identify specific 

period 

units. 

that there are combustion units designed to burn biomass and fuel oil, but did not 

In a March 2013 letter, '

98

creosote

1 petitioners stated that the overwhelming majority of 

permitted 

-treated railroad ties burned at paper mills are burned in boilers that are fully capable and 

burn oil during 

to burn 

operating 

at maximum capacity rating. AFPA claims that most of these boilers (80%) can or do 

conditions outside of startup and shutdown periods. '

991 

Additional information was submitted by petitioners subsequent to this claim, however. 1

100

information 

1 The new 

indicates that while stoker, bubbling bed or fluidized bed boilers at major source 1

10 1

mills are currently 

1 paper 

combusting 

designed to combust both fuel oil and CTRTs, few, if any, of these units may be 

both fuel oil and biomass in the future since those units will be switching 

natural gas 

from fuel oil to 

for start-up periods and operations. The petitioners 

during operation would 

indicated that continued use of fuel oil 

result in higher compliance costs and higher costs per Btu. Petitioners stated 

most 

that the 

efficient 

switch 

and 

to natural gas for operation requires replacement of start-up fuel systems, and that the 

least emitting start-up systems use specialized burners for gas. 

We note that EPA collected information 

variety of 

from owners and operators of combustion units across a wide 

industries in its development of emissions standards 

section 112 of 

for boilers and process heaters under 

(including 

the Clean Air Act. In that context, based on the information submitted by industry 

petitioners and others), EPA concluded 

oil or natural gas 

that units that combust solid fuels generally used fuel 

only as a startup fuel. EPA concluded 

generally 

that changing the fuel type in such units would 

require extensive changes to the fuel handling and feeding system, as well as modification 

the burners and 

to 

as units designed 

combustion chambers. 75 FR 32006, 32017. For these reasons, EPA treated these units 

to combust solid fuels (including biomass). Further, the information submitted 

ICR indicated 

for the 

that some biomass units may combust fuel oil at other times, for example, for transient 

flame stability purposes if they are combusting biomass with a high moisture content. However, 

did not 

the ICR 

conjunction 

indicate 

with 

the amount of fuel oil being com busted, or whether fuel oil was com busted alone or in 

MACT, EPA did 

solid fuel, such as biomass. Therefore, at the time of the development of the boiler 

not have any information, including information submitted in response 

indicating 

to the ICR, 

biomass 

there are units designed to burn solid fuel which commonly switch between combusting 

and fuel oil or otherwise com busted fuel oil as part of normal operation. 

dibenzofuran 

Information related 

and 

ta dibenzofurans and dioxins. As discussed above, the Agency requested data on 

dioxins, in large part because dibenzofuran 

as a HAP under CAA 

is known to be present in CTRTs and listed 

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

Petitioners submitted an explanatory document in response to the Agency's request. 11021 

provided additional 

The document 

information regarding {a) the presence of dibenzofuran in creosote and creosote-
the 

treated 

polychlorinated 

wood, and {b) whether the presence of dibenzofuran can indicate the concurrent presence of 

dibenzofurans 

versions of these compounds, viz., polychlorinated dibenzo p-dioxins and 

{PCDD/F-often collectively termed dioxins). 

The petitioners' data confirms the presence of dibenzofurans. Petitioners acknowledged 

creosote used 

that coal tar 

dibenzofuran concentrations 

in preparing railroad 

measured 

ties may have levels of dibenzofuran up to 4.5% or 45,000 ppm, and 

in seven samples of railroad ties previously 

creosote 

treated with 

ranged from 570 to 1,500 ppm. However, as indicated bythe petitioners, 

not be confused with 

this compound should 

and dibenzodioxins. 

dioxins or furans, which refers to a larger group of polychlorinated dibenzofurans 

The Agency agrees with the petitioners explanation 

result 

that dibenzofuran present in the CTRTs should not 

in the formation of dioxins, but as a HAP itself, dibenzofuran is still appropriate 

list of SVOCs 

to include in the 

for comparison to traditional fuels. !IOl) Regarding dioxins, the document 

dioxins 

indicted that 

c

should not be present in the material. The Agency agrees that the level of chlorine during 

reosote production is not sufficient 

be present 

to form dioxins in coal tar creosote and therefore dioxin should not 

in CTRTs prior to combustion. 

As discussed previously, the March 2011 NHSM final rule noting the presence of hexachlorobenzene 

dinitrotoluene, suggested 

and 

comparable 

that creosote-treated lumber include contaminants at levels that are not 

would 

to those found in wood or coal, the fuel that creosote-treated wood would replace, and 

conclusions 

thus be considered solid wastes. Today's proposed rule differs in several respects from the 

in the March 2011 rule. Today's proposal concludes 

when combusted 

that CTRTs are a categorical non-waste 

data on 

in units designed to burn both fuel oil and biomass. The March 2011 rule, using 1990 

railroad cross ties, was based on contaminant comparisons 

As discussed above, 

to coal and biomass and not fuel oil. 

when compared 

include dinitrotoluene 

to fuel oil, total SVOC contaminant concentrations {which would 

and hexachlorobenzene) 

in fact, 

in CTRTs would be less that those found in fuel oil, and 

the 2012 data referenced in today's proposal showed non-detects for those two contaminants. 

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

In their request for a categorical listing of CTRTs and in background information submitted subsequent 

241.4{a), 

to that request, petitioners argue that, in the context of a specific non-waste determination under § 

list an NHSM 

the Agency can balance the legitimacy criteria against other relevant factors in any decision to 

categorically. See 40 CFR 241.4{b){5). Specifically, 

designed 

the petitioners argue that the phrase " 

listing CTRTs 

to burn" can be another relevant factor that the Agency can consider in making a decision on 

categorically as a non-waste fuel. They argue that by conducting such balancing, 

Agency 

the 

could allow CTRTs to be burned as a non-waste 

biomass, whether 

fuel in any combustion unit that can combust 

or not the combustion unit is designed to burn fuel oil. Thus, the petitioners request 

that the Agency re-define or ignore the "design to burn" concept, as currently interpreted 

purposes of 

for the 

this categorical listing. 

In arguing that the Age~cy can re-define or ignore the " design to burn" concept, petitioners 

additional 

identified 

relevant factors to be considered in a categorical listing for CTRTs. Specifically: 
• CTRTs are functionally the same as other comparable traditional fuels, such as fossil fuels used 

in a fuel mix to maintain an appropriate BTU level for the biomass boilers., combusted in the 

same units and subject to the same air pollution controls. 1

1041051 

• CTRTs are integral to the production process similar to any other fuel used and consistently have 

lower moisture content and higher Btu value than other biomass fuel. 

• CTRTs are commodity fuels-users pay $20-$30 per ton thus the petitioners believe that the 

material is not being discarded. 

• High levels of PAHs in CTRTs and removal of oil delivery mechanisms from units designed to 

combust fuel oil and CTRTs is not an indication that the material is being "discarded" and is 

thus a solid waste. 1

106l As discussed previously, units will be switching from fuel oil to natural 

gas. Such units designed to combust both fuel oil and CTRTs include stoker, bubbling bed and 

fluidized bed boilers. Boilers that have burned fuel oil currently or in the past will discontinue 

using fuel oil, however, petitioners argue that they have clearly demonstrated the ability to burn 

that material as a product fuel. 

In general, the petitioners argue that any combustor that purchases CTRTs for use as a fuel is purchasing 

the material because of its fuel value and that any burning is clearly for generating energy, as opposed 

to discarding CTRTs. Otherwise, they argue it would lead to the absurd result that for a boiler that can 

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

cannot burn fuel oil, but also burns CTRTs, the CTRTs would be considered a solid waste. Some recyclers 

and combustors, according to petitioners, have been managing CTRTs as non-waste fuel, irrespective of 

the type of boiler or combustion unit. 

While we agree with the petitioners that the agency can list an NHSM categorically by balancing the 

legitimacy criteria against other relevant factors (40 CFR 241.4(b)(S)(ii), we do not agree that the Agency 

can simply ignore any of the legitimacy criteria, or other relevant factors, including the contaminant 

legitimacy criterion. In particular, the petitioners argue that any biomass material regardless of the 

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

Purchase of the material as a commodity for its fuel value is a factor, but not determinative when 

considering whether discard has occurred. Further, elevated levels of contaminants 

material 

remaining in the 

can indicate that the material is being discarded. While the Agency recognizes that other 

relevant factors may be considered when one of the legitimacy criteria are not met, there is a limit to 

the levels of contamination allowed in balancing other relevant factors with the legitimacy criteria. 

We do not agree with petitioner's claim that CTRT are functionally the same as other comparable 

traditional fuels, such as fossil fuels that are used in a fuel mix to maintain an appropriate BTU level for 

CTRT 

the biomass boilers, that are combusted in the same units and subject to the same air pollution controls. 

contains contaminants at levels that are not comparable to thecontaminant 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 

CTRTs 

remaining in the material can indicate that the material is being discarded. Further, all 

are not functionally the same as comparable traditional fuels since it must be processed by 
reclamation companies 

as a 

to remove metals (spikes, nails etc) and shredded into chips to make it suitable 

fuel source. 

We also do not agree that CTRTs are integral to the production process. In a previous categorical 

determination for resinated wood, the Agency did conclude that the material was integrated 

production 

into the 

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 

of 

to utilize that material for their fuel value, and the plants could not operate as designed without the use 

resinated wood. Similar information was not received for CTRTs. 

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 

standard 

influence the composition of the creosote, and the composition may vary with the requirement of 

Technical 

specifications. April 2010. Forest Products Laboratory. 2010 Wood Handbook. General 

Report FPL_GTR-190. Madison, WI. 

17ll American Forest & Paper Association, American Wood Council- Letter to EPA Administrator, 

December 6, 2012. 

1721 In some cases, the reclamation company sells the crossties to a separate company for processing. 

1

731 American Forest & Paper Association, American Wood Council-Letter to EPA Administrator, 

December 6, 2012. 

'

74

1 M.A. Energy Resources LLC, Petition submitted to Administrator, EPA. February 2013. 

1

75! American Forest & Paper Association, American Wood Council- Letter to EPA Administrator, 

December 6, 2012. 

1

761 76 FR 15483. 

1771 American Forest & Paper Association, American Wood Council-Letter to EPA Administrator, 

December 6, 2012. 

P8l Information received subsequent 

above 

to the request for data in the February 13, 2013 rule discussed 

claims that 14 entities in the utility sector could burn (i.e. are permitted to burn) or are burning 

within 

cross-tie derived fuel (i.e. CTRT). Of the 14 entities, 9 companies are currently firing or have fired CTRT 

the past two years. Information on pulp and paper and utility sources currently utilizing CTRT 

indicates that several of these sources use between 5,000 and 70,000 tons of CTRT per year. Information 

compiled by M.A. Energy LLC. (MAER) contained 

29, and February 

in letters and emails from All4 Inc. to EPA dated January 

28, 2014. 

1

79

March 

1 American Forest and Paper Association and American Wood Council's letter to George Faison, EPA. 

7, 2013. 

1

801 Petition for Determination 

Waste under 

Identifying Non-Hazardous Secondary Treated Wood Biomass as a Non40 CFR 241.4(a). Treated Wood Council April 2013. 
'

811 

would 

To the extent that any of these boilers burn fuel derived from waste, or any other solid waste, they 

be subject to the CAA Section 129 CISWI standards, and the Agency's proposal today would not 

impact their regulatory status. 

'

821 

March 

American Forest and Paper Association and American Wood Council's letter to George Faison, EPA. 

7, 2013. 

'

831 Examples of combustors utilizing a variety of traditional and other fuels, including facilities 

Railroads 

com busting both CTRT and fuel oil, is found in documentation provided by the American Associations of 

(AAR). The document listed 11 non- pulp and paper facilities including power generators. All of 

CTRT 

the facilities listed combust CTRT, three facilities combust CTRT and fuel oil, three facilities combust 

and natural gas. Other fuels combusted include tire-derived fuel, and landfill gas. February 2013. 

'

841 See 78 FR 9149 

'

85l 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 

Sheets 

indicated the presence of cresols, hexachlorobenzene and 2,4-dinitrotoluene), Material Safety Data 

absence 

for coal tar creosote (which indicated the potential presence of biphenyl and quinoline), and the 

of dioxin analyses prior to combustion despiteextensive dioxin analyses of post-combustion 

emissions. 

'

861 AF&PA Ibid. 

'

87l M .A. Energy Resources, LLC 40 CFR Part 241, Subpart B- Crosstie Derived Fuel. February, 2013. 

'

88' Letter from Jeffrey Miller, Treated Wood Council to Lisa Feldt. December 17, 2012. 

fS9

l Evaluation of Used Railroad Ties Treated with Creosote for Polynuclear Organic Material which 

Association 

includes Polynuclear Aromatic Hydrocarbons. Janua ry 2013. URS Corporation on behalf of American 

of Railroads. 

'

90l 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. 

1911 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 nonchazardous secondary materials and 

industries involved. 

f

92l We 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. 

!

93

wo

l Prior to the CTRTs being processed as a product fuel, the CTRTs are considered solid wastes and 

uld be subject to appropriate federal, state, and local requirements. 

f

94l 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. 

1

95l See 76 FR 15541. 

1

96l We note that contaminant data received also compared coal to CTRTs as the traditional fuel for 

comparison. Like biomass, CTRT contaminant concentration levels for SVOCs exceeded those in coal, but 

were comparable to levels in fuel oil. Likewise, contaminant levels for nitrogen and fluorine in CTRTs 

were comparable to those in coal, but exceeded those in fuel oil. Thus, units designed to burn both 

biomass and fuel oil may, in addition, burn coal if the unit is also designed to burn that material. 

1

97l 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. 

1

98l American Forest and Paper Association and American Wood Council's letter to George Faison, EPA. 

March 7, 2013. 

1

99l American Forest and Paper Association and American Wood Council's letter to George Faison, EPA. 

March 7, 2013. 

(tOOl E.O. 12866 meeting between Offic~ 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. 

ltOtl 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. 

1102l American Forest and Paper Association and American Wood Council- Letter to George Faison, EPA 

March 7, 2013. 

UOll 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.