### Faison , George Fr

om : Sent: To: Cc: Subject : Faison, George Friday, July 24, 2015 12 :28 PM Miller, Jeff 'Luxton , Jane C.' Re : info Attac hments: C&D RR Tie Info Summary from Proposed Rule.docx; C&d sampling.pdf 

### Hi Jeff- as requested, a ttached are summaries of the data submitted by industry as discussed in the Aprill4, 2014 proposed rule for both C&D wood and creosote ties. As an example of co ntam inant data rece ived, also attached is a summa r y chart on C&D testing info. Let me know ifyo u have any qu estions. George
From: Mille r, J eff <Jeff_Mi ller@treated-wood.org> S

ent : 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. C onstru ction and Demolition (C&D) Debris Processed According to B est Management Practices 1. 

### Detai led 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 Incin erator (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 peryear 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 req uirements 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-m ingled 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 meta ls, 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 undesi rabl e material from the C&D debris. Regardless ofwhether 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 oftechniques to remove or exclude debris unsuitable for a fue l product. Typically, processors use some combination of sou rce 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 sortin g and number ofscreening devices) help determine which combination of practices will be most effective. Individual states also have different requirements rel ated to the processing and combustion of C&D wood. (l4l 

### Despite the variety of options, certain practices, which are described below in Section V.A.4 (Rationale far P roposed 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 oftreated wood), processors m ust 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 F inal Rwles In both the March 2011 and February 20B

**~IHSM** 

### final rules, fPA discussed two scenarios underwhich 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 ofthe C&D •.voed currently reco..,ered from Giemo!itioR activities ca n 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 materia ls 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 ofgeneration ofthe fuel product. • Comments detail the processing and test data available for C&D materials, which demonstrates theirvalue 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 subj ect to the legitim acy 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 seconda ry materia ls into useful product fuel. Expanding further on these comments, several trade organizations submitted information in support of a categorical non -waste determ ination 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 avaluable 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 commente rs 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 Lis ting for C & DWood 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 faci lities that the C&D wood has been processed by trained operators in accordance with best management practices. ll9l 

### Best management practices for purposes ofthis categorical listing must include sorting by trained operators that excludes or removes the following materi als 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) 

### pentach lorophenol, 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 pai nted wood from the final product fue l, use X-ray F l uorescence to ensure that painted wood included in the final product fu el 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 ingredi ent, including operations necessary to: remove or destroy contaminants; significantly improve the fuel characteristics (e.g., sizing or drying ofthe 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 ofthe material by shredding do not constitute processing for the purposes ofthe 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 ofspecified 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, ( 22

### l 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 ofC&D Wood}, 

### thenature ofthe 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 ofthe processing facility (e.g., the degree ofsorting and number ofscreening 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 ofthe characteristics (e.g., ex tent 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 requiredto 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. L egitimacy Criteria In determining whether to list processed C&D wood as a categorical non-waste fuel in 

### § 241.4(a), the Agency eva luated 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 i n 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 fu el the un it 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 chi p 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 ofvirgin wood and biomass, the Agency has determined that processed C&D wood meets this legitimacy criterion. ii. Meaningful Heati ng Value and Used as a Fuel To Recover Ener gy With respect to the second legitimacy criterion, EPA bel ieves C &D trade organizations have demonstrated that processed C&D wood has a meaningful heating value and is used as a fuel to recover ene rgy. S pecifically, i nformation 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 greaterthan 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 L owerThan 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 ofWashington, and Wisconsin. EPA has compared the contaminant levels found in the processed C&D wood to the contam inant 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 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 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 16.6Table !-Comparison of Contaminants in Clean Wood/Biomass and Processed C&D Wood 26 27 28 Contam i nant Clean R Processed t1 90% Wood/Biomass ange Average UPL Maximum C&D wood 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 offour 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 betterjob 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 ofthe 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 outlierfacility. Accordi ngly, 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 ofthe 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. Nordo they require documentation of a building

### inspection that includes testing for lead-based paint. By comparison, the Washington facility included in the dataset requi res documentation ofXRF 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 ofcontaminants, and facilities can remove them before and after shredding via screens or flotation. EPA does not dispute that the removal offine 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: 

## 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 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. 

## 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 that a building 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, 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&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 ofeasily 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 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 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 ofthe 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 A

genc y 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
. !32l 

### Second, for many combustors, processed C&D wood s

craps 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 c ombustion 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-painted wood, treated wood containing contam inants, such as arsenic and chromium, metals and other non-wood materials. {See 78 FR 9139, February 7, 2013). 1141 This rulemaking does not change or replace existing state requirements regarding C&D wood. See Section VIII, 

### StateAuthority, for further explanation. 115176 FR 15456, March 21, 2011 (page 15485); and 78 FR 9111, February 7, 2013 (page 9138). (lGl Recordkeeping requirements for area sou rce boilers are found at 

### § 63.1122S(c)(2)(ii) , while recordkeeping requirements for major source boilers are found at 

### § 63.75SS{d)(2)
. ' 171While.the combustor would be responsible for maintaining the records that such NHSM met the legitimacy criteria, the combustor could request that the pe rson 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. ! 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 Ifa person does not believe that the processed C&D wood meets the categorical listing, the processed 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 wou ld need to keep records documenting the materials 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 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. !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 cellu losic biomass. " !221 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 " reside ntial 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 ofwhether the demolition or renovation is performed by agents ofthe owner ofthe property or whetherthe demolition or renovation is performed by agents ofthe municipa lity. See also t he " Asbestos NESHAP Clarification of Intent" (60 FR 38725; July 28, 1995)
. (Bl Results from a pilot study conducted in the state of F lorida indicate that the processing facilities that were highly successful in identifying treated wood (i.e ., CCA-treated wood) had extensive workertraining programs in place. See Blassino, Monika, et al. " Methods to Control Fuel Quality at Wood Burning Facilities." !HI Appendix A of April 26, 2013, submittal from Susan Bodine on behalf of BPA and CMRA. (lSI USEPA, Office ofAir 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: Tablesfor 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. !281Upper Prediction Limit (UPL) calculations were made by commenters using EPA's ProUCL software, using either a lognormal distribution or nonparametric statistics, as appropriate. !29176 FR 15523-24, March 21, 2011. !301In addition to determining that the one sample offluorine 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 ofthe time. !311Based 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 ofthe 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/. !331 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 andRequest 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 R ailroad Ties (CTRTs) 1 . Detailed Description of CTRTs Railroad ties are typically comprised of Nor th 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 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, 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. l 70l 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 ofthe removed CTRTs are used for landscaping, with the majority ofthe 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 ofthe 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 ofthe 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 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 $2D-$30 per ton paid for CTRTs which 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 theirvalue as an alternative fuel can be realized, generally through a contract completed for transferal ofownership to the reclamation contractor or combustor. P4lThis 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 prioryears and stored by railroads or removal/reclamation companies until theirvalue as a landscaping element or fuel could be realized
. Typically, reclamation companies receive CTRTs by rail. The processing ofthe 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 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 andsecondary 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. PSlThe combined fuel may be furth er 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 ofwood treated with preservatives other than creosote. 2. CTRTs Under Current NHSM Rules a. March 2011 N HSM 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 co ntaminants 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 conside r 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 legitimac y 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. Febru ary 2013 NHSM Final Ru le 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 combusted in any unit. (n)The letter included information regarding the amounts of railroad ties combusted each year and the value ofthe 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 indicatedthat 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 are as follows: 

### • A list of industrysectors, in addition to forest productmills, thatburn railroad tiesfor 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 end-use 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 ofthe 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 chemica l manufacturing facilities. For the utility sector, at least 14 utilities could burn (i.e. are permitted to burn) or are burning CTRT. < 7 81 Another respondent claimed that data < 791 show that a number offorest 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, stokerboilers , circulatingfluidized bed, etc.) thatburn railroad tiesfor 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 ofthree 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%} ofthese traditionalfuels that could otherwise generally be burned in these types ofunits: Respondents also claim that units operated by end-use combustors that utilize CTRTs as an alternative fuel typically burn avariety 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 fuel, and waste derived solid fuel. < 81821In 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. 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 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 traditional fuel to railroad ties is fuel oil. However, they believe the question ofwhether a combustion unit is designed to burn a specific fuel is not rel evant 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 explained that this standard is to avoid the possibility that discard cou ld be occurring in some situations. !841However, 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 anothe r 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 orresidential 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 loca l 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 orreasonably suspected to be present in creosotetreated railroad ties, and contaminants known to be significant components ofcreosote, specificallypolycyclic 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 C TRTs 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. !861Information also has been provided by M.A. Energy Resources, LLC !871 and the Treated Wood Council regarding cross-tie derived fuel. !881In addition, information on contaminant levels found in CTRTs has been provided by the Association ofAmerican Railroads. !891Based 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 24 1. (4)(b)(S), EPA first eva luates whether or not the NHSM has been discarded, and if notdiscarded, whether or not the material is legitimately used as a product fuel in a combustion unit. Ifthe 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 prioryears 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 ofthe rule addresses the management ofthe NHSM as a valuable commodity and states that storage of the NHSM must be within a reasonable timeframe. < 91lThe December 6 letter claims that a robust market for companies engaged in railroad tie reclamation, and the cost ofthis 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 ofwhat the rules say) has been provided ofwhy 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 ofway or other location for long periods oftime- 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 commod ity 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 oftime 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 ofthe 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 occu r severa l times du ring processing. • The fuel characteristics of the material are improved w hen the crossties are ground or shredded to a specified size depending on the particular needs of the end-use combustor. The grindi ng may occur in one or more phases. Once the CTRTs are ground, there may be additional screening to bring the materia l to a specified size. b. L egitimacy 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 . Ifthe 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 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 contam inants at levels comparable to or less than those in the traditional fuel the unit is designed to burn. 1 92' i. Managed as a Val uable Commodity The processing of CTRTs is correlated to the particular needs ofthe end-use combustor. Additional screening may take place after the grinding and shredding of the CTRTs ifdeemed necessary. Once the CTRTs meet the end use specification, they are then sold di rectly to t he end-use combustor for energy recovery. CTRTs are delivered to the end-use combustors via ra ilcar and/or truck simi lar to how traditional biomass fue ls 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, com bin ing w ith biomass fuels, and t ransferring to the combustor via conveyor belt or front-end loader. Since processed C TRTs s torage 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' i i. M eaningfu l 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 burni ng the material as fuel. Inf ormation compiled by EPA in 2011 indicates that CTRTs cou ld replace clean wood that has an average as-fired heating value of5, 1 50 Btu/lb, with a low as-fi red heating va l ue of 3,440 Btu/lb. '94' In the March 2011 NHSM final rule, the Agency indicated that NHSMs with an energy va lue 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 ofthe t raditional fu el it replaces and, therefore, meets the criterion fo r meaningful heating value and used as a fuel to recover energy. i ii. Contaminants Comparable t o or Lower than Trad itional Fuels 

### Data on contaminant comparisons. For CTRT s, EPA has compared the additional data submitted on contam inant levels by petitioners to analogous data for two traditional fuels: biomass (includinguntreated 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 ofthe 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 ofthe 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 ofthe 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 100Table 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 0.238Table 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 co mparable to fuel oil, and semi-volatile organic compound (SVOC) levels are not comparable to biomass. Given that CTRTs are a type oftreated 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 fue ls, EPA comparedcontaminant levels in CTRTs to both coal and biomass (see footnote 23}. Again, however, total SVOCs wou ld 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 offluorine (100 ppm} and nitrogen (14,400 ppm} are comparable to, or well within the levels ofthese 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, contam inant 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 fue l ifthe 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). 

### Ifa 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 ofwaste components in the NHSM as a means of discard
. Such NHSMs would be considered wastes r egardless 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 ofwhich 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. 

### Available information regarding use of fuel ail. As discussed in section 2.b., petitioners
**indicat~d** during the comment period that there are combustion units designed to burn biomass and fuel oil , but did not identify specific units. In a March 2013 letter, '981petitioners 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 burn at maximum capacity rating. AFPA claims that most ofthese boilers (80%) can or do burn oil during operating conditions outside of startup and shutdown periods. '991 Additional information was submitted by petitioners subsequent to this claim, however. 1 1001 The new information indicates thatwhile stoker, bubbling bed or fluidized bed boilers at major source 11 0 11paper mills are currently designed to combust both fuel oil and CTRTs, few, ifany, 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 ofstart-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 ofemissions standards for boilers and process heaters under section 112 of the Clean Air Act. In that context, based on the information submitted by industry (including petitioners and others), EPA concluded that units that combust solid fuels generally used fuel oil or natural gas only as a startup fuel. 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 FR 32006, 32017. For these reasons, EPA treated these units as units designed to combust solid fuels (including biomass). Further, the information submitted for the ICR indicated that some biomass units may combust fuel oil at other times, for example, for transient flame stability purposes ifthey are combusting biomass with a high moisture content. However, the ICR did not indicate the amount offuel oil being combusted, orwhether fuel oil was com busted alone or in conjunction with solid fuel, such as biomass. Therefore, at the time ofthe development ofthe 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 com busted fuel oil as part of normal operation. 

### Information related ta 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 and listed as a HAP under CAA 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 The document provided additional information regarding {a) the presence ofdibenzofuran in creosote and creosote-treated wood, and {b) whether the presence ofdibenzofuran can indicate the concurrent presence of the polychlorinated versions ofthese compounds, viz., polychlorinated dibenzo p-dioxins and dibenzofurans {PCDD/F-often collectively termed dioxins)
. The petitioners' data confirms the presence ofdibenzofurans. Petitioners acknowledged that coa l tar creosote used in preparing railroad ties may have levels ofdibenzofuran 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 bythe petitioners, 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 the petitioners explanation that dibenzofuran present in the CTRTs should not result in the formation ofdioxins, but as a HAP itself, dibenzofuran is still appropriate to include in the list of SVOCs for comparison to traditional fuels. !IOl) 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. As discussed previously, the March 2011 NHSM final rule noting the presence of hexachlorobenzene and dinitrotoluene, suggested that creosote-treated lumber include contaminants at levels that are not comparable to 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 CTRTs are a categorical non-waste when combusted in units designed 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 concentratio ns {which would include dinitrotoluene and hexachlorobenzene) in CTRTs would be less that those found in fuel oil, and in fact, the 2012 data referenced in today's proposal showed non-detects for those two contaminants. c. O t her Relevant F actors in a Categorical Non-Waste Determination for CTRT In their request for a categorical listing of CTRTs 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 petitioners 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. They argue that by conducting such balancing, the Agency cou ld 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. Thus, the petitioners request that the Agency re-define or ignore the "design to burn " concept, as currently interpreted for the purposes ofthis categorical listing. In arguing that the
**Age~cy** can re-define or ignore the " design to burn" concept, petitioners id entified additional 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. 11 041051 • 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. 1106lAs 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 ofthe legitimacy criteria, or other relevant factors, including the contaminant legitimacy criterion. In particular, the petitioners argue that any biomass material regardless ofthe contaminant or how contaminated it is, should be considered a non-waste fuel. Purchase ofthe 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 remaining in the material 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 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 thecontaminant levels in biomass, the traditional fuel the units combusting CTRT are designed to burn. As discussed, there is a limit to the levels ofsuch 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 CTRTs are not functionally the same as comparable traditional fuels since it must be processed byreclamation 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 CTRTs are integral to the production process. In a previous categorical determination for resinated wood, the Agency did conclude that the 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 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 ofthe 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. 17llAmerican 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.

' 741M.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 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). Ofthe 14 entities, 9 companies are currently firing or have fired CTRT within the past two years. Information on pulp and paper and utility sources currently utilizing CTRT indicates that several ofthese sources use between 5,000 and 70,000 tons of CTRT peryear. 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. 1 791 American Forest and Paper Association and American Wood Council's letter to George Faison, EPA. March 7, 2013. 1 801Petition for Determination Identifying Non-Hazardous Secondary Treated Wood Biomass as a NonWaste under 40 CFR 241.4(a). Treated Wood Council April 2013.'811 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.

'821 American Forest and Paper Association and American Wood Council's letter to George Faison, EPA. March 7, 2013 .

'831 Examples of combustors utilizing a variety oftraditional 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, and landfill gas. February 2013.
' 841 S ee 78 FR 9149

'85lThe 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 Safety Data Sheets for coal tar creosote (which indicated the potential presence of biphenyl and quinoline), and the absence ofdioxin 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. fS9l Eva luatio n of Used Railroad Ties Treated with Creosote for Polynuclear Organic Material which includes Polynuclear Aromatic Hydrocarbons
. Janua ry 2013. URS Corporation on behalf ofAmerican Association of Railroads.

'90l Fuel oils means fuel oils 1 -6, including distillate, residual, kerosene, diesel, and other petroleum based oils. It does not incl ude 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. f92l 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. !93l 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
. f 94l Fuel analysis data for unadulterated time. USEPA, Office ofAir Quality Planning and Standards, Emissions Data for Boilers and Process Heaters Containing Stack Test, CEM & Fuel Analysis DataReported 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 96lWe 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 coa l, 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 ifthe unit is also designed to burn that material. 1 97lWe note that for several SVOCs-cresols, hexach lorobenzene, 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 compa rabl e. 1 98lAmerican Forest and Paper Association and American Wood Council's letter to George Faison, EPA. March 

### 7, 2013. 1 99lAmerican 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 peryear or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants. 1102lAmerican Forest and Paper Association and American Wood Council- Letter to George Faison, EPA March 

### 7, 2013. UOllWhen 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 regu lations and is consistent with monitoring standards under CAA sections 112 and 129. See 78 FR 9146 for further information.