Attachment A 

Rule Language and Preamble Language that is Consistent with a Contaminant by 

Contaminant and with a Fuel by Fuel Comparison Approach

Rule Language: 

The non-hazardous secondary material must contain contaminants at levels comparable 

in concentration to or lower than those in traditional fuels which the combustion unit is 

designed to burn. Such comparison is to be based on a direct comparison of the 

contaminant levels in the nonhazardous secondary material to the traditional fuel itself. 

40 C.F.R. 241.3(d)(1)(iii). 

While the first sentence is written the plural, the second sentence is written in the 

singular. 

Contaminants means any constituent in non-hazardous secondary materials that will 

result in emissions of the air pollutants identified in Clean Air Act section 112(b) or the 

nine pollutants listed under Clean Air Act section 129(a)(4)) when such non-hazardous

secondary materials are burned as a fuel or used as an ingredient, including those 

constituents that could generate products of incomplete combustion. 40 C.F.R. 241.2. 

Any constituent is written in the singular. 

Preamble Language.

Comparison to one contaminant: 

Lead: 

A non-hazardous secondary material contains 500 parts per million (ppm) of lead, while

the traditional fuel that would or could be burned in the combustion unit contains 475 

ppm of lead. These levels would be considered comparable (since it falls within a small 

acceptable range) and thus, would meet this factor. If, on the other hand, the level of lead

in the non-hazardous secondary material was 1,000 ppm, these levels would not be 

comparable and it may indicate that the nonhazardous secondary material was being 

burned to dispose of the material and that the activity is sham recycling 76 Fed. Reg. at 

15524.

Barium: 

A traditional fuel contains no detectable amounts of barium, while the non-hazardous 

secondary material contains a minimal amount of barium (e.g., 1 ppm). In this situation, 

the levels would be considered comparable since it falls within a small acceptable range.
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If, however, the barium were at much higher levels in the non-hazardous secondary 

material (such as 50 ppm), the levels would not be comparable and it may indicate 

discard of the barium and sham recycling. 76 Fed. Reg. at 15524.

Formaldehyde: 

The existing data we have is that resinated wood residuals contain ‘‘free’’ formaldehyde 

at levels less than 0.02 percent (or 200 ppm). In addition, new rules, as mandated by the 

CARB Composite Wood ATCM, per new Public Law 111–199, will reduce the 

formaldehyde levels even further to levels that are comparable to unadulterated wood. 

We also have limited data on the formaldehyde levels in traditional fuels. Specifically, we 

have limited data that natural wood has between 0.6 and 8.5 ppm of formaldehyde, but 

we have no data on formaldehyde levels in other traditional fuels, such as coal, oil, and 

natural gas. We do know, however, that organic materials produce formaldehyde. For 

example, studies have shown that formaldehyde is generated from coal piles. Thus, 

considering the fact that new rules will reduce the amount of formaldehyde to levels 

comparable to unadulterated wood, we have concluded that resinated wood residuals 

when burned as a fuel by the generator or outside the control of the generator and not 

discarded should be considered a non-waste fuel. However, as we have noted elsewhere, 

the generator of these secondary materials would still need to demonstrate that such 

residuals meet the legitimacy criteria. Thus, they would need to show that the levels of 

formaldehyde, as well as other possible contaminants, in the resinated wood residuals 

are at levels comparable to those found in traditional fuels, which in this case would be 

natural wood. We would note that we would not consider levels of formaldehyde of 200 

ppm or slightly less to be comparable since the levels in unadulterated wood are at least 

two orders of magnitude lower. The levels would need to be lower to be considered 

comparable to those found in natural wood. Id. 

Chlorine:

The proposed rule acknowledged a general lack of data regarding contaminant levels in 

pulp and paper sludges and specifically requested data on the issue in order to make a 

determination of whether pulp and paper sludges meets the third criterion of comparable 

contaminant levels to traditional fuels. The information we received indicates that these 

nonhazardous secondary materials meet the contaminant legitimacy criterion. We note 

that there is one sample in the submitted data set that has a chlorine concentration of 

16,550 ppm. We do not consider this to be comparable to the levels found in coal and, 

where it is replacing coal, would consider this material to be a solid waste. However, 

since this was the only sample with such a high concentration of chlorine, we do not think 

that it is representative of pulp and paper sludges generally.. 76 Fed. Reg. at 15488 

[C]hlorine levels in pulp and paper sludges should particularly be monitored and 

evaluated as part of a plants determination that their pulp and paper sludges meet the 

contaminant legitimacy criterion. 76 Fed. Reg. at 15489. 
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Hexachlorobenzene

Even though most creosote-treated wood is non-hazardous, the presence of

hexachlorobenze[ne], a CAA 112 HAP, as well s the other HAPs, in creosote-treated 

lumber suggests that creosote-treated wood includes[s] contaminants at levels that are 

not comparable to those found in wood or coal, the fuel that creosote-treated wood would 

replace.

Evaluating contaminants as a group:

Another commenter argues that any comparison between contaminant levels in the nonhazardous secondary material and contaminant levels in traditional fuels should consider 

the entire characteristics of the material. Some non-hazardous secondary materials may 

have high concentrations of some constituents and low concentrations of others, relative 

to traditional fuels. Thus, decisions regarding legitimacy will not always be clear cut and 

the overall characteristics need to be considered qualitatively. In addition, given the 

variability of constituent concentrations in traditional fuels and non-hazardous 

secondary materials, solid waste determinations which requires a comparison, should

allow for such variability in a reasonable manner. 

. . . . .

We disagree with the commenters that comparison between contaminant levels 

in the non-hazardous secondary material and contaminant levels in traditional fuels 

should consider the entire characteristics of the material. Such an approach would 

suggest that contaminants can be present in the nonhazardous secondary material at 

levels that are not comparable in concentration to those contained in traditional fuel 

products, which could result in contaminants being combusted as a means of discarding 

them. 76 Fed. Reg. at 15525. 

Comparison to one fuel type: 

The data provided by one company demonstrates that C&D-derived wood can be 

sufficiently processed to meet the legitimacy criterion for four contaminants, even when 

these contaminants are compared to untreated wood concentrations presented in the 

background document. ... A complete determination, however, would include As and Cr 

concentrations. 76 Fed. Reg. at 15485.