6688 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 241 

[EPA–HQ–RCRA–2013–0110; FRL–9929–56– 

OLEM] 

RIN–2050–AG74 

Additions to List of Categorical NonWaste Fuels 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is issuing 

amendments to the Non-Hazardous 

Secondary Materials rule, initially 

promulgated on March 21, 2011, and 

amended on February 7, 2013, under the 

Resource Conservation and Recovery 

Act. The Non-Hazardous Secondary 

Materials rule generally established 

standards and procedures for 

identifying whether non-hazardous 

secondary materials are solid wastes 

when used as fuels or ingredients in 

combustion units. In the February 2013 

amendments, the EPA listed particular 

non-hazardous secondary materials as 

‘‘categorical non-waste fuels’’ provided 

certain conditions are met. Persons 

burning these non-hazardous secondary 

materials do not need to evaluate them 

under the general case-by-case 

standards and procedures that would 

otherwise apply to non-hazardous 

secondary materials used in combustion 

units. This action adds three materials 

to the list of categorical non-waste fuels: 

Construction and demolition wood 

processed from construction and 

demolition debris according to best 

management practices; paper recycling 

residuals generated from the recycling 

of recovered paper, paperboard and 

corrugated containers and combusted by 

paper recycling mills whose boilers are 

designed to burn solid fuel; and creosote 

treated railroad ties that are processed 

and then combusted in the following 

types of units: Units designed to burn 

both biomass and fuel oil as part of 

normal operations and not solely as part 

of start-up or shut-down operations, and 

units at major source pulp and paper 

mills or power producers subject to 40 

CFR part 63, subpart DDDDD that 

combust CTRT and had been designed 

to burn biomass and fuel oil, but are 

modified (e.g. oil delivery mechanisms 

are removed) in order to use natural gas 

instead of fuel oil, as part of normal 

operations and not solely as part of 

start-up or shut-down operations. 

DATES: This rule is effective March 9, 

2016. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–RCRA–2013–0110. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically at http:// 

www.regulations.gov or in hard copy at 

the RCRA Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave. 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m. Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the RCRA Docket is (202) 

566–0270. 

FOR FURTHER INFORMATION CONTACT: 

George Faison, Office of Resource 

Conservation and Recovery, Materials 

Recovery and Waste Management 

Division, MC 5304P, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460; 

telephone number: (703) 305–7652; 

email: faison.george@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information presented in this preamble 

is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Why is the EPA taking this action? 

II. Statutory Authority 

III. Introduction-Summary of Regulations 

Being Finalized 

IV. Background 

A. History of the NHSM Rulemakings 

B. Background to Final Rule 

C. How does the EPA make categorical 

non-waste determinations? 

V. Comments on the Proposed Rule and 

Rationale for Final Decisions 

A. Construction and Demolition Debris 

Processed According to Best 

Management Practices 

1. Detailed Description of C&D Wood 

2. C&D Wood Under Current NHSM Rules 

3. Scope of the Proposed Rule and Final 

Categorical Non-Waste Listing for C&D 

Wood 

4. Rationale for Final Rule 

5. Summary of Comments Requested 

6. Response to Comments 

B. Paper Recycling Residuals Used as Fuel 

at Paper Recycling Mills 

1. Detailed Description of Paper Recycling 

Residuals 

2. PRRs Under Previous NHSM Rules 

3. Scope of the Proposed Rule and Final 

Categorical Non-Waste Listing for 

Certain PRRs 

4. Rationale for Final Rule 

5. Summary of Comments Requested 

6. Responses to Comments 

C. Creosote-Treated Railroad Ties (CTRTs) 

1. Detailed Description of CTRTs 

2. CTRTs Under Previous NHSM Rules 

3. Scope of the Proposed Rule and Final 

Categorical Non-Waste Listing for CTRT 

4. Rationale for Final Rule 

5. Summary of Comments Requested 

6. Responses to Comments 

VI. Technical Corrections 

A. Change to 40 CFR 241.3(b)(2) 

B. Change to 40 CFR 241.3(c)(1) 

C. Change to 40 CFR 241.3(d)(1)(iii) 

VII. Effect of This Rule on Other Programs 

VIII. State Authority 

A. Relationship to State Programs 

B. State Adoption of the Rulemaking 

IX. Cost and Benefits 

X. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act (CRA) 

I. General Information 

A. Does this action apply to me? 

Categories and entities potentially 

affected by this action, either directly or 

indirectly, include, but may not be 

limited to the following: 


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1 40 CFR 241.2 defines non-hazardous secondary 

material as a secondary material that, when 

discarded, would not be identified as a hazardous 

waste under 40 CFR part 261. 

GENERATORS AND POTENTIAL USERS a OF THE NEW MATERIALS TO BE ADDED TO THE LIST OF CATEGORICAL NONWASTE FUELS

Primary industry category or sub category NAICSb

Utilities ................................................................................................................................................................................................. 221 

Construction of Buildings ..................................................................................................................................................................... 236 

Site Preparation Contractors ............................................................................................................................................................... 238910 

Manufacturing ...................................................................................................................................................................................... 31, 32, 33 

Wood Product Manufacturing .............................................................................................................................................................. 321 

Sawmills ............................................................................................................................................................................................... 321113 

Wood Preservation (includes crosstie creosote treating) .................................................................................................................... 321114 

Pulp, Paper, and Paper Products ........................................................................................................................................................ 322 

Cement manufacturing ........................................................................................................................................................................ 32731 

Railroads (includes line haul and short line) ....................................................................................................................................... 482 

Scenic and Sightseeing Transportation, Land (Includes: Railroad, scenic and sightseeing) ............................................................. 487110 

Port and Harbor Operations (Used railroad ties) ................................................................................................................................ 488310 

Landscaping Services .......................................................................................................................................................................... 561730 

Solid Waste Collection ......................................................................................................................................................................... 562111 

Solid Waste Landfill ............................................................................................................................................................................. 562212 

Solid Waste Combustors and Incinerators .......................................................................................................................................... 562213 

Marinas ................................................................................................................................................................................................ 713930 

a Includes: Major Source Boilers, Area Source Boilers, and Solid Waste Incinerators. 

b NAICS—North American Industrial Classification System. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities potentially 

impacted by this action. This table lists 

examples of the types of entities of 

which the EPA is aware that could 

potentially be affected by this action. 

Other types of entities not listed could 

also be affected. To determine whether 

your facility, company, business, 

organization, etc., is affected by this 

action, you should examine the 

applicability criteria in this rule. If you 

have any questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

B. Why is the EPA taking this action? 

The Non-Hazardous Secondary 

Materials (NHSM) regulations at 40 CFR 

part 241 generally establish standards 

and procedures for identifying whether 

NHSMs are solid wastes when used as 

fuels or ingredients in combustion units. 

In the February 2013 amendments, the 

EPA listed particular NHSMs as 

‘‘categorical non-waste fuels’’ provided 

certain conditions are met. Persons 

burning these NHSMs do not need to 

evaluate them under the general caseby-case standards and procedures that 

would otherwise apply to NHSMs used 

in combustion units. This action adds 

three materials to the list of categorical 

non-waste fuels: (1) Construction and 

demolition (C&D) wood processed from 

C&D debris according to best 

management practices, (2) paper 

recycling residuals generated from the 

recycling of recovered paper, 

paperboard and corrugated containers 

and combusted by paper recycling mills 

whose boilers are designed to burn solid 

fuels; and (3) creosote treated railroad 

ties that are processed and then 

combusted in the types of units 

described herein. 

Abbreviations and Acronyms. The 

following acronyms and abbreviations 

are used in this document. 

ATCM Airborne Toxic Control Measure 

BMP Best management practice 

Btu British thermal unit 

C&D Construction and demolition 

CAA Clean Air Act 

CARB California Air Resources Board 

CBI Confidential business information 

CCA Chromated copper arsenate 

CFR Code of Federal Regulations 

CISWI Commercial and Industrial Solid 

Waste Incinerator 

CTRT Cresosote-treated railroad tie 

EPA U.S. Environmental Protection Agency 

FR Federal Register 

HAP Hazardous air pollutant 

ICR Information collection request 

MACT Maximum achievable control 

technology 

NAICS North American Industrial 

Classification System 

ND Non-detect 

NESHAP National emission standards for 

hazardous air pollutants 

NHSM Non-hazardous secondary material 

OCC Old Corrugated Cardboard 

OMB Office of Management and Budget 

PAH Polycyclic aromatic hydrocarbons 

ppm Parts per million 

PRR Paper recycling residual 

PVC Polyvinyl chloride 

RCRA Resource Conservation and Recovery 

Act 

RIN Regulatory information number 

SBA Small Business Administration 

SO2 Sulfur dioxide 

SVOC Semi-volatile organic compound 

TCLP Toxicity characteristic leaching 

procedure 

UMRA Unfunded Mandates Reform Act 

UPL Upper prediction limit 

U.S.C. United States Code 

VOC Volatile organic compound 

XRF X-ray fluorescence 

II. Statutory Authority 

The EPA is issuing final amendments 

to list certain NHSMs as categorical 

non-waste fuels in 40 CFR 241.4(a) 

under the authority of sections 

2002(a)(1) and 1004(27) of the Resource 

Conservation and Recovery Act (RCRA), 

as amended, 42 U.S.C. 6912(a)(1) and 

6903(27). Section 129(a)(1)(D) of the 

Clean Air Act (CAA) directs the EPA to 

establish standards for Commercial and 

Industrial Solid Waste Incinerators 

(CISWI), which burn solid waste. 

Section 129(g)(6) of the CAA provides 

that the term ‘‘solid waste’’ is to be 

established by the EPA under RCRA (42 

U.S.C. 7429). Section 2002(a)(1) of 

RCRA authorizes the Agency to 

promulgate regulations as are necessary 

to carry out its functions under the Act. 

The statutory definition of ‘‘solid waste’’ 

is stated in RCRA section 1004(27). 

III. Introduction-Summary of 

Regulations Being Finalized 

Regulations concerning NHSMs used 

as fuels or ingredients in combustion 

units are codified in 40 CFR part 241.1

This action amends the part 241 

regulations by adding three NHSMs to 

the list of categorical non-waste fuels 

codified in § 241.4(a). These new 

categorical listings are for: 

• Construction and demolition (C&D) 

wood processed from C&D debris 

according to best management practices. 


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2 40 CFR 241.2 defines power producer as a boiler 

unit producing electricity for sale to the grid. The 

term does not include units meeting the definition 

of electricity generating unit under 40 CFR 

63.10042 of the Utility Mercury and Air Toxics 

Standards rule. 

3See October 14, 2011, Letter from Administrator 

Lisa P. Jackson to Senator Olympia Snowe. A copy 

of this letter has been placed in the docket for this 

final rule (EPA–HQ–RCRA–2008–1873). 

• Paper recycling residuals generated 

from the recycling of recovered paper, 

paperboard and corrugated containers 

and combusted by paper recycling mills 

whose boilers are designed to burn solid 

fuel. 

• Creosote treated railroad ties that 

are processed and then combusted in 

the following types of units: Units 

designed to burn both biomass and fuel 

oil as part of normal operations and not 

solely as part of start-up or shut-down 

operations, and units at major source 

pulp and paper mills or power 

producers 2 subject to 40 CFR part 63, 

subpart DDDDD that combust CTRT and 

had been designed to burn biomass and 

fuel oil, but are modified (e.g. oil 

delivery mechanisms were removed) in 

order to use natural gas instead of fuel 

oil, as part of normal operations and not 

solely as part of start-up or shut-down 

operations. 

(Refer to section V of this preamble or 

the regulatory text for a full description 

of the categorical listings). 

Determining whether a material is a 

solid waste is of particular importance 

as it relates to CAA section 129. That 

section states the term ‘‘solid waste’’ 

shall have the meaning ‘‘established by 

the Administrator pursuant to the Solid 

Waste Disposal Act.’’ Id at 7429(g)(6). 

The Solid Waste Disposal Act, as 

amended, is commonly referred to as 

the Resource Conservation and 

Recovery Act or RCRA. If a material is 

a solid waste under RCRA, a 

combustion unit burning that material is 

required to meet the CAA section 129 

emission standards for solid waste 

incineration units. If the material is not 

a solid waste, combustion units are 

required to meet the CAA section 112 

emission standards for commercial, 

industrial, and institutional boilers or, if 

the combustion unit is a cement kiln, 

the CAA section 112 emissions 

standards for Portland cement kilns. 

Under CAA section 129, the term ‘‘solid 

waste incineration unit’’ is defined, in 

pertinent part, to mean ‘‘a distinct 

operating unit of any facility which 

combusts any solid waste material from 

commercial or industrial establishments 

. . .’’ 42 U.S.C. 7429(g)(1). The courts 

have determined that the CAA 

unambiguously requires any unit that 

combusts ‘‘any solid waste material at 

all’’—regardless of whether the material 

is being burned for energy recovery—to 

be regulated as a solid waste 

incineration unit. See NRDC v. EPA 

(489 F.3d 1250 (D.C. Cir. 2007)). 

RCRA defines ‘‘solid waste’’ as ‘‘. . . 

any garbage, refuse, sludge from a waste 

treatment plant, water supply treatment 

plant, or air pollution control facility 

and other discarded material . . . 

resulting from industrial, commercial, 

mining, and agricultural operations, and 

from community activities . . .’’ (RCRA 

section 1004 (27) (emphasis added)). 

The key concept is that of ‘‘discard’’ 

and, in fact, this definition turns on the 

meaning of the phrase, ‘‘other discarded 

material,’’ since this term encompasses 

all other examples provided in the 

definition. In determining the meaning 

of discard, the courts have determined 

that the ordinary, plain English 

definition controls, i.e., discard means 

‘‘disposed of,’’ ‘‘thrown away’’ or 

‘‘abandoned.’’ See American Mining 

Congress v. EPA 824 F. 2d 1177 (D.C. 

Dir. 1987); see 76 FR 15460 for a 

detailed discussion on the RCRA 

definition of solid waste and CAA 

section 129. 

IV. Background 

A. History of the NHSM Rulemakings 

The Agency first solicited comments 

on how the RCRA definition of solid 

waste should apply to NHSMs when 

used as fuels or ingredients in 

combustion units in an advanced notice 

of proposed rulemaking (ANPRM), 

which was published in the Federal 

Register on January 2, 2009 (74 FR 41). 

We then published an NHSM proposed 

rule on June 4, 2010 (75 FR 31844), 

which the EPA made final on March 21, 

2011 (76 FR 15456). 

In the March 21, 2011 rule, the EPA 

finalized standards and procedures to be 

used to identify whether NHSMs are 

solid wastes when used as fuels or 

ingredients in combustion units. 

‘‘Secondary material’’ was defined for 

the purposes of that rulemaking as any 

material that is not the primary product 

of a manufacturing or commercial 

process, and can include post-consumer 

material, off-specification commercial 

chemical products or manufacturing 

chemical intermediates, post-industrial 

material, and scrap (codified in 40 CFR 

241.2). ‘‘Non-hazardous secondary 

material’’ is a secondary material that, 

when discarded, would not be 

identified as a hazardous waste under 

40 CFR part 261 (codified in 40 CFR 

241.2). Traditional fuels, including 

historically managed traditional fuels 

(e.g., coal, oil, natural gas) and 

‘‘alternative’’ traditional fuels (e.g., 

clean cellulosic biomass) are not 

secondary materials and thus, are not 

solid wastes under the rule unless 

discarded. 

A key concept under the March 21, 

2011 rule is that NHSMs used as nonwaste fuels in combustion units must 

meet the legitimacy criteria specified in 

40 CFR 241.3(d)(1). Application of the 

legitimacy criteria helps ensure that the 

fuel product is being legitimately and 

beneficially used and not simply being 

discarded through combustion (i.e., via 

sham recycling). To meet the legitimacy 

criteria, the NHSM must be managed as 

a valuable commodity, have a 

meaningful heating value and be used as 

a fuel in a combustion unit that recovers 

energy, and contain contaminants or 

groups of contaminants at 

concentrations comparable to (or lower 

than) those in traditional fuels which 

the combustion unit is designed to burn. 

Based on these criteria, the March 21, 

2011 rule identified the following 

NHSMs as not being solid wastes: 

• The NHSM is used as a fuel and 

remains under the control of the 

generator (whether at the site of 

generation or another site the generator 

has control over) that meets the 

legitimacy criteria (40 CFR 241.3(b)(1)); 

• The NHSM is used as an ingredient 

in a manufacturing process (whether by 

the generator or outside the control of 

the generator) that meets the legitimacy 

criteria (40 CFR 241.3(b)(3)); 

• Discarded NHSM has been 

sufficiently processed to produce a fuel 

or ingredient that meets the legitimacy 

criteria (40 CFR 241.3(b)(4)); or 

• Through a case-by-case petition 

process, it has been determined that the 

NHSM handled outside the control of 

the generator has not been discarded 

and is indistinguishable in all relevant 

aspects from a fuel product, and meets 

the legitimacy criteria (40 CFR 241.3(c)). 

In October 2011, the Agency 

announced it would be initiating a new 

rulemaking proceeding to revise certain 

aspects of the NHSM rule.3 On February 

7, 2013, the EPA published a final rule, 

which addressed specific targeted 

amendments and clarifications to the 40 

CFR part 241 regulations (78 FR 9112). 

These revisions and clarifications were 

limited to certain issues on which the 

Agency had received new information, 

as well as targeted revisions that the 

Agency believed were appropriate in 

order to allow implementation of the 

rule as the EPA originally intended. The 

amendments modified 40 CFR 241.2 


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4See 78 FR 9112 (February 7, 2013) for a 

discussion of the rule and the Agency’s basis for its 

decisions. 

5 In the March 21, 2011 NHSM rule (76 FR 

15456), EPA identified two NHSMs as not being 

solid wastes, although persons would still need to 

make individual determinations that these NHSMs 

meet the legitimacy criteria: (1) Scrap tires used in 

a combustion unit that are removed from vehicles 

and managed under the oversight of established tire 

collection programs and (2) resinated wood used in 

a combustion unit. However, in the February 2013 

NHSM rule, the Agency amended the regulations 

and categorically listed these NHSMs as not being 

solid wastes. 6 78 FR 9160. 

7As noted above, the Agency also received a 

petition from the Treated Wood Council asking that 

non-hazardous treated wood be categorically 

listed—a broad category that would include 

creosote-treated railroad ties. Other treated wood 

Continued 

and 241.3, added 40 CFR 241.4, and 

included the following: 4

• Revised Definitions: The EPA 

revised three definitions discussed in 

the proposed rule: (1) ‘‘clean cellulosic 

biomass,’’ (2) ‘‘contaminants,’’ and (3) 

‘‘established tire collection programs.’’ 

In addition, based on comments 

received on the proposed rule, the 

Agency revised the definition of 

‘‘resinated wood.’’ 

• Contaminant Legitimacy Criterion 

for NHSMs Used as Fuels: The EPA 

issued revised contaminant legitimacy 

criterion for NHSMs used as fuels to 

provide additional details on how 

contaminant-specific comparisons 

between NHSMs and traditional fuels 

may be made. The revisions include: (1) 

The ability to compare groups of 

contaminants where technically 

reasonable; (2) clarification that 

‘‘designed to burn’’ means can burn or 

does burn, and not necessarily 

permitted to burn; (3) the ability to use 

traditional fuel data from national 

surveys and other sources beyond a 

facility’s current fuel supplier; and (4) 

the ability to use ranges of traditional 

fuel contaminant levels when making 

contaminant comparisons, provided the 

variability of the NHSM contaminant 

levels is also considered. 

• Categorical Non-Waste 

Determinations for Specific NHSMs 

Used as Fuels. The EPA codified 

determinations that certain NHSMs are 

non-wastes when used as fuels. If a 

material is categorically listed as a nonwaste fuel, persons that generate or burn 

these NHSMs will not need to make 

individual determinations, as required 

under the existing rules, that these 

NHSMs meet the legitimacy criteria. 

Except where otherwise noted, 

combustors of these materials will not 

be required to provide further 

information demonstrating their nonwaste status. Based on all available 

information, the EPA determined the 

following NHSMs are not solid wastes 

when burned as a fuel in combustion 

units and has categorically listed them 

in 40 CFR 241.4(a).5

— Scrap tires that are not discarded and 

are managed under the oversight of 

established tire collection programs, 

including tires removed from vehicles 

and off-specification tires; 

— Resinated wood; 

— Coal refuse that has been recovered 

from legacy piles and processed in the 

same manner as currently-generated 

coal that would have been refuse if 

mined in the past; 

— Dewatered pulp and paper sludges 

that are not discarded and are 

generated and burned on-site by pulp 

and paper mills that burn a significant 

portion of such materials where such 

dewatered residuals are managed in a 

manner that preserves the meaningful 

heating value of the materials. 

• Rulemaking Petition Process for 

Other Categorical Non-Waste 

Determinations: EPA made final a 

process in 40 CFR 241.4(b) that provides 

persons an opportunity to submit a 

rulemaking petition to the 

Administrator, seeking a determination 

for additional NHSMs to be 

categorically listed in 40 CFR 241.4(a) as 

non-waste fuels, if they can demonstrate 

that the NHSM meets the legitimacy 

criteria or, after balancing the legitimacy 

criteria with other relevant factors, EPA 

determines that the NHSM is not a solid 

waste when used as a fuel. Based on 

these non-waste categorical 

determinations, as discussed above, 

facilities burning NHSMs that meet the 

categorical listing description will not 

need to make individual determinations 

that the NHSM meets the legitimacy 

criteria or provide further information 

demonstrating their non-waste status on 

a site-by-site basis, provided they meet 

the conditions of the categorical listing. 

Please refer to section IV.C of this 

preamble for details on the petition 

process. 

B. Background to Final Rule 

As discussed in the February 2013 

final rule,6 the Agency had received 

comments that additional NHSMs 

should be categorically listed as nonwaste fuels for which the Agency had 

not requested information as a part of 

that proposal. We did not respond to 

such comments and issues since they 

were beyond the scope of that 

rulemaking and indicated that, because 

the Agency did not specifically solicit 

comments or propose that those NHSMs 

be categorically listed in 40 CFR 

241.4(a), the Agency must go through 

notice and comment rulemaking before 

making a final decision. The February 

2013 rule noted, however, that two 

NHSMs—paper recycling residuals 

(including old corrugated cardboard 

(OCC) rejects) and construction and 

demolition debris processed pursuant to 

best practices—would be good 

candidates for a future proposal based 

on information provided to the Agency 

and that EPA expected to propose those 

listings in a subsequent rulemaking. 

To supplement the comments 

identified in the February 2013 rule, the 

Agency received additional information 

on these two NHSMs from stakeholders 

(see section V of this preamble). As 

discussed in the following sections, the 

EPA has determined the information 

received to date, when taken together, 

supports a categorical determination of 

these materials as non-waste fuels and 

is today listing them as categorical nonwaste fuels in 40 CFR 241.4(a). 

In addition to paper recycling 

residuals and construction and 

demolition debris, the Agency identified 

creosote-treated railroad ties in the 

February 2013 final rule as a potential 

candidate for a categorical non-waste 

listing based on comments from 

stakeholders. However, the Agency 

indicated that additional information 

would need to be submitted before this 

NHSM could be addressed. If such 

information supported the 

representations made by industry—that 

is, the American Forest & Paper 

Association (AF&PA) and the American 

Wood Council—EPA stated that it 

expected to propose a categorical listing 

for this material as well. Finally, we 

noted in the February 2013 final rule 

that the Agency received a letter from 

the Treated Wood Council asking that 

non-hazardous treated wood be 

categorically listed—a broad category 

that would include creosote-treated 

railroad ties. The Agency noted it was 

in the process of reviewing the 

information in the letter and would 

consider whether to propose a 

categorical listing for this broader set of 

treated wood material. 

The Agency has reviewed the 

information submitted from 

stakeholders regarding creosote-treated 

railroad ties. As discussed in the 

following sections, the EPA has 

determined that the information 

received to date, when taken together, 

supports a categorical determination for 

creosote-treated railroad ties when 

combusted in the types of units 

described herein and is listing them as 

categorical non-wastes fuels in 40 CFR 

241.4(a).7 (refer to section V of this 


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addressed in the petition included waterborne 

borate-based preservatives, waterborne organicbased preservatives, waterborne copper-based wood 

preservatives (ammoniacal/alkaline copper quat, 

copper azole, copper HDO, alkaline copper betaine, 

or copper naphthenate); creosote; oilborne copper 

naphthenate; pentachlorophenol; or dual-treated 

with any of the above. The Agency is in the process 

of reviewing that petition and supplementary 

information submitted subsequent to the petition. 

Accordingly, while cresosote treated wood railroad 

ties is included in the current rule, other treated 

wood materials identified in the Treated Wood 

Council’s petition are not addressed in this action. 

If upon completion of the Agency’s review, the 

information supports a categorical listing of one or 

more of these other treated wood materials, the 

Agency would propose those materials in a future 

rulemaking. See also discussion under Comments 

and Information Received on Other Types of 

Treated Wood in section V.A.6.c.. 

8For a full discussion regarding the petition 

process for receiving a categorical non-waste 

determination, see 78 FR 9111, February 7, 2013 

(page 9158–9159). 

9Supplementary information received from by 

M.A. Energy Resources (February 2013) in support 

of the crosstie derived fuel was submitted as a 

categorical petition in accordance 40 CFR 241.4(b). 

10Two revisions have been made to the definition 

of C&D wood. Please refer to section V.A.3. of this 

preamble for a discussion of the revisions to the 

definition of C&D wood for the final rule. 

11Materials Characterization Paper: Construction 

and Demolition Materials. February 3, 2011. EPA– 

HQ–RCRA–2008–0329–1811. 

12Clean C&D wood is included in the definition 

of ‘‘clean cellulosic biomass’’ and thus, may be 

combusted as a traditional fuel if it does not contain 

contaminants at concentrations not normally 

associated with virgin wood. Conversely, C&D 

wood that is not ‘‘clean’’ is that which must be 

processed to remove contaminants such as leadpainted wood, treated wood containing 

contaminants, such as arsenic and chromium, 

metals and other non-wood materials. (See 76 FR 

15485, March 21, 2011; 78 FR 9138–39, February 

7, 2013; and 40 CFR 241.2). 

preamble or the regulatory text for a full 

description of this categorical listing). 

C. How does the EPA make categorical 

non-waste determinations? 

The February 7, 2013 revisions to the 

NHSM rule discuss the process and 

decision criteria whereby the Agency 

would make additional categorical nonwaste determinations. (See 78 FR 9158.) 

While the categorical non-waste 

determinations in this action are not 

based on rulemaking petitions, the 

criteria the EPA used to assess these 

NHSMs as categorical non-wastes match 

the criteria to be used by the 

Administrator to determine whether to 

grant or deny the categorical non-waste 

petitions.8 9 These determinations 

follow the criteria set out in 40 CFR 

241.4(b)(5) to assess additional 

categorical non-waste petitions and 

follow the statutory standards as 

interpreted by the EPA in the NHSM 

rule for deciding whether secondary 

materials are wastes. Those criteria 

include: (1) Whether each NHSM has 

not been discarded in the first instance 

(i.e., was not initially abandoned or 

thrown away) and is legitimately used 

as a fuel in a combustion unit or, if 

discarded, has been sufficiently 

processed into a material that is 

legitimately used as a fuel; and, (2) if the 

NHSM does not meet the legitimacy 

criteria described in 40 CFR 241.3(d)(1), 

whether the NHSM is integrally tied to 

the industrial production process, the 

NHSM is functionally the same as the 

comparable traditional fuel, or other 

relevant factors as appropriate. 

Based on the information in the 

rulemaking record, including 

stakeholder comments, the Agency is 

amending 40 CFR 241.4(a) by listing 

three additional NHSMs as categorical 

non-wastes. Specific determinations 

regarding C&D wood, paper recycling 

residuals, and creosote-treated railroad 

ties as categorical non-wastes and how 

the information was assessed by EPA 

according to the criteria in 40 CFR 

241.4(b)(5) are discussed in detail in 

section V of this preamble. 

V. Comments on the Proposed Rule and 

Rationale for Final Decisions 

In this section, the EPA provides the 

rationale for its determination that the 

three additional NHSMs are appropriate 

for listing as categorical non-wastes, 

under certain conditions. It also 

addresses major comments the Agency 

received regarding the three NHSMs 

proposed in the April 14, 2014 rule (79 

FR 21005). 

A. Construction and Demolition Debris 

Processed According to Best 

Management Practices 

The April 14, 2014 proposed rule 

described C&D wood in detail (79 FR 

21010–11), explained the status of C&D 

wood under current rules, discussed 

comments received during previous 

proceedings, as well as the scope of the 

proposed non-waste listing (79 FR 

21011–12). The proposed rationale for 

the listing is found in the proposal at 79 

FR 21012–16 and is summarized and 

incorporated into this final rule, along 

with all sources referenced in that 

discussion and cited therein. The final 

decision in this rule is based on the 

information in the proposal and 

supporting materials in the rulemaking 

record. Any changes made to the final 

rule are based on the rationale, as 

described below. 

1. Detailed Description of C&D Wood 

As described in the proposed rule (79 

FR 21010–11) and reiterated here, 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.10

Information previously compiled by the 

Agency indicates 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 CISWI rule and the National 

Emission Standards for Hazardous Air 

Pollutants for Area and Major Industrial, 

Commercial, and Institutional Boilers 

(Boilers) rule indicate that between 4.7 

to 11.2 million tons per year of 

processed C&D wood may be burned for 

energy recovery.11

Also, because clean C&D wood is 

considered ‘‘clean cellulosic biomass’’ 

and is already excluded from being a 

solid waste,12 the Agency expected the 

proposed rule would address C&D wood 

generated predominantly from 

demolition activities. However, the 

proposal acknowledged clean C&D 

wood generated from construction 

activities that is mixed with 

contaminated C&D debris would be 

subject to the same practices and 

requirements described in the proposed 

rulemaking, because it is comingled 

with contaminated materials that would 

not constitute ‘‘clean cellulosic 

biomass.’’ The Agency finds, similarly, 

the practices and requirements adopted 

in this final rule, which are modified 

slightly from the proposal, also apply to 

the commingled materials generated 

from construction activities. No 

information was presented in this 

rulemaking to cause the Agency to find 

otherwise. 

With respect to how C&D debris is 

handled, we noted in the proposal and 

find in this final rule that, although 

contractors may segregate C&D debris at 

building sites, the common practice—at 

demolition sites in particular—is to 

send co-mingled debris to independent 

C&D recycling or processing facilities. 

At these facilities, operators recover 

wood scraps from a mixture of building 

materials that often includes metals, 

concrete, plastics, and other items that 

are unsuitable for energy recovery in 

combustion units. Some operators use 

‘‘positive sorting’’ techniques, meaning 


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13This final rulemaking does not change or 

replace existing state requirements regarding C&D 

wood. See section VIII. State Authority A. 

Relationship to State Programs of this preamble. 

14 76 FR 15485, March 21, 2011 and 78 FR 9138, 

February 7, 2013. 

15 In the February 7, 2013 final rule (78 FR 9139), 

the Agency emphasized that, ‘‘determinations that 

the cellulosic biomass used as a fuel or ingredient 

is clean, do not presuppose any testing of 

contaminant levels. Persons can use expert or 

process knowledge of the material to justify 

decisions regarding presence of contaminants.’’ 

16Recordkeeping requirements for area source 

boilers are found at 40 CFR 63.11225(c)(2)(ii), while 

recordkeeping requirements for major source boilers 

are found at 40 CFR 63.7555(d)(2). 

17While the combustor would be responsible for 

maintaining the records that such NHSM met the 

legitimacy criteria, the combustor could request that 

the person that generated the C&D wood provide 

documentation that the processing operations meet 

the definition of processing, as well as the 

legitimacy criteria, especially the contaminant 

legitimacy criterion. 

18Comments submitted on the December 23, 2011 

proposed rule are 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. 

they specifically remove wood scraps 

from the co-mingled debris, picking out 

only desirable wood and leaving all 

other C&D debris behind for disposal or 

other recycling processes. Other 

operators use ‘‘negative sorting’’ 

techniques, meaning they achieve a 

similarly clean final product by 

removing or excluding contaminated or 

otherwise undesirable material from the 

C&D debris. Regardless of whether they 

use positive or negative sorting, 

processing facilities then grind the 

recovered wood to a specified size and 

deliver it to energy recovery facilities. 

C&D wood processing facilities can 

use a variety of techniques to remove or 

exclude debris unsuitable for a product 

fuel. Typically, processors use some 

combination of source control, 

inspection, sorting, and screening to 

meet the specifications identified by 

their customers (i.e., combustion 

facilities). The nature of the incoming 

C&D debris, the extent of material 

segregation prior to arrival at the 

processing facility, whether positive or 

negative sorting is employed, and the 

scale of the processing facility (e.g., the 

degree of sorting and number of 

screening devices) help determine 

which combination of practices will be 

most effective. Individual states also 

have different requirements related to 

the processing and combustion of C&D 

wood.13 Despite the variety of options, 

the Agency finds certain practices are 

essential to ensure processing of the 

C&D debris produces a legitimate 

product fuel. These practices, described 

in the proposal as best management 

practices, have been adopted in this 

final rule with minor changes and are 

discussed later in section V.A.3. of this 

preamble. In addition to excluding or 

removing a set list of C&D materials 

known to contain contaminants (e.g., 

certain types of treated wood), 

processors must take steps to eliminate 

less obvious contaminant sources (e.g., 

lead-based paint). Consequently, the 

standards proposed and finalized in this 

document, ensure that the contaminants 

in the fuel that is burned will not be 

unpredictable, even though the sources 

of the wood may vary. 

2. C&D Wood Under Current NHSM 

Rules 

a. March 21, 2011 and February 2013 

Final Rules 

In both the March 21, 2011 and 

February 7, 2013 NHSM final rules, EPA 

discussed two scenarios under which 

the Agency would consider C&D wood 

to be a non-waste fuel.14 First, ‘‘clean’’ 

C&D wood can be burned as a 

traditional fuel without any requirement 

for testing or recordkeeping—because it 

is a ‘‘clean cellulosic biomass’’ material 

indistinguishable in composition from 

virgin wood.15 Second, 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 40 

CFR 241.2, but also how the product 

fuel meets the NHSM legitimacy criteria 

in 40 CFR 241.3(d)(1).16 17

b. 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 processed C&D wood 

(i.e., recovered from demolition 

activities) should be categorically listed 

as a non-waste fuel under 40 CFR 

241.4(a), or otherwise a non-waste.18

The commenters’ rationale for listing 

processed C&D wood as a non-waste is 

as follows. 

• It is utilized in combination with 

other biomass materials to optimize and 

manage combustion in boilers due to its 

low moisture/high heat characteristics. 

• It is sufficiently processed to 

remove impurities. 

• From a practical materials 

management standpoint, C&D materials 

are not discarded; collection of most of 

these materials is planned for, with C&D 

recycle sorting and processing yards 

receiving the materials as a destination 

and the point of generation of the fuel 

product. 

• Commenters detail the processing 

and test data available for C&D 

materials, which demonstrates their 

value as a fuel. 

• Commenters noted the EPA has 

already included clean C&D materials in 

their proposed clean cellulosic biomass 

definition for traditional fuels, but EPA 

elsewhere identifies C&D materials that 

are not clean as subject to the legitimacy 

criteria. 

The commenters argued, therefore, 

the EPA should remove doubt and list 

these materials in the newly proposed 

40 CFR 241.4(a) as a non-waste fuel 

given both their demonstrated fuel value 

and the industry that has been 

established for recycling these NHSMs 

into useful product fuel. 

Expanding further on these 

comments, several trade organizations 

submitted information in support of a 

categorical non-waste determination 

that would list processed C&D wood as 

a product fuel when burned in 

combustion units. The information 

suggested that a non-waste listing 

include all C&D wood processed in 

accordance with industry practices 

proven to produce a wood product 

meeting the NHSM legitimacy criteria. 

The commenters identified ‘‘proven 

practices’’ as the sorting (both 

mechanical and manual) of C&D 

material to separate the following 

contaminants: Non-wood material, 

wood treated with pentachlorophenol, 

chromated copper arsenic (CCA) treated 

wood, or other copper, chromium or 

arsenical preservatives, and lead 

(through the separation of either leadpainted 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 contended, to 

ensure sufficient processing occurs and 

that C&D wood products—produced by 

different processors using different 

sorting techniques—are consistently 

managed as a valuable commodity, have 

meaningful heating values, and contain 

contaminants at levels comparable to or 

lower than traditional fuels. Instead, 

they argued persons burning C&D wood 

for energy recovery only need to certify 

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 


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19Comments submitted on the December 23, 2011 

proposed rule (76 FR 80452) are included in docket: 

EPA–HQ–RCRA–2008–0329. Specifically, see the 

document ID numbers ending in –1959 and –1974. 

20 If the processed C&D wood does not meet the 

categorical listing, the wood may still be considered 

a non-waste fuel (on a case-by-case basis), although 

any combustor that burns such processed C&D 

wood would need to keep records documenting the 

materials non-waste status pursuant to 40 CFR 

63.11225(c)(2)(ii) and 40 CFR 63.7555(d)(2). 

21Although 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), operators must exclude or 

remove creosote treated wood. With respect to 

creosote and as discussed later in section V.C of this 

preamble, 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. 

22See comments and data submitted by Covanta 

(EPA –HQ–RCRA–2013–0110–0084), comments 

from American Reclamation Inc. (EPA–HQ–RCRA– 

2013–0110–0073), and comments from Genesee 

Power Station (GPS) (EPA–HQ–RCRA–2013–0110– 

0091). 

C&D wood should be regulated as a 

solid waste because they view it as 

having been discarded similar to scrap 

tires. Another commenter requested the 

EPA require testing for contamination 

based on what they described as highly 

unpredictable contaminant levels. The 

commenter referenced specific 

combustion facilities that accepted C&D 

wood, including lead-painted wood and 

CCA-treated wood, as well as plastics 

and foreign debris to support a 

requirement for testing. In addition, the 

same commenter argued that C&D wood 

should only be compared to clean 

untreated wood when conducting a 

contaminant comparison, not 

necessarily what the unit is designed to 

burn.19 The Agency’s decision on this 

final rule considers the issues raised in 

these comments on the December 2011 

proposed rule. Responses to the issues 

raised in these comments are included 

in section V.A.6. of this preamble. 

3. Scope of the Proposed Rule and Final 

Categorical Non-Waste Listing for C&D 

Wood 

Based on information in the record, 

including comments submitted before 

proposal, the Agency proposed the 

categorical non-waste listing for wood 

recovered from C&D debris which has 

been processed according to best 

management practices to remove certain 

contaminants, as a categorical nonwaste in 40 CFR 241.4(a). Under the 

proposed rule, combustors of C&D wood 

must obtain a written certification from 

C&D processing facilities that the C&D 

wood has been processed by trained 

operators in accordance with best 

management practices.20 Such practices 

include sorting by trained operators that 

excludes or removes non-wood 

materials (e.g., polyvinyl chloride and 

other plastics, drywall, concrete, 

aggregates, dirt, and asbestos), and wood 

treated with creosote,21

pentachlorophenol, chromated copper 

arsenate, or other copper, chromium, or 

arsenical preservatives. In addition, 

C&D processing facilities that use 

positive sorting (where operators pick 

out desirable wood from co-mingled 

debris) must either exclude all painted 

wood from the final product fuel, use Xray Fluorescence to ensure that painted 

wood included in the final product fuel 

does not contain lead-based paint, or 

require documentation that a building 

has been tested for and does not include 

lead-based paint before accepting 

demolition debris from that building. 

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., smallsized 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 leadpainted 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. 

This rule finalizes the criteria and 

requirements discussed in the proposal 

for reasons explained in the proposal, 

with three changes to the regulatory 

language for lead elimination 

requirements for both positive and 

negative sorting facilities, two changes 

to the definition of C&D wood, and the 

addition of new language for the 

processor’s written certification and 

training requirements. The changes and 

additions were made in response to 

comments received and based on other 

supporting information in the record 

and to provide clarity to the best 

management practice requirements, as 

well as the definition of C&D wood. The 

rationale for the changes and additions 

that have been made in the final rule are 

explained below in this section. The 

general rationale for the final listing is 

provided in the next section V.A.4. of 

this preamble. 

Lead Elimination Requirements. One 

of the changes between the proposed 

rule and final rule concerns the lead 

elimination requirements for positive 

sorting processors. The lead exclusion 

language for positive sorting processors 

proposed at 40 CFR 241.4(a)(5)(i) did 

not specifically provide that facilities 

receiving pre-sorted wood from positive 

sorting entities who may need to remove 

small amounts of unwanted material 

prior to chipping and grinding the wood 

are also considered positive sorting 

facilities. Because these facilities 

remove some materials, they could be 

considered negative sorters. 

The proposed regulatory language 

resulted from a presumed scenario in 

which C&D debris was sent to a single, 

centralized processing facility. 

However, there are other processors 

who receive segregated or pre-sorted 

C&D wood from small generators.22

These small generators (e.g., contractors, 

community collections, citizen drop-off 

locations, and transfer stations) 

segregate and collect clean C&D wood 

using positive sorting and provide the 

recovered C&D wood to ‘‘chip and 

grind’’ processors. The chip and grind 

processors then conduct additional 

sorting, using negative sorting 

techniques, to remove small amounts of 

unwanted materials from the shipment 

prior to processing. These processors 

should not be considered negative 

sorters. 

Recall that negative sorters are 

required to remove fines to ensure lead 

concentrations in the product fuel are 

comparable to or lower than wood or 

biomass. Positive sorters, however, are 

not required to remove fines because 

only the desirable wood is picked from 

the C&D debris. Thus, to require a ‘‘chip 

and grind’’ processing operation that 

has received positive sorted C&D wood 

to remove fines when there are none 

present is unnecessary. Therefore, the 

language for positive sorting has been 

revised to include processors that 

receive pre-sorted wood from positive 

sorting entities. This revision clarifies 

that these processors are not negative 

sorters for purposes of identifying 

which lead requirements are applicable. 

Specifically, the final language at 40 

CFR 241.4(a)(5)(i) includes new text (see 

italic print) to capture these facilities: 

‘‘C&D processing facilities that use 

positive sorting—where operators pick 

out desirable wood from co-mingled 

debris—or that receive and process 

positive sorted C&D wood must either 

. . .’’ 

Another change was made to the lead 

elimination requirements, but for 

negative sorters. The term ‘‘all’’ was 

added to the options for removing 

painted wood under 40 CFR 

241.4(a)(5)(ii)(A). This requirement is 

now consistent with the corresponding 

requirement for positive sorting 

facilities and emphasizes that if 

processors choose this particular lead 

elimination option, then any painted 


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23Management of disaster debris can involve 

significantly greater volumes. For example, prior to 

the 1994 Northridge earthquake in Los Angeles, one 

local company processed 150 tons of C&D debris 

per day. After the earthquake, the city picked up as 

much as 10,000 tons of C&D debris per day. 

24See comments from American Forest & Paper 

Association (EPA–HQ–RCRA–2013–0110–0076) 

and Waste Management (EPA–HQ–RCRA–2013– 

0110–0094. 

wood received must be removed (or 

excluded in the case of positive sorting 

facilities). The purpose of this change is 

to ensure all painted wood, regardless of 

sorting practices, is eliminated from the 

final product if the processor chooses 

this lead elimination strategy. While it 

is expected that processors will make 

every effort to remove or exclude all 

painted wood under this option, de 

minimis amounts could be present and 

still render the resultant material a 

product fuel. The final regulatory 

language adds new text to 40 CFR 

241.4(a)(5)(ii)(A), and now states 

‘‘[r]emove all painted wood.’’ 

The third change that has been made 

applies to both positive and negative 

sorters. As stated in the previous 

paragraph, the term ‘‘all’’ has been 

added to the negative sorting 

requirements for consistency and to 

reaffirm that this particular option is 

intended to be a stringent standard. 

However, to provide additional clarity 

regarding the Agency’s position on de 

minimis amounts, we have added the 

following language as a parenthetical to 

both 40 CFR 241.4(a)(5)(i)(A) and (ii)(A): 

‘‘(to the extent that only de minimis 

quantities inherent to processing 

limitations may remain)’’. 

Definition of C&D wood. Two 

revisions to the definition of C&D wood 

(40 CFR 241.2) have been made. One 

revision is to include disaster debris and 

the second revision is to broaden what 

the Agency considers to be wood 

recovered from construction activities. 

In the proposed rule, the Agency 

noted clean wood in disaster debris had 

been included in the definition for 

‘‘clean cellulosic biomass’’ in a prior 

rulemaking, but had not addressed clean 

wood from disaster debris mixed with 

contaminated materials (e.g., lead-based 

painted wood, CCA treated wood, 

asbestos containing materials, utility 

poles, etc.) and sent for processing 

without any prior sorting. Also noted in 

the proposal, and of particular concern 

to the Agency, was that management of 

disaster debris is more expedited and 

less controlled and thus, prone to 

include contaminants that might 

otherwise be sorted out prior to 

processing.23 Therefore, the Agency 

solicited comment on whether disaster 

debris should be included in the 

definition of C&D wood despite some 

concerns related to processing large 

volumes of material expeditiously. 

The Agency finds that these concerns 

regarding the management of large 

volumes of material in an expeditious 

nature would only be relevant if the best 

management practices as finalized in 

this rule are not used to process wood 

from natural disaster debris. The 

Agency finds that the best management 

practices set forth in this rule are 

sufficient to ensure natural disaster 

debris is handled and processed in the 

same manner as other C&D debris, 

regardless of the source or quantity of 

material to be processed. In other words, 

processors that comply with the best 

management practices for this listing 

would not be altering the way in which 

they process the debris. Should a 

processor choose to hire and train 

additional sorters or extend operational 

hours to process higher volumes, the 

limiting factors in this rule that will 

continue to ensure the quality of the 

processed material are the best 

management practices and the training 

and certification requirements. 

Furthermore, the information provided 

to the Agency discusses that when the 

incoming material exceeds processing 

capacity, the excess material is stored or 

sent to a landfill.24 Given the best 

management practices and information 

indicating the typical handling of excess 

material, the Agency has determined it 

is appropriate to include disaster debris 

in the definition of C&D wood. Thus, 

clean wood from natural disaster debris 

mixed with other materials and 

delivered to a processing facility has 

been added to the definition of C&D 

wood. However, the natural disaster 

debris must be processed in the same 

manner as C&D wood recovered from 

C&D activities to qualify for this 

categorical non-waste listing. The last 

sentence of the definition for C&D wood 

at 40 CFR 241.2 has been revised to add 

text for natural disasters and now reads: 

‘‘C&D wood from demolition activities 

results from dismantling buildings and 

other structures, removing materials 

during renovation, or from natural 

disasters.’’ 

The second revision made to the 

definition of C&D wood is to broaden 

the description of C&D wood generated 

from construction activities. As 

proposed, commenters interpreted it to 

be limited in scope because it did not 

capture the many sources of wood 

generated from construction activities, 

particularly for installation activities. 

The wording in the second sentence of 

the proposed definition for C&D wood at 

40 CFR 241.2 read: ‘‘C&D wood from 

construction activities results from 

cutting wood down to size during 

installation or from purchasing more 

wood than a project ultimately 

requires.’’ A commenter suggested 

listing additional types of installation 

activities associated with construction 

such as incorrectly cut wood, wood 

forms, support braces, stakes, etc. Rather 

than trying to provide an exhaustive list, 

which may not include every possible 

type of installation activity, the Agency 

has decided to revise the language to 

capture any type of installation activity 

that can generate construction wood 

debris. The second sentence of the 

definition now reads ‘‘C&D wood from 

construction activities results from 

wood generated during any installation 

activity or from purchasing more wood 

than a project ultimately requires.’’ The 

change acknowledges there are several 

ways installation activities can generate 

wood without limiting those activities. 

Training and certification. Two 

regulatory additions have been made 

based on concepts that had been 

discussed in the proposed rule 

preamble. One addition is a requirement 

for C&D processors to train their 

operators. The approach taken in the 

proposal was to not include a specific 

training requirement for processors, but 

to rely on a written certification as a 

means for processors to show they had 

used ‘‘trained’’ operators (79 FR 21026). 

However, the Agency finds this 

approach does not provide any 

assurance that the processor is 

conducting the necessary training in 

order to ensure that the resultant 

material is not discarded when 

combusted and is, therefore, not waste. 

Although the written certification 

statement, as proposed (and finalized in 

this rule), must state the processed C&D 

wood has been sorted by ‘‘trained’’ 

operators in accordance with best 

management practices, it did not require 

any evidence that training has taken 

place, nor did it hold the processor 

accountable to their customers. Thus, a 

mechanism is necessary to document 

when the training has been conducted 

so that processors are accountable when 

certifying they have used trained 

operators. This mechanism is 

implemented via new regulatory 

language at 40 CFR 241.4(a)(5)(iii) 

which states ‘‘[p]rocessors must train 

operators to exclude or remove the 

materials as listed in paragraph (a)(5) of 

this section from the final product fuel. 

Records of training must include dates 

of training held and must be maintained 

for a period of three years.’’ The training 

requirement serves as an additional 


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6696 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

25This rulemaking does not change the waste 

status of C&D wood prior to processing, up to which 

point the material would likely be a solid waste 

subject to appropriate federal, state, and local 

requirements unless it meets the definition of 

‘‘clean cellulosic biomass.’’ 

26CAA regulations provide additional safeguards 

to ensure asbestos is removed from buildings prior 

to demolition. Part 61, subpart M (40 CFR 61.145) 

requires that owners or operators of a demolition or 

renovation activity to inspect the affected building 

for the presence of asbestos prior to demolition or 

renovation and notify the Administrator. EPA notes, 

however, that the 40 CFR 61.141 definition of 

‘‘facility’’ explicitly excludes ‘‘residential buildings 

having four or fewer dwelling units’’ thus, small 

residential buildings that are demolished or 

renovated are not covered by the Federal asbestos 

NESHAP regardless of whether the demolition or 

renovation is performed by agents of the owner of 

the property or whether the demolition or 

renovation is performed by agents of the 

municipality. See also the ‘‘Asbestos NESHAP 

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

condition of this categorical non-waste 

listing. For further discussion, see 

section V.A.5 of this preamble. 

The second regulatory addition is to 

specify the written certification 

requirements. As discussed in the 

proposal, to ensure the C&D wood is 

processed according to best 

management practices, it is important 

for the processor to certify they are 

meeting such best management 

practices using trained operators (79 FR 

21013). The Agency has determined a 

written certification from the processor 

is a necessary mechanism for ensuring 

best management practices have been 

used and for indicating that the 

processor has used trained operators. 

The Agency recognizes contracts and 

purchase agreements can indicate a 

commitment to quality, but also 

specifications can vary according to the 

needs of one combustor versus another. 

More importantly, the contracts and 

purchase agreements that the Agency 

has seen do not show that C&D wood 

has been processed according to any 

particular best management practices, 

and consequently, cannot ensure that 

the resulting material is not a waste 

when combusted. Therefore, the written 

certification is finalized at 40 CFR 

241.4(a)(5)(iv) and states ‘‘[a] written 

certification must be obtained by the 

combustor for every new or modified 

contract, purchase agreement, or other 

legally binding document, from each 

final processor of C&D wood and must 

include the statement: the processed 

C&D wood has been sorted by trained 

operators in accordance with best 

management practices.’’ This 

certification will assist the combustor’s 

determination that the C&D wood has 

been sufficiently processed to meet the 

conditions of this categorical non-waste 

listing. Refer to the section V.A.5 of this 

preamble for additional background. 

4. Rationale for Final Rule 

This section discusses the reasoning 

provided in the proposed rule and the 

reasons for the EPA’s final 

determinations for the categorical listing 

of C&D wood. EPA adopts the reasoning 

in the proposed rule and further 

explains it in this preamble. Further 

explanations for the Agency’s decision 

are provided in the Response to 

Comments below. The proposal, this 

section, and the Response to Comments 

all constitute the Agency’s final 

determination supporting this rule. 

a. Discard 

When deciding whether an NHSM 

should be listed as a categorical nonwaste fuel in accordance with 40 CFR 

241.4(b)(5), the Agency first evaluates 

whether or not the NHSM has been 

discarded in the first instance and, if not 

so discarded, whether or not the 

material could be considered discarded 

because it is not legitimately used as a 

product fuel in a combustion unit. 

Based on the rulemaking record, as 

discussed below, the Agency has 

determined C&D wood is not discarded 

when: It is processed in accordance 

with best management practices 

described herein; it is legitimately used 

as a product fuel in a combustion unit; 

and when combustors of C&D wood 

have obtained a written certification 

from C&D processing facilities that the 

C&D wood has been processed by 

trained operators. 

i. Processing of C&D Wood 

In the April 14, 2014 proposed rule 

(79 FR 21012), the Agency reiterated the 

determination in the existing rules that 

the wood present in C&D debris is 

considered to be a solid waste prior to 

processing and that persons must 

transform the debris into a legitimate 

product fuel in order to burn the 

material as a non-waste fuel.25 In 

accordance with 40 CFR 241.2, 

processing must include operations that 

transform discarded NHSM into a nonwaste fuel or non-waste ingredient, 

including operations necessary to: 

Remove or destroy contaminants; 

significantly improve the fuel 

characteristics (e.g., sizing or drying of 

the material, in combination with other 

operations); chemically improve the asfired energy content; or improve the 

ingredient characteristics. Minimal 

operations that result only in modifying 

the size of the material by shredding do 

not constitute processing for the 

purposes of the definition. 

Compared to mixed C&D debris, 

processed C&D wood will have 

significantly fewer contaminants and 

improved fuel characteristics. 

Specifically, the removal or exclusion of 

specified materials, such as creosotetreated wood (PAHs, dibenzofuran), 

pentachlorophenol-treated wood 

(pentachlorophenol, dioxins), CCAtreated 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,26 will result in 

significant contaminant removal. In 

addition, the removal of concrete, 

aggregates, dirt, and other noncombustible 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. 

For incoming C&D debris, processing 

facilities can use a variety of techniques 

to exclude or remove debris unsuitable 

for a product fuel. Typically, processors 

use some combination of source control, 

inspection, sorting, screening, and 

grinding to meet the specifications 

identified by their customers (i.e., 

combustion facilities). The nature of the 

incoming C&D debris, the extent of 

material segregation prior to arrival at 

the processing facility, whether positive 

or negative sorting is employed, and the 

scale of the processing facility (e.g., the 

degree of sorting and number of 

screening devices) help determine 

which combination of practices will be 

most effective. The Agency has 

determined that the best management 

practices, when performed by trained 

operators, addresses the variability 

within the industry such that C&D 

processing facilities will produce a nonwaste product with contaminants that 

are no greater than clean wood and 

biomass, regardless of the characteristics 

that can influence the level of 

contaminants in the C&D wood. Thus, 

the Agency finds such processing meets 

the definition of processing in 40 CFR 

241.2. 

ii. Certification 

Further, to ensure the C&D wood is 

processed according to best 

management practices, the Agency had 

proposed to require processors to certify 

they are meeting such best management 

practices using trained operators. This 

requirement has been finalized in this 

rule for the reasons discussed earlier in 

section V.A.3. of this preamble. 

Combustors must obtain a written 

certification for every new or modified 

contract, purchase agreement, or other 

legally binding document, from each 


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27See December 7, 2012 letter from Susan Bodine 

to Suzanne Rudzinski, page 3. EPA–HQ–RCRA– 

2008–0329–2009. 28Appendix A of April 25, 2013, submittal from 

Susan Bodine on behalf of BPA and CMRA, 

available in the Docket at EPA–HQ–RCRA–2013– 

0110. 

29Major sources are 

30USEPA, Office of Air Quality Planning and 

Standards, Emissions Database for Boilers and 

Process Heaters Containing Stack Test, CEM & Fuel 

Analysis Data Reported Under ICR No. 2286.01 and 

ICR No. 2286.03 (Version 6). EPA Docket/Document 

Number EPA–HQ–OAR–2002–0058–3255. February 

2011. 

31 In response to the proposal, EPA did receive 

data showing a contaminant comparison to coke 

and coal. However, the data was specific to cement 

kilns and cannot be considered to be representative 

for all unit types that combust processed C&D wood 

(i.e., some boilers cannot burn coal depending upon 

feed systems or boiler design type) and therefore, 

was not analyzed for this final rule. A case-by-case 

comparison, however, can be made using 

traditional fuels such as coke and coal if the 

combustion unit is designed to burn these materials 

and if the concentrations of contaminants are found 

to be comparable to or less than those present in 

C&D wood, then the contaminant criterion would 

be met. 

final processor of C&D wood. The 

written certification must include the 

statement: The processed C&D wood has 

been sorted by trained operators in 

accordance with best management 

practices. Combustors have the ultimate 

responsibility to determine the C&D 

wood has been sufficiently processed. 

The Agency has determined that, 

when C&D wood is processed according 

to the best management practices, it will 

have significantly fewer contaminants 

and improved fuel characteristics. The 

best management practices ensure the 

contaminants in the fuel that is burned 

will not be unpredictable, regardless of 

the type or number of processing 

techniques used. Thus, this rule 

finalizes the best management practices, 

with some minor changes from the 

proposed regulatory language as 

discussed previously in section V.A.3. 

of this preamble. 

b. Legitimacy Criteria 

In determining whether to list 

processed C&D wood as a categorical 

non-waste fuel in 40 CFR 241.4(a), the 

Agency evaluated the legitimacy criteria 

in 40 CFR 241.3(d)(1)—that is, whether 

it is managed as a valuable commodity, 

whether it has a meaningful heating 

value and is used as a fuel in a 

combustion unit to recover energy, and 

whether contaminants or groups of 

contaminants are at levels comparable 

to or less than those in the traditional 

fuel the unit is designed to burn. To the 

extent that processed C&D wood does 

not meet one or more of the legitimacy 

criteria, the Agency has considered 

other relevant factors in determining to 

list C&D wood as a categorical nonwaste fuel in 40 CFR 241.4(b)(5)(ii) (see 

discussion on formaldehyde below). 

i. Managed as a Valuable Commodity 

Regarding the first legitimacy 

criterion, the information in the record 

in support of the proposal and this final 

rule demonstrates that both processors 

and combustors manage processed C&D 

wood as a valuable commodity. 

Specifically, after processing, including 

grinding to size, processors ship the 

material to energy recovery facilities in 

covered chip vans or semi-trailers. The 

material is then stored on-site at the 

combustion facilities in wood fuel 

storage yards and generally used within 

90 days of delivery.27 Because storage 

does not exceed reasonable time frames, 

and management is similar to that of 

virgin wood and biomass, the Agency 

has determined that processed C&D 

wood meets this legitimacy criterion. 

ii. Meaningful Heating Value and Used 

as a Fuel To Recover Energy 

With respect to the second legitimacy 

criterion, the record shows that 

processed C&D wood has a meaningful 

heating value and is used as a fuel to 

recover energy. Specifically, 

information in the rulemaking record 

demonstrates that processed C&D wood 

has an average as-fired energy content of 

6,640 Btu/lb,28 which is greater than 

5,000 Btu/lb, which the Agency 

considers to have a meaningful heating 

value (see 76 FR 15541, March 21, 

2011). This also compares favorably to 

information compiled by the Agency in 

2011, in which 95 samples of 

unadulterated timber burned by major 

source boilers29 across the country 

exhibited an average as-fired energy 

content of 5,150 Btu/lb.30 According to 

C&D trade organizations, energy 

recovery facilities purchase processed 

C&D wood and burn the material as fuel 

to generate electricity. Thus, the Agency 

has determined that processed C&D 

wood meets this legitimacy criterion. 

iii. Contaminants Comparable to or 

Lower Than Traditional Fuels 

For the third legitimacy criterion, 

C&D trade organizations provided the 

Agency with contaminant analyses of 

more than 220 samples of processed 

C&D wood from nine combustion 

facilities in California, Maine, 

Massachusetts, Minnesota, New York, 

the state of Washington, and Wisconsin 

in support of the proposed categorical 

listing for processed C&D wood. The 

Agency compared the contaminant 

levels found in the processed C&D wood 

to the contaminant levels found in clean 

wood and biomass materials since any 

unit burning processed C&D wood can 

clearly burn clean wood and biomass 

materials as well.31

As first presented in the April 14, 

2014 proposed rule (79 FR 21013–14), 

summary results for the contaminant 

comparisons are provided in Table 1 of 

this preamble, with the contaminants 

most likely to be present in unprocessed 

C&D debris listed first. The Agency 

finds that they support the final 

determination that processed C&D wood 

meets the contaminant legitimacy 

criterion, with the appropriate 

qualifications as noted below. 

Specifically, arsenic and chromium 

are present due to CCA-treated wood; 

lead due to lead-based paint chips; 

mercury due to light bulbs, ballasts, 

thermostats and other mercurycontaining 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 32 33 34

Contaminant 

Clean Wood/

Biomass 

Processed C&D Wood 

Range # samples Average 90% UPL Maximum 

Contaminants Most Likely To Be Present in C&D Debris 

Arsenic ......................................................................... ND—298 ........ n = 221 .......... 35 .9 91 .8 261 


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32Sources: Clean Wood/Biomass ranges taken 

from a combination of EPA data and literature 

sources, as presented in EPA document 

Contaminant Concentrations in Traditional Fuels: 

Tables for Comparison, November 29, 2011, 

available at www.epa.gov/epawaste/nonhaz/define/ 

index.htm. Processed C&D Wood data from April 

26, 2013, submittal by Susan Bodine on behalf of 

BPA and CMRA, available in the Docket at EPA– 

HQ–RCRA–2013–0110. 

33All units expressed in parts per million (ppm) 

on a dry weight basis. 

34Upper Prediction Limit (UPL) calculations were 

made by commenters using EPA’s ProUCL software, 

using either a lognormal distribution or 

nonparametric statistics, as appropriate. 

35 76 FR 15523–24, March 21, 2011. 

36 In addition to determining that the one sample 

of fluorine is within a small acceptable range, one 

can consider that the Upper Prediction Limit (UPL) 

for fluorine in processed C&D wood, when 

calculated at a 90 percent confidence level based on 

all 45 samples (139 ppm), is well within the range 

of clean wood and biomass materials. The UPL 

taken at a 90 percent confidence level yields a 

number (i.e., 139 ppm), and in the context of 

analyzing contaminant samples, persons can be 

confident that the next sample taken will be at or 

below that number 90 percent of the time. 

TABLE 1—COMPARISON OF CONTAMINANTS IN CLEAN WOOD/BIOMASS AND PROCESSED C&D WOOD 32 33 34—Continued 

Contaminant 

Clean Wood/

Biomass 

Processed C&D Wood 

Range # samples Average 90% UPL Maximum 

Chromium .................................................................... ND—340 ........ n = 212 .......... 45 .0 116 283 

Lead ............................................................................. ND—340 ........ n = 224 .......... 53 .9 136 482 

Mercury ........................................................................ ND—1.1 ......... n = 180 .......... 0 .1 0 .16 0 .7 

Chlorine ....................................................................... ND—5400 ...... n = 173 .......... 809 1,567 3,521 

Fluorine ........................................................................ ND—300 ........ n = 86 ............ 45 .9 139 313 

Sulfur ........................................................................... ND—8700 ...... n = 183 .......... 1,300 2,200 7,300 

Formaldehyde .............................................................. 1.6—27 .......... n = 45 ............ 47 .6 104 .2 176 .8 

Pentachlorophenol ....................................................... ND .................. n = 21 ............ 19 .7 N/A 126 

Contaminants Less Likely To Be Present in C&D Debris 

Antimony ...................................................................... ND—26 .......... n = 50 ............ 2 .6 7 .1 16 .6 

Beryllium ...................................................................... ND—10 .......... n = 50 ............ 0 .1 0 .23 0 .3 

Cadmium ..................................................................... ND—17 .......... n = 107 .......... 0 .3 0 .53 1 .3 

Cobalt .......................................................................... ND—213 ........ n = 50 ............ 1 .1 2 .1 3 .5 

Manganese .................................................................. ND—15800 .... n = 50 ............ 78 .8 115 180 

Nickel ........................................................................... ND—540 ........ n = 50 ............ 4 .0 8 .6 27 .4 

Selenium ...................................................................... ND—9 ............ n = 43 ............ 0 .4 1 .0 1 .3 

Nitrogen ....................................................................... 200—39500 ... n = 75 ............ 3,900 8,000 12,600

With the exception of four 

contaminants—fluorine, lead, 

formaldehyde and pentachlorophenol, 

every sample of processed C&D wood’s 

contaminant levels was well within the 

range of clean wood and biomass 

materials. With respect to these four 

contaminants: 

• Fluorine: This contaminant was 

first discussed in the proposal at 79 FR 

21014. 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).35 36 Thus, 

the final rule does not include controls 

specific to fluorine. 

• Lead: As first discussed in the 

proposal at 79 FR 21014–15, April 14, 

2014, despite efforts by C&D processing 

facilities to remove lead, the data 

demonstrate that some processing 

facilities do a better job than others, 

with isolated samples from 

Massachusetts reaching 407 and 437 

ppm lead, and one of seven samples 

from Wisconsin reaching 482 ppm lead. 

While most of the 224 samples detected 

lead within the range found in clean 

wood and biomass materials (ND–340 

ppm), it is important to recognize that 

each high sample could represent a 

large amount of processed C&D wood 

produced by an outlier facility. 

Accordingly, an overly broad categorical 

non-waste listing could include 

processed C&D wood from facilities 

where the final product consistently 

contains high lead levels, amounts that 

would not be considered a normal part 

of clean wood or biomass. In this 

instance, one facility in Massachusetts 

provided a composite sample for each of 

seven days, and two out the seven 

samples exceeded the range of lead 

values found in clean wood and 

biomass. That could mean more than 28 

percent of the processed C&D wood 

produced by that facility exceeds lead 

levels found in clean wood and 

biomass. 

C&D processing facilities have options 

for eliminating lead in the processed 

C&D wood they produce, and 

information submitted with the 

contaminant dataset shows that the two 

facilities (one in Massachusetts, the 

other in Wisconsin) exhibiting the 

highest lead levels shared similar lead 

elimination strategies. Although both 

facilities accept painted wood, neither 

uses X-ray Fluorescence (XRF) analyzers 

to detect and remove lead-based painted 

wood. Nor do they require 

documentation of a building inspection 

that includes testing for lead-based 

paint. By comparison, the Washington 

facility included in the dataset requires 

documentation of XRF testing before 

accepting demolition debris from a 

particular building, and as evidenced by 

a maximum lead concentration of 26 

ppm, lead concentrations in the 

processed C&D wood it burns tested 

lower than for any other facility in the 

dataset. The Minnesota facility included 

in the dataset does not accept painted 

wood, and as evidenced by a maximum 

lead concentration of 110 ppm, lead 

concentrations in the processed C&D 

wood it burns are also well within the 

range of clean wood and biomass 

materials. 

Both the Massachusetts facility and 

the Wisconsin facility relied solely on 

removing ‘‘fines’’ to control lead levels. 

Fines are small-sized particles that may 

contain relatively high concentrations of 

contaminants, and facilities can remove 

them before and after shredding via 

screens or flotation. The Agency does 

not dispute that the removal of fine 

particles can reduce the levels of lead 

and other contaminants, particularly for 

C&D processing facilities using negative 

sorting. Without additional measures, 

however, this strategy does not remove 

sufficient lead to transform the C&D 


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37Based 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. 

38See comments from AF&PA (0076.1), DTE 

Energy Services (0083.1), and NTH Consultants 

LTD for CMS Enterprises (0100) in docket ID: EPA– 

HQ–RCRA–2013–0110. 

39On May 29, 2013, EPA proposed two rules to 

protect the public from the risks associated with 

exposure to formaldehyde. 78 FR 34796, 78 FR 

34820. The proposals would implement the 

Formaldehyde Standards for Composite Wood 

Products Act (Title VI of the Toxic Substances 

Control Act): One will implement the Act’s 

emission standards and the other will ensure 

products meet the TSCA formaldehyde emission 

standards. See http://www.epa.gov/oppt/chemtest/

formaldehyde/. 

debris into a product fuel in all cases 

that would warrant processed C&D 

wood being categorically listed as a nonwaste fuel. Thus, the Agency had 

proposed conditions related to lead 

elimination as part of the categorical 

non-waste listing for processed C&D 

wood. The proposed conditions were: 

—Facilities using positive sorting must 

either: (1) Exclude painted wood via 

the sorting process by selecting only 

unpainted wood from incoming C&D 

debris for further processing, (2) use 

XRF to ensure that painted wood 

included in the final product fuel 

does not contain lead-based paint, or 

(3) require documentation that a 

building has been tested for and does 

not include lead-based paint before 

accepting demolition debris from that 

building. 

—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. 

No additional data were received in 

response to the proposed measures to 

eliminate lead that warrant removal of 

the conditions or their options for the 

final listing. However, as discussed 

earlier in section V.A.3. of this 

preamble, three changes have been 

made to the proposed regulatory 

language: (1) Positive sorting has been 

revised to include processors that 

receive pre-sorted wood from positive 

sorting entities to clarify that these 

processors are not negative sorters for 

purposes of identifying which lead 

elimination requirements are applicable; 

(2) the word ‘‘all’’ has been added to 

clarify that both positive and negative 

sorters must exclude or remove all 

painted wood from incoming debris; 

and (3) the parenthetical language: ‘‘to 

the extent that only de minimis 

quantities inherent to processing 

limitations may remain’’ has been added 

to both 40 CFR 241.4(a)(5)(i)(A) and 

(ii)(A) to reflect the Agency’s position 

on de minimis amounts. 

Based on all information regarding the 

presence of lead in processed C&D 

wood, the Agency has determined that 

the proposed conditions are necessary 

to ensure that lead levels in processed 

C&D wood are comparable to or lower 

than lead levels present in clean wood 

and biomass. Consistent with the 

proposal, the Agency has finalized 

conditions designed to eliminate lead, 

with the minor changes as noted above. 

See the final regulatory language at 40 

CFR 241.4(a)(5)(i) and (ii). 

• Pentachlorophenol: The following 

was first discussed in the proposal at 79 

FR 21015. The presence of 

pentachlorophenol in some processed 

C&D wood results from processors 

either choosing to include industrial 

wood products treated with 

pentachlorophenol in their product fuel 

(in the case of positive sorting) or from 

processors not removing those same 

industrial wood products from C&D 

debris (in the case of negative sorting) 

prior to the final grinding step. The EPA 

restricted the use and sale of 

pentachlorophenol in 1987, with no 

registered residential uses allowed for 

the past 26 years. As stated in the 

proposal, the Agency believed that the 

pentachlorophenol concentrations in 

processed C&D wood were a direct 

result of easily identified wood 

products, predominantly utility poles, 

that processing facilities can choose to 

exclude or remove prior to grinding 

recovered C&D wood.37 Therefore, 

under the proposed regulatory 

conditions, processing facilities must 

exclude or remove these known sources 

of pentachlorophenol from their final 

product fuel to qualify for the 

categorical non-waste listing. 

Information submitted in response to 

the proposed rule affirm that the 

pentachlorophenol concentrations in 

processed C&D wood are a direct result 

of easily identified wood products, 

predominantly utility poles, that 

processing facilities can choose to 

exclude or remove prior to grinding 

recovered C&D wood.38 Because sources 

of pentachlorophenol can be readily 

identified by color and by shape of the 

treated wood, no additional conditions 

other than those specified by the best 

management practices are necessary. 

Thus, to ensure that pentachlorophenol 

levels in processed C&D wood are 

comparable to or lower than clean wood 

and biomass, the Agency is requiring 

that pentachlorophenol treated wood be 

excluded or removed from incoming 

C&D debris. See 40 CFR 241.4(a)(5). The 

Agency sees no reason to change the 

determination expressed in the 

proposed rule and adopts it for the final 

rule. 

• Formaldehyde: The proposal first 

discussed this contaminant at 79 FR 

21015, April 14, 2014. For C&D debris 

processed pursuant to best management 

practices, inclusive of the regulatory 

conditions presented in the proposal, 

formaldehyde (present in concentrations 

as high as 176.8 ppm versus 27 ppm in 

clean wood/biomass) is the only 

remaining contaminant that raised 

questions as to whether it meets the 

contaminant legitimacy criterion. Again, 

the Agency emphasizes that, although 

the situation appears similar to the 

categorical non-waste listing for 

resinated wood in 40 CFR 241.4(a)(2), 

details surrounding use of the two 

NHSMs as fuel are not the same. In the 

case of resinated wood, as defined in 40 

CFR 241.2, the Agency determined that 

energy recovered from the combustion 

of manufacturing process residues and 

off-specification resinated wood is 

integrally tied to the industrial 

production process. The equivalent for 

C&D wood would be sawmills reliant on 

recovering energy from sawdust and offspecification lumber to power the 

construction lumber production 

process. Sawmills may do this, but that 

is not the scenario commenters have 

described in response to the December 

23, 2011 (76 FR 80451) proposed rule 

and for which the Agency has 

evaluated. 

While EPA disagreed with petitioners’ 

claims that resinated wood components 

in C&D debris are categorical nonwastes and the corollary that 

formaldehyde concentrations are 

therefore irrelevant, the Agency agreed 

in the proposal that additional factors 

were worth considering in determining 

whether 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.39


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40Fattah, Hassan Abdel, et al. ‘‘Online Sorting of 

Recovered Wood Waste Using Automated X-Ray 

Technology’’ Final Report; November 30, 2009. See 

p. 2. Available in EPA–HQ–RCRA–2013–0110. 

41Blassino, Monika, et al. ‘‘Methods to control 

Fuel Quality at Wood Burning Facilities.’’ Available 

in EPA–HQ–RCRA–2013–0110–0033. 

42PAN stands for the chemical name of 1-(2- 

pyridylazo)-2-naphthol, an orange-red solid with a 

molecular formula C15H11N3O. It is used to 

determine the presence of almost all metals 

excluding alkali metals. The stain is not specific to 

arsenic within CCA. It reacts with the copper, so 

that wood treated with any copper-based 

preservative will also test positive using this stain. 

Second and more importantly, for many 

combustors, processed C&D wood 

scraps that include resinated wood 

components actually have added value 

and are either selected for (in the case 

of positive sorting) or specifically not 

removed (in the case of negative sorting) 

because the wood has been kiln-dried 

prior to use in construction. Kiln-dried 

wood has a greater heating value than 

virgin wood, almost double in some 

cases. Kiln-dried wood also has more 

consistent moisture content; an equally 

important benefit to combustors because 

a consistent fuel improves combustion 

efficiency and leads to reduced 

emissions of particulate matter, carbon 

monoxide, and other organic hazardous 

air pollutants. 

The Agency has determined that the 

additional factors discussed in the 

proposal are appropriate for 

determining whether the resinated 

wood in certain limited circumstances 

is actually a product fuel. As a result, in 

the final rule the Agency allows 

resinated wood to remain in C&D wood 

prior to processing for this categorical 

non-waste listing. This determination is 

based partially on the fact that future 

rules will limit levels of formaldehyde 

in wood products and will, in effect, 

also reduce the levels of formaldehyde 

in processed C&D wood. Principally, the 

Agency’s determination is based on 

information submitted to the Agency 

showing that some processors choose to 

include resinated wood in processed 

C&D wood based on combustor 

specifications for a higher Btu value 

fuel, which demonstrates that resinated 

wood is a valuable product fuel and is 

not burned for destruction. The Agency 

maintains that the benefits of burning 

kiln-dried wood not only provides 

higher heating value, but also more 

consistent moisture content which lends 

to more efficient combustion and, thus, 

reduced emissions of certain 

contaminants. The final rule, therefore, 

allows processors to choose whether 

they will exclude or remove any 

resinated wood and still be permitted to 

be within the categorical non-waste 

listing for C&D debris. 

This does not mean, however, that all 

resinated wood is considered a nonwaste fuel. The Agency has found that 

resinated wood is a non-waste fuel in 

the furniture industry because of 

particular circumstances in that 

industry, and in this case for C&D wood 

due to the extraction of fuel value as a 

result of the kiln-dried properties of that 

wood. In other circumstances, a case-bycase determination would need to be 

made. 

5. Summary of Comments Requested 

The proposed rule identified several 

issues pertaining to the listing of C&D 

wood as categorical non-wastes and 

requested comment on those issues as 

follows. 

Processing Techniques for lead and 

pentachlorophenol. The Agency 

requested comment on the efficacy of 

specific processing techniques related to 

lead, as well as the feasibility of 

reducing pentachlorophenol 

concentrations in processed C&D wood 

by excluding or removing utility poles 

and other industrial wood products 

known to be treated with the chemical. 

See 79 FR 21015, April 14, 2014. Please 

refer to section V.A.4.b.iii of this 

preamble for the Agency’s final 

determination and supporting rationale. 

Formaldehyde levels. The Agency 

sought comment on the decision to 

balance elevated formaldehyde levels 

with the greater heating value and more 

consistent moisture content that 

resinated wood components lend to 

processed C&D wood, rather than 

specifically requiring that resinated 

wood be excluded or removed from C&D 

debris as part of the best management 

practices. See 79 FR 21015–16. Please 

refer to section V.A.4.b.iii of this 

preamble for the Agency’s final 

determination and supporting rationale. 

CCA-treated wood. As proposed at 79 

FR 21016, CCA-treated wood was to be 

excluded or removed from C&D debris. 

Although the data submitted to the 

Agency indicated that arsenic and 

chromium concentrations in processed 

C&D wood are comparable to levels 

found in traditional fuels, there was 

concern that because a majority of CCAtreated wood is still in use, an increase 

in the amount of CCA-treated wood in 

C&D debris can be expected in the 

future. Currently, CCA-treated wood can 

represent up to 30 percent of the C&D 

wood waste stream.40 The concern was 

further compounded by the reality that 

visual identification of CCA-treated 

wood is at times very difficult, 

especially when the wood is weathered, 

dirty, painted, or if the wood is 

characterized by low retention levels.41

One pilot study conducted in the state 

of Florida showed that visual sorting of 

CCA-treated wood at three different 

facilities produced differing results of 

success. The two facilities with the 

greatest success, which correctly 

identified 89 percent and 90 percent of 

the pre-sorted wood as untreated wood, 

had provided extensive training to its 

employees. The third facility correctly 

identified 60 percent as untreated wood, 

as evidenced by little or no training. 

Given the variability in visually 

identifying untreated versus treated 

wood, augmenting technologies have 

been developed to detect the presence of 

arsenic, copper, and chromium, as well 

as other contaminants. Studies have 

concluded that the use of stains (e.g., 

PAN Indicator Stain 42) and X-ray 

Florescence (XRF) technology are the 

most promising technologies, with 

chemical stains being suitable for 

sorting small quantities of wood and 

XRF technology being better suited for 

sorting large quantities of wood. 

Again, the Agency’s concern was 

based on anticipated increases of CCAtreated wood in C&D debris, as well as 

the accuracy of visual sorting among 

C&D processors. Therefore, the Agency 

had requested comment on the viability 

of either requiring, as best management 

practices, C&D processors to implement 

formal training programs that emphasize 

sorting treated wood from untreated 

wood or the use of XRF technology or 

PAN indicator stains to provide greater 

certainty that CCA-treated wood is 

removed from the processed C&D wood. 

After considering the information in 

the record, including comments 

received, the Agency has determined 

that CCA-treated wood must be 

excluded or removed from C&D debris, 

by trained operators, to ensure that 

levels of arsenic and chromium in 

processed C&D wood remain 

comparable to or lower than levels in 

clean wood and biomass. Unlike 

formaldehyde levels which are expected 

to decrease over time, levels of arsenic 

and chromium are expected to increase 

with continued use of CCA-treated 

lumber or other copper, chromium, or 

arsenical preservatives. 

The Agency’s decision to require that 

operators be trained to exclude or 

remove treated wood (with the 

exception of resinated wood) as part of 

the best management practices, is based 

in part on the results from the Florida 

pilot study which showed a high rate of 

success when extensive training was 

provided for visual identification of 

treated wood; and in part because both 

XRF technology and PAN indicator 


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43Blassino, Monika, et al. ‘‘Methods to Control 

Fuel Quality at Wood Burning Facilities.’’ EPA– 

HQ–RCRA–2013–0110–0033. 44 76 FR 15478 (March 21, 2011); codified at 40 

CFR 241.2. 45Management of disaster debris can involve 

significantly greater volumes. For example, prior to 

the 1994 Northridge earthquake in Los Angeles, one 

local company processed 150 tons of C&D debris 

per day. After the earthquake, the city picked up as 

much as 10,000 tons of C&D debris per day. 

stains are limited in application when 

processing large amounts of C&D debris. 

The evidence demonstrates that 

processors who train their employees to 

visually recognize treated wood are 

successful in excluding or removing 

CCA-treated wood.43 Therefore, by 

requiring processors to train their 

operators as part of this categorical nonwaste listing, it will further ensure that 

levels of arsenic and chromium in 

processed C&D wood remain 

comparable to or lower than levels in 

clean wood and biomass as more CCAtreated wood is introduced into C&D 

debris. 

Disaster Debris. The definition for 

C&D wood as proposed did not include 

disaster debris. The Agency had defined 

‘‘clean cellulosic biomass’’ to include 

clean wood found in disaster debris.44

However, disaster debris wood that is 

mixed with contaminated materials 

(e.g., lead-based painted wood, asbestos 

containing materials, etc.) had not been 

specifically addressed. The Agency 

noted in the proposal that management 

of disaster debris is more expedited and 

less controlled and thus, prone to 

include contaminants that might 

otherwise be sorted out prior to 

processing.45 In light of these concerns, 

the Agency requested comment on the 

appropriateness of including wood that 

is recovered from disaster debris, but 

that is mixed with other contaminated 

materials prior to arrival at the 

processing facility, as processed C&D 

wood. Thus, the Agency requested that 

commenters provide any data or 

information to demonstrate that mixed 

disaster debris wood, once processed, 

produces wood that contains 

contaminants comparable to or lower 

than biomass and virgin wood. Further, 

the EPA also requested comment on 

whether other conditions imposed by 

contingency plans, for example, can 

facilitate the removal of contaminated 

material found in disaster debris. 

The Agency finds that the concerns as 

expressed in the proposal would only be 

relevant if the best management 

practices, as finalized in this rule, are 

not followed. As discussed previously 

in the section on processing (See section 

V.A.4.a.i. of this preamble), the best 

management practices ensure that the 

contaminants in the fuel that is burned 

will not be unpredictable regardless of 

the source of the wood, or even the 

quantity of wood to be processed. In 

other words, processors that comply 

with the best management practices for 

this listing would not be altering the 

way in which they process the debris. 

Should a processor choose to hire and 

train additional sorters or extend 

operational hours to process higher 

volumes, the limiting factors that will 

continue to ensure the quality of the 

processed material are the best 

management practices and training and 

certification requirements. (For 

additional discussion on handling 

practices, refer to section V.A.3. of this 

preamble.) Thus, clean wood from 

natural disaster debris that is mixed 

with other materials and is delivered to 

a processing facility has been added to 

the definition of C&D wood. However, 

the disaster debris must be processed in 

the same manner as C&D wood 

recovered from demolition activities to 

qualify for the categorical non-waste 

listing. 

Trained operators. As presented in 

the proposal at 79 FR 21016, best 

management practices require sorting by 

‘‘trained operators’’ to remove or 

exclude all non-wood debris, certain 

treated wood, and lead-based painted 

wood from the final product fuel. The 

Agency noted that operators who are 

trained to sort C&D debris, especially to 

recognize treated wood, play an 

important role in reducing contaminant 

levels in the final product fuel. 

Therefore, comment was requested on 

whether the Agency should require C&D 

processors to have formal training 

programs in place as part of the best 

management practices, as well as 

whether processors should be required 

to keep records as a condition of the 

categorical listing to demonstrate that 

such operators have been formally 

trained. 

In the proposal, the Agency did not 

prescribe what a training program could 

include due to several factors that 

contribute to variability within the C&D 

processing industry. Certain factors 

such as where the C&D debris originates 

from and the amount of sorting prior to 

arrival at the processing facility can 

influence the extent and type of 

contaminated material arriving at the 

processing facility. Also, whether 

positive or negative sorting is used and 

the scale of the processing facility (i.e., 

the degree of sorting and screening 

devices) are variable within the 

industry. Thus, the Agency sought 

comment on whether to require 

processors to have formal training 

programs, and if so, requirements that 

would be flexible enough to address the 

variability of the incoming C&D debris, 

but also provide additional assurance 

that C&D processing facilities would 

produce a non-waste product fuel with 

contaminants that are comparable to or 

lower than clean wood/biomass. 

For this final listing, the Agency is not 

prescribing the elements of a training 

program and maintains that flexibility is 

necessary to address the variability 

within the industry. However, the 

Agency is finalizing a requirement for 

processors to train their operators in 

accordance with the best management 

practices. The Agency did not include a 

specific training requirement for 

processors because it had intended to 

rely on a written certification as a means 

for processors to show that they had 

used ‘‘trained’’ operators. After further 

consideration, the Agency finds that this 

approach does not provide any 

assurance that the processor is 

conducting the necessary training in 

order to ensure that the resultant 

material is not discarded when 

combusted and is, therefore, not a 

waste. Although the written 

certification, as proposed and finalized 

in this rule, is intended to confirm that 

the processed C&D wood has been 

sorted by ‘‘trained’’ operators in 

accordance with best management 

practices, it does not require any 

evidence that training has taken place, 

nor does it hold the processor 

accountable. Thus, a mechanism is 

necessary to document when the 

training has been conducted so that 

processors are accountable to their 

customers when certifying that they 

have used trained operators. This 

mechanism is implemented via new 

regulatory language at 40 CFR 

241.4(a)(5)(iii) which states that 

‘‘[p]rocessors must train operators to 

exclude or remove the materials as 

listed in paragraph (a)(5) of this section 

from the final product fuel. Records of 

training must include dates of training 

held and must be maintained for a 

period of three years.’’ The training 

requirement serves as an additional 

condition of this categorical non-waste 

listing. This condition is applicable only 

to the final processor, because it is 

ensuring that processing has 

transformed the processed C&D wood 

into a non-waste product fuel according 

to best management practices before 

providing it to the combustor, and the 

final processor is responsible for 

meeting individual combustor 

specifications. However, it is important 

to note that the C&D materials at the 

intermediate processor facilities would 

still be solid wastes. 

Written Certification. As proposed at 

79 FR 21016, the combustor would need 


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6702 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

46 40 CFR 241.4 lists the categorical or ‘‘Nonwaste determinations for specific non-hazardous 

secondary materials when used as a fuel.’’ 

47These sections state that ‘‘for operating units 

that combust non-hazardous secondary materials as 

fuel per 40 CFR 241.4, you must keep records 

documenting that the material is listed as a nonwaste under 40 CFR 241.4(a).’’ 

to obtain a written certification from the 

C&D processor that the C&D wood has 

been processed by trained operators in 

accordance with best management 

practices. The Agency proposed that the 

written certification could take the form 

of a contract, purchase agreement, or 

other document that requires the 

supplier to process the C&D wood 

according to combustor specifications 

and best management practices. It was 

the Agency’s understanding that 

purchase agreements and contracts are 

common between a processor/supplier 

and combustor. Thus, comment was 

requested on whether such agreements 

and contracts are sufficient 

documentation (i.e., can serve as the 

written certification) or if a written 

certification statement developed 

specifically to address the requirements 

in the proposal would be clearer and 

more effective. The Agency noted that 

the existing record keeping 

requirements for combustors that 

combust NHSMs as fuels listed under 40 

CFR 241.4,46 would be appropriate for 

maintaining the certification. The 

purchase agreement, contract, or other 

document, would be considered a 

‘‘record’’ which satisfies the record 

keeping requirements of 40 CFR 

60.2740(u) (Emissions Guidelines) and 

40 CFR 60.2175(w) (New Source 

Performance Standards) for CISWI units 

and 40 CFR 63.11225(c)(2)(ii) for area 

source boilers and 40 CFR 63.7555(d)(2) 

for major source boilers.47

The Agency has determined that a 

written certification statement 

developed specifically to address 

requirements of the categorical nonwaste listing will provide independent 

assurance that processors are providing 

a legitimate product fuel to their 

customers. Although contracts and 

purchase agreements indicate a 

commitment to quality, specifications 

can vary according to the needs of one 

combustor versus another with respect 

to the extent and type of contaminant 

removal required. The contracts and 

purchase agreements that the EPA has 

seen do not show that C&D wood has 

been processed according to any 

particular best management practices, 

and consequently, cannot ensure that 

the resulting material is not a waste 

when combusted. The written 

certification statement is required only 

for the final processor, since it is 

responsible for ensuring that the final 

product fuel has been processed 

according to best management practices. 

Note that the materials at intermediate 

processor facilities would still be solid 

wastes. Therefore, this final rule 

requires combustors to obtain a written 

certification from the final processor for 

every new or modified contract, 

purchase agreement, or other legally 

binding document. This written 

certification statement must state that 

the processed C&D wood has been 

sorted by trained operators in 

accordance with best management 

practices. See the new requirements at 

40 CFR 241.4(a)(5)(iv). 

6. Response to Comments 

a. Definition of Construction and 

Demolition (C&D) Wood 

Comment: Commenters supported the 

inclusion of disaster debris in the 

definition of C&D wood, generally 

arguing that the definition already 

includes disaster debris because it does 

not distinguish between the demolition 

and dismantling of buildings by nature 

or man. Man-made demolition debris 

will not necessarily be distinguishable 

from debris created by nature. Managing 

wood from natural disasters requires the 

same processes used for [man-made] 

C&D debris. Although a natural disaster 

may increase the quantity of C&D wood 

available for processing, processors will 

follow the same practices in terms of 

material acceptance and processing. 

Where incoming material exceeds 

processing capacity and cannot be 

stored, the material will typically be 

landfilled. In addition, purchasers of 

processed C&D wood will continue to 

require material that meets or exceeds 

their specifications, so processors must 

continue to exert tight controls to avoid 

risking rejected materials. The 

[proposed] regulatory requirements for 

training and processing would still 

prevail. Accordingly, the EPA should 

amend the last sentence of the 

definition that addresses C&D wood 

from demolition activities to include 

‘‘natural disasters.’’ 

Response: We agree that the definition 

of C&D wood should include the term 

‘‘natural disaster’’ to represent activities 

resulting from natural disaster events. 

Accordingly, the Agency has revised the 

definition from the proposal so that the 

last sentence now reads ‘‘C&D wood 

from demolition activities results from 

dismantling buildings and other 

structures, removing materials during 

renovation, or from natural disasters.’’ 

Clean wood in disaster debris had 

been included in the definition for 

‘‘clean cellulosic biomass’’ in a prior 

rulemaking. When clean wood is 

picked/sorted (i.e., via positive sorting) 

from the disaster debris site and sent to 

a processor for chipping and grinding, it 

is considered clean cellulosic biomass, 

which is a traditional fuel. However, the 

Agency had not addressed clean wood 

from disaster debris that is mixed with 

contaminated materials which could 

include other types of treated wood, 

drywall, plastics, concrete and so forth, 

that is delivered to a processing facility. 

When clean wood from disaster debris 

is not picked/sorted prior to arrival at a 

processing facility, it is no different than 

C&D debris and thus, must be processed 

in the same manner to qualify for this 

categorical non-waste listing. 

The proposal expressed concern 

regarding the management of disaster 

debris prior to processing, such that due 

to the circumstances, large quantities of 

debris would need to be managed 

expeditiously, and consequently may 

contain more contaminated materials 

that would have been typically sorted 

out prior to arrival at a processing 

facility. However, after considering the 

comments and evidence in the record, 

the Agency finds that these concerns 

regarding the management of large 

volumes of material in an expeditious 

nature, would only be relevant if the 

best management practices as finalized 

in this rule, are not used to process 

wood from natural disaster debris. The 

best management practices set forth in 

this rule are sufficient to ensure that 

natural disaster debris is handled and 

processed in the same manner as other 

C&D debris, regardless of the source or 

quantity of material to be processed. In 

other words, processors that comply 

with the best management practices for 

this listing would not be altering the 

way in which they process the debris. 

Should a processor choose to hire and 

train additional sorters or extend 

operational hours to process higher 

volumes, the limiting factors in this rule 

that will continue to ensure the quality 

of the processed material are the best 

management practices and training and 

certification requirements. Further, the 

information provided to the Agency 

shows that when the incoming material 

exceeds processing capacity, the excess 

material is stored or sent to a landfill. 

Given the best management practices 

and information indicating the typical 

handling of excess material, the Agency 

has determined that it is appropriate to 

include disaster debris in the definition 

of C&D wood. Thus, clean wood from 

natural disaster debris that is mixed 

with other materials and is delivered to 

a processing facility has been added to 

the definition of C&D wood. However, 


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48 74 FR 54 (January 2, 2009), 75 FR 31883 (June 

4, 2010), and 76 FR 15526 (March 21, 2011). 

49 76 FR 15525–26. 50See 76 FR 15491–92. 

the natural disaster debris must be 

processed in the same manner as C&D 

wood recovered from C&D activities to 

qualify for this categorical non-waste 

listing. 

Comment: The definition of C&D 

wood should be expanded with respect 

to the sources of wood generated from 

construction activities. As proposed, the 

second sentence of the definition states 

‘‘C&D wood from construction activities 

results from cutting wood down to size 

during installation or from purchasing 

more wood than a project ultimately 

requires.’’ This sentence may be too 

prescriptive, since wood can also be 

generated from incorrectly cut wood, 

wood used for concrete forms, wood 

used for support braces, and other uses 

which render the wood unsuitable for 

installation. 

Response: The definition of C&D 

wood as applied to construction 

activities was not intended to be limited 

to a specific installation activity (i.e., 

cutting wood down to size). The 

Agency, however, understands that it 

may be read to be prescriptive. To 

address any ambiguity, the Agency has 

revised the second sentence for 

construction and demolition (C&D) 

wood at 40 CFR 241.2 with the 

following, ‘‘C&D wood from 

construction activities results from 

wood generated during any installation 

activities or from purchasing more wood 

than a project ultimately requires.’’ 

Thus the definition is not limited to 

‘‘cutting wood down to size’’ but allows 

any waste wood generated at any time 

during installation to be considered 

construction debris. Although the 

revision does not specifically list the 

specific installation activities as 

suggested, it now acknowledges that 

there are a number of different ways that 

construction activities can generate 

wood without limiting applicable 

activities by specifically listing them in 

the definition. 

b. Contaminant Comparison Criterion 

Comment: Changes should be made to 

the method for comparing contaminant 

levels in processed C&D wood. Rather 

than comparing the constituents of 

concern to virgin wood or biomass, the 

Agency should consider establishing a 

standard based on analytical surveys of 

well-sorted C&D debris and use the test 

results as the standard. Also, specific 

contaminant levels need to be 

developed by the Agency to clearly 

define what a legitimate fuel product is 

that can be burned as a non-waste. 

Without a clearly defined set of 

contaminant levels, the rule will be very 

difficult to enforce. 

Response: We disagree that any 

modifications to the contaminant 

comparison legitimacy criterion should 

be made, particularly with respect to 

establishing what the Agency considers 

a ‘‘bright line’’ or even a numerical 

approach to setting levels for C&D 

wood. The issue is not that analytical 

surveys of well-sorted C&D debris 

establish a standard. Rather, the levels 

in the processed C&D wood must 

compare favorably to the traditional 

fuels that it replaces. The rationale for 

comparison of a NHSM’s contaminant 

concentrations to the traditional fuels 

which the combustion unit is designed 

to burn is explained in several related 

rulemakings.48

The Agency disagrees with the 

suggestion to develop specific 

contaminant levels. We previously said 

that if we were to consider such an 

approach, the Agency would have to 

establish a line for what is acceptable 

and the line may either be somewhat 

arbitrary or it may exclude materials 

that, if carefully considered, should be 

considered legitimate. On the other 

hand, case-by-case comparisons by each 

person evaluating this legitimacy 

criterion can take into account the wide 

variety of NHSMs, as well as the 

appropriate traditional fuel to which it 

is being compared. Because this factor 

must apply to various different 

recycling activities and industries, the 

case-by-case approach is most 

appropriate.49 Thus, an NHSM must 

contain contaminants at levels that are 

comparable to or lower than the range 

provided for the traditional fuel on a 

case-by case basis to qualify as a 

product fuel. 

In the case of a categorical non-waste 

listing, the Agency may list a specific 

NHSM when it has determined that the 

NHSM has not been previously 

discarded, or if discarded, has been 

sufficiently processed, and is 

legitimately used as a product fuel. 

When an NHSM is listed as a categorical 

non-waste, persons that generate or burn 

processed C&D wood will not need to 

make individual (i.e., case-by-case) 

determinations that it meets the 

legitimacy criteria (see 79 FR 21009). 

Specifically for C&D wood, the Agency 

has evaluated all data and information 

and has determined that C&D wood 

processed according to best 

management practices is transformed 

into a legitimate product fuel and is 

appropriately listed as a categorical nonwaste. Thus, a case-by-case comparison 

of contaminant levels in processed C&D 

wood to clean wood/biomass is not 

required for C&D wood processed 

according to best management practices. 

However, if the processing of C&D wood 

is found to be in non-compliance with 

conditions of this listing, the combustor 

may face enforcement action. 

c. Construction and Demolition (C&D) 

Wood Processed From C&D Debris 

According to Best Management 

Practices 

Comment: C&D wood should be 

regulated as a solid waste because it is 

discarded similar to scrap tires. 

Response: The Agency agrees that a 

discarded NHSM is a solid waste first. 

However, the commenters make an 

incorrect comparison between C&D 

wood and scrap tires. In the March 21, 

2011 final rule, the Agency stated that 

‘‘. . . a system where scrap tires are 

removed from vehicles and are collected 

and managed under the oversight of 

established tire collection programs are 

not discarded in the first instance . . . 

[t]hese programs ensure that the tires are 

not discarded en route to the combustor 

for use as a fuel and are handled as a 

valuable commodity . . .’’ 50 In this 

case, the commenters did not 

acknowledge the Agency’s previous 

determination that not all scrap tires are 

discarded. Moreover, the Agency later 

finalized a categorical non-waste listing 

for scrap tires that are not discarded. 

See the final rule in the Federal Register 

at 78 FR 9154, February 7, 2013, and 40 

CFR 241.4. 

Contrary to scrap tires, mixed C&D 

debris (i.e., it is not composed of only 

clean cellulosic biomass) is discarded in 

all instances and must be processed 

sufficiently to transform the resulting 

C&D wood into a legitimate non-waste 

fuel. This is unlike scrap tires, where 

only the scrap tires that have been 

discarded must be processed to become 

a non-waste fuel. 

The Agency has discussed its position 

on processing of discarded secondary 

materials at length in the March 21, 

2011 final rule. For discarded secondary 

materials, when sufficient processing 

has been performed and if the resulting 

material meets the legitimacy criteria, 

the fuel or ingredient product would be 

considered a non-waste material (76 FR 

15475–76, March 21, 2011). The Agency 

has determined previously that C&D 

debris can be processed to transform the 

C&D wood into a product fuel that 

meets the legitimacy criteria (76 FR 

15485, March 21, 2011 and 78 FR 9138, 

February 7, 2013). Further, the Agency 

has determined that processed C&D 

wood is appropriately listed as a 


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51For a complete discussion of the certification 

and training requirements, see section V.A.3. of this 

preamble. These requirements are codified at 40 

CFR 241.4(a)(5)(iii) and (iv). 

52 75 FR 31863 and 76 FR 15484. 

53Since publication of these rules and the April 

2014 proposal (79 FR 21005), the Agency has 

received a petition for a categorical non-waste 

listing for other treated wood types (included in the 

docket for this rule), one of which is wood treated 

with copper naphthenate. The petition included 

contaminant data for wood treated with copper 

naphthenate and is under evaluation. 

categorical non-waste when specific 

conditions are met which are: 

conducting processing according to best 

management practices, conducting 

training, and providing a written 

certification. These conditions are 

designed to ensure that the resulting 

C&D wood is a non-waste product fuel. 

Comment: The EPA’s March 21, 2011 

document ‘‘Identification of nonhazardous secondary materials that are 

solid waste’’ states that when C&D is 

sorted, painted wood is removed. This 

is misleading and is not the case. 

Painted and contaminated wood is 

routinely burned as evidenced by an 

interview at a processing facility where 

the plant manager stated that the 

‘‘positive pick’’ process did not remove 

painted wood from the line and by a 

photograph of the same facility’s 

processed C&D wood containing painted 

wood. In addition, another processing 

facility whose product fuel is reported 

to consist of forest industry waste, 

shredded construction wood waste, and 

demolition debris also contains 

significant amounts of paper, plastic, 

and foreign debris. 

Response: The commenter 

misconstrues the Agency’s discussion of 

processed C&D wood in the final rule at 

76 FR 15485, March 21, 2011. When 

describing how contaminated C&D 

wood can become a non-waste product 

fuel, the Agency stated that ‘‘C&Dderived wood is typically sorted to 

remove contaminants (e.g., lead-painted 

wood, treated wood, non-wood 

materials), and size reduced prior to 

burning, producing material that likely 

meets the processing and legitimacy 

criteria for contaminants.’’ Nothing in 

this statement specifically says that 

painted wood is removed through the 

sorting process. Furthermore, the 

Agency notes that not all painted wood 

is lead-based and thus, does not present 

the same contaminant concerns. 

The Agency is concerned however, 

that lead painted wood and fines 

containing lead can contribute to 

elevated levels of lead in processed C&D 

wood. Thus, the Agency proposed and 

has finalized in this rule certain best 

management practices designed to 

eliminate sources of lead in processed 

C&D wood. C&D processors have 

options for excluding (positive sorting) 

or removing (negative sorting) sources of 

lead: Excluding or removing all painted 

wood from the incoming material, using 

X-ray Fluorescence to detect and 

exclude or remove lead-painted wood 

from the product fuel, or requiring 

documentation that a building has been 

tested for and does not include leadbased paint before accepting the 

demolition debris. In addition, negative 

sorting facilities must also remove fines 

during processing. 

The Agency also agrees that other 

types of treated wood are often present 

in C&D debris. To address potentially 

elevated levels of other contaminants in 

treated wood, the Agency had proposed 

and has finalized in this rule best 

management practices to designed to 

eliminate specific types of treated wood 

from processed C&D wood. The best 

management practices require exclusion 

or removal of wood treated with 

creosote, pentachlorophenol, chromated 

copper arsenate, or other copper, 

chromium, or arsenical preservatives. In 

addition, the best management practices 

require exclusion or removal of nonwood materials such as plastics, 

drywall, concrete, aggregates, dirt and 

asbestos. See 40 CFR 241.4(a)(5). For a 

detailed discussion of the final best 

management practices, please refer to 

section V.A.3. of this preamble. 

Comment: The EPA must require 

testing for contamination. C&D as a 

waste fuel is extremely variable. ‘‘Slugs’’ 

of contaminated wood move through 

sorting facilities at various times. 

Response: The Agency agrees that 

C&D debris is extremely variable as a 

waste. Certain factors such as where the 

C&D debris originates from and the 

amount of sorting prior to arrival at the 

processing facility can influence the 

extent and type of contaminated 

material arriving at the processing 

facility. Also, whether positive or 

negative sorting is used and the scale of 

the processing facility (i.e., the degree of 

sorting and screening devices) further 

contributes to variability within the 

industry. To address this variability, the 

Agency has finalized best management 

practices (see 40 CFR 241.4(a)(5)) for 

this categorical non-waste listing that 

require specific materials to be excluded 

or removed during processing. Also, as 

part of the best management practice 

requirements, C&D processors must 

certify that their processed C&D wood 

has been sorted by trained operators.51

The best management practices 

ensure that the contaminants in the fuel 

that is burned will be predictable, 

regardless of the type or number of 

processing techniques used or the 

source of the C&D debris. Thus, the 

Agency does not agree that it is 

necessary to require contaminant testing 

for this categorical non-waste listing. 

However, if a person chooses not to take 

advantage of this categorical non-waste 

listing, then a case-by-case 

determination would need to be made 

that the C&D wood has been sufficiently 

processed according to 40 CFR 241.2 

and meets the legitimacy criteria 

according to 40 CFR 241.3(d)(1). 

Comment: Copper should be deleted 

from the best management practice list 

of materials that are to be excluded or 

removed from the final product fuel. 

While the list includes materials that 

may not qualify as non-hazardous and 

materials that are addressed separately 

in the proposal, it overreaches by 

including copper, which is neither 

hazardous nor a listed Hazardous Air 

Pollutant (HAP). The proposed rule’s 

preamble provides no basis for requiring 

exclusion or removal of wood that 

contains copper, and it is not necessary 

to include this restriction in order to 

avoid concerns about CCA or other 

arsenic or chromium-based 

preservatives, since they are covered by 

provisions in the proposed rule. 

Response: The Agency disagrees that 

copper should be deleted from the list 

of materials to be excluded or removed. 

The Agency had previously found, 

based on information in the June 2010 

proposed rule and the March 21, 2011 

final rule that wood treated with copper 

napthenate is considered a solid waste 

because of concerns of elevated 

contaminants. At the time of these rules, 

the Agency indicated that it did not 

have sufficient information on 

contaminant levels in wood treated with 

copper naphthenate.52 53 As a result, we 

have determined that copper should 

remain on the list. 

Comment: In the third sentence of the 

proposed regulatory language for the 

best management practices, specific 

materials are required to be excluded or 

removed. This is much too restrictive 

because it can be interpreted as meaning 

all listed materials must be completely 

removed from the C&D debris. The 

requirement as proposed would render 

the requirement unworkable and 

impossible to meet. It would be more 

appropriate to require that the BMPs 

‘‘substantially exclude or substantially 

remove’’ unwanted materials in order to 

recognize that some small amount of 

unwanted materials, although 

insignificant, may pass through the C&D 

stream even when using BMPs. 

Similarly, the proposed regulatory 

paragraph at 40 CFR 241.4(a)(5)(ii) 


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54See 76 FR 15486 (March 21, 2011). 

55See 71 FR 21011 (April 14, 2014). 

56See Blassino, Monika, et al. ‘‘Methods to 

Control Fuel Quality at Wood Burning Facilities,’’ 

EPA–HQ–RCRA–2013–0110–0033. 

57Please see the discussion at 71 FR 21014–015 

for a detailed explanation of how the Agency 

initially addressed the specific contaminants: 

fluorine, lead, pentachlorophenol, and 

formaldehyde. See also section V.A.4 of this 

preamble for final Agency determinations. 

contains the terms ‘‘remove’’ and ‘‘must 

remove.’’ Again, these terms are 

believed to be overly prescriptive, and 

should be modified to recognize that 

small, insignificant amounts of 

undesirable materials may be present in 

the final fuel product. 

Another comment suggested that the 

words ‘‘to the extent practical’’ be added 

to the current language for clarification 

that 100 percent exclusion or removal is 

not required. The EPA should revise the 

description of best management 

practices to remove the implication that 

100 percent of the listed materials are to 

be removed or excluded. 

Response: The Agency did not intend 

that the terms ‘‘excludes’’ and 

‘‘removes’’ to mean that 100 percent of 

the listed materials be excluded or 

removed, or that the listed materials 

must be completely removed from the 

C&D debris during processing. While it 

is essential to exclude or remove the 

listed materials, the Agency also 

recognizes that a material would still be 

a non-waste even if there are some 

negligible or de minimis amounts of 

contaminants in the final combusted 

material. This is supported by the 

rulemaking record, specifically the 

discussion in the March 21, 2011 final 

rule where commenters argued that 

there should be a de minimis exemption 

for processed C&D wood to address 

small or de minimis amounts of material 

remaining on the wood. In response, the 

EPA acknowledged that ‘‘C&D-derived 

wood can contain de minimis amounts 

of contaminants and other materials 

provided it meets the legitimacy 

criterion for contaminant levels’’ and 

thus, did not find it necessary to finalize 

a de minimis exemption.54 That 

discussion supports the application of a 

de minimis principle for this rule for 

exclusion and removal of contaminants. 

The concept of de minimis amounts of 

material in processed C&D wood is also 

supported throughout the proposed 

rule. The Agency noted that C&D wood 

processing facilities can use a variety of 

techniques to exclude or remove debris 

unsuitable for a product fuel and that 

the processing techniques used may be 

based on several factors such as: the 

nature of 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.55 In addition, C&D 

processors who provide extensive 

training for their workers to recognize 

treated wood tend to be more successful 

than those processors who do not 

provide extensive training in excluding 

or removing treated wood, as evidenced 

by the Florida study.56 When 

considering the data submitted for C&D 

wood, it demonstrates that there is 

variability regarding levels of 

contaminants present in processed C&D 

wood, but that the contaminant levels 

are well within the range of clean wood 

and biomass materials for most every 

contaminant.57 Thus, all of these factors 

taken together recognize that there 

invariably will be some amount of 

unwanted materials that contribute to 

contaminant concentrations even when 

using best management practices and 

trained operators, but that a legitimate 

product fuel is still produced. 

To include language as the comments 

suggested, such as to ‘‘substantially 

exclude or substantially remove’’ or ‘‘to 

the extent practical,’’ gives the 

perception that the best management 

practice standard is not a stringent 

requirement, but akin to a ‘‘best efforts’’ 

standard. This would not be an 

acceptable standard to ensure that 

processed C&D wood is a legitimate 

product fuel. Thus, the Agency has 

determined that it is not necessary or 

accurate to modify or add terms to the 

regulatory language to state that 100 

percent exclusion or removal is not 

required. 

Comment: Management practices for 

positive sorting are intended to address 

lead. Data provided to the EPA 

demonstrates that industry practices 

appropriately manage lead to ensure 

that specifications are met and that 

combustors will meet the limits in their 

Clean Air Act permits. Nonetheless, the 

management practices that address lead 

proposed by the EPA are not opposed 

when specific clarifications are made to 

address concerns as requested. The 

following concerns also apply to the 

management practices for negative 

sorting: 

First, 100 percent removal of 

unwanted material is not technically 

feasible, practicable, nor necessary to 

produce a legitimate fuel product. 

Second, one option for removal of 

lead painted wood is the use of XRF ‘‘to 

ensure that painted wood included in 

the final product fuel does not contain 

lead-based paint.’’ The EPA cites the 

University of Florida pilot study of a 

conveyor system that was funded by the 

manufacturer of XFR equipment. This is 

a pilot study that has not been 

demonstrated for an industrial setting. 

In fact, it has a throughput of only 20 

tons per hour while most C&D 

processing facilities are permitted to 

manage 500 tons a day or more and 

operate on only one shift a day. It is 

neither feasible nor practicable to 

‘‘ensure’’ all wood painted with leadbased paint is removed using XRF 

technology. The C&D processors that 

currently use XRF use a hand held gun 

to test a sample of an incoming load. 

None use the conveyor system described 

in the University of Florida study. 

The lead paint testing option raises 

similar concerns. It is assumed that the 

EPA is not suggesting that every square 

foot of painted wood be tested. 

It is requested that the EPA modify 

the description of these management 

practices to remove the implication that 

100 percent removal is technically 

feasible and practicable and allow C&D 

processors to screen samples, not every 

piece of painted wood. To clarify these 

issues, the EPA could modify the 

regulatory language for both positive 

and negative sorting such that the 

second option would read, ‘‘use X-ray 

Fluorescence to test a sample of painted 

wood from each source or supplier of 

demolition debris received by the C&D 

wood processor to identify and reject 

wood with lead-based paint.’’ For the 

third option, it would read ‘‘require 

documentation that a sample of painted 

wood from a building has been tested 

for and does not include . . .’’ 

Response: First, the Agency disagrees 

that it is valid to say that industry 

practices appropriately manage lead. 

The data submitted to the Agency 

demonstrate otherwise. As noted in the 

proposal, there were instances in which 

isolated samples from Massachusetts (at 

407 and 437 ppm) and Wisconsin (at 

482 ppm) exceeded the lead levels 

found in clean wood and biomass (ND– 

340 ppm). While most of the 224 

samples detected lead within the range 

found in clean wood and biomass, it is 

important to recognize that each high 

sample could represent a large amount 

of processed C&D wood produced by an 

outlier facility. Accordingly, an overly 

broad categorical non-waste listing 

could include processed C&D wood 

from facilities where the final product 

consistently contains high lead levels. 

Facilities that had lower levels of lead 

either did not accept painted wood or 

required documentation of XRF testing 

before accepting demolition debris. (See 

79 FR 21014, April 14, 2014.) 

Accordingly, the Agency includes in the 

regulation the requirement that at least 

one practice must be used for positive 


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6706 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

58See revised Appendix A (Revision Submission: 

April 25, 2013) to letter from Susan Bodine to 

Suzanne Rudzinski in Docket ID: EPA–HQ–RCRA– 

2013–0110–0022. 

59 ‘‘Green Material’’ under California law means 

any plant material that is separate at the point of 

generation, contain no greater than 1.0 percent of 

physical contaminant by weight, and meets the 

requirements of Title 14 CCR, Division 7, Chapter 

3.1, Article 7, section 17868.5. Green material 

includes, but is not limited to yard trimmings, 

untreated wood wastes, natural fiber products, and 

C&D wood waste. 

60See Attachment 1 of comment submitted by 

Covanta Energy Corporation in Docket: EPA–HQ– 

RCRA–2013–0110–0084. 

sorting facilities and negative sorting 

facilities; however negative sorting 

facilities must also remove fines. 

Moreover, it is important to 

understand that the limits imposed in a 

Clean Air Act permit have no bearing on 

what is determined to be a waste or nonwaste under RCRA when the material 

goes to a combustion facility. The point 

is that Clean Air Act permits must apply 

to the input material—whether they are 

wastes or not, and control of the 

associated emissions. The input 

material determines which Clean Air 

Act standards (i.e., CAA section 112 or 

CAA section 129) are applicable. 

Second, the Agency does not agree 

with the suggested language that would 

specify testing for a representative 

sample or ‘‘sample of painted wood 

from each source or supplier’’ be 

performed for purposes of meeting the 

XRF lead elimination option. The term 

‘‘sample’’ can vary in interpretation 

from one processor to another, with 

some analyzing more samples than 

others which could result in significant 

amounts of lead. This would indicate 

disposal rather than use as a product 

fuel. The proposed language at 40 CFR 

241.4(a)(5)(i)(B) and (ii)(B) which states, 

‘‘[u]se X-ray Fluorescence to ensure that 

painted wood included in the final 

product does not contain lead-based 

paint . . .’’ is intended to be a stringent 

standard, which the Agency adopts for 

the final rule. The expectation is that if 

a processor accepts painted wood, then 

it must determine if the paint is leadbased. If it is positive for lead, then that 

piece of wood must be excluded or 

removed. The same applies to the 

language at 40 CFR 241.4(a)(5)(i)(C) and 

(ii)(C) that requires documentation that 

a building has been tested for and does 

not include lead-based paint prior to 

accepting demolition debris from that 

building. The Agency is not including 

regulatory language in regard to 

sampling. Rather, the frequency of 

sampling should be determined by the 

processor such that the processor can 

ensure that the accepted painted wood 

is not lead-based. 

The Agency is convinced by the data 

that when XRF technology is used, the 

lead levels in processed C&D wood are 

comparable to or below the lead levels 

found in clean wood and biomass. 

Specifically, a facility located in 

Washington State receives co-mingled 

C&D debris. Prior to materials being 

accepted for processing, a rigorous 

inspection process is carried out, 

including documentation showing that 

the building was inspected for asbestos 

containing materials if it was from a 

demolition or renovation project, and 

visual inspections and lead-based paint 

testing through XRF. As a result, the ten 

samples analyzed show an average lead 

concentration of 10.6 ppm, with a 

maximum of 26 ppm.58 This shows that 

the lead elimination options as 

proposed are in fact achievable. 

If a processor chooses to accept and 

include painted wood for processing, 

then the painted wood either must be 

analyzed via XRF or documentation 

must be provided from a demolition or 

renovation project indicating that 

painted wood has been analyzed and 

does not contain lead. As noted above, 

the frequency of sampling should be 

determined by the processor such that 

the processor can ensure that the 

accepted painted wood is not leadbased. The Agency finds that the lead 

elimination options for both XRF and 

documentation that a building has been 

tested for and does not include leadbased paint prior to accepting 

demolition debris from that building, 

are appropriate and finalized as 

proposed. 

To respond to the comment about the 

Agency’s citation of the XRF conveyor 

system in the University of Florida 

pilot-study, we understand that 

processors would be hesitant to make a 

significant investment in a XRF 

conveyor system that has not yet been 

proven in a large industrial setting. The 

aspect of the study that the Agency 

found relevant was the discussion of the 

benefit of providing extensive training 

to operators for visual recognition of 

treated wood. The Agency does not 

promote one XRF technology over 

another. The Agency recognizes that not 

all processors use XRF technology (i.e., 

handheld gun), thus it is an option for 

both positive and negative sorters—so 

that processors can choose to invest in 

XRF or comply with one of the other 

lead elimination options. Nevertheless, 

a determination to finalize the option to 

use XRF is appropriate regardless of the 

volume of the input. The point is that, 

even with high volume input, the lead 

must be removed. 

Finally, similar to other comments 

that identified terms in regulatory 

language that appear too restrictive (see 

preceding comment and response), the 

Agency does recognize that a material 

can still be a non-waste even if there are 

some negligible or de minimis amounts 

of contaminants in the final combusted 

material. The Agency acknowledges that 

C&D-derived wood can contain de 

minimis amounts of contaminants and 

other materials provided it meets the 

legitimacy criterion for contaminant 

levels. Again, to include terms such as 

‘‘sample’’ or even ‘‘representative 

sample’’ in regulatory language gives the 

perception that the best management 

practice standard for eliminating lead is 

not a stringent requirement, but akin to 

a ‘‘best efforts’’ standard. This would 

not be an acceptable standard to ensure 

that processed C&D wood is a legitimate 

product fuel. 

Comment: A commenter stated that 

facilities [called ‘‘chipping and 

grinding’’ facilities] which process only 

clean segregated wood, but that may 

have to remove de minimis amounts of 

unwanted material, should not be 

required to remove fines because the 

C&D debris fines which may contain 

contaminants are left behind as a result 

of the segregation. These chip and grind 

facilities are permitted to receive and 

grind ‘‘Green Material’’, which under 

California regulations includes 

acceptable C&D-derived wood as well as 

other clean cellulosic biomass 

materials.59

The acceptable C&D wood is sourced 

from contractors, homeowners, 

community collections, and other 

typically small generators who segregate 

and/or collect clean wood from C&D 

sites. Chip and grind facilities do not 

process comingled C&D, but they may 

need to remove de minimis amounts of 

visible residual physical contaminants 

such as metal, plastics, and pieces of 

non-compliant wood that may be 

present in the green material, typically 

by hand, in order to meet customers’ 

fuel quality specifications. This quality 

control measure should not be deemed 

processing by negative sorting which 

triggers the requirement to remove fines. 

Fines removal would be an expensive 

step at chipping and grinding facilities 

and is unnecessary because the C&D 

wood received has already been 

seperated from the mixed C&D materials 

and contaminants, including fines, are 

not present in meaningful amounts. An 

attachment for five different California 

chipping and grinding facilities that 

receive and grind green material, but do 

not remove fines, show that each 

facility’s fuel meets the NHSM rule’s 

contaminant criterion.60


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61See revised Appendix A p. 2. (Revision 

Submission: April 25, 2013) to letter from Susan 

Bodine to Suzanne Rudzinski available in Docket 

ID: EPA–HQ–RCRA–2013–0110–0022. 

Another commenter states that they 

use fuel from a ‘‘chip and grind’’ 

operation that receives and then resizes 

clean cellulosic biomass, and material 

from contractors, small operators, and 

generators of source-separated wood. 

These materials are sorted prior to 

receipt at the chip and grind processor, 

and therefore there are no fines that 

require screening or further separation. 

The EPA should not require fines 

removal at chip and grind facilities that 

receive and process only source 

separated C&D wood, since the fines 

have been left behind with the nonwood C&D debris during the positive 

pick process. 

Response: Chip and grind facilities 

would not be considered negative 

sorters for purposes of the best 

management practices for lead under 

this rule if in fact their sorting 

operations only involve removal of 

small or de minimus amounts of 

unwanted material (as described above) 

they have received from a source that 

has segregated/pre-sorted the C&D 

material through positive sorting. This 

would be different from the situation in 

which C&D processors accept and 

process co-mingled C&D material in a 

large centralized facility which we 

discussed in the proposal. 

According to the data submitted by 

one commenter for five chip and grind 

facilities that do not remove fines, lead 

concentrations for its biomass fuel loads 

were all significantly lower (with the 

highest concentration at 104 ppm, 

followed by 77 ppm, 48 ppm, 29 ppm, 

and 32 ppm) than the upper end for 

wood and biomass (340 ppm). Based on 

the sampling data and the fact that the 

C&D wood has been pre-sorted via 

positive sorting before reaching the chip 

and grind processing facility, we agree 

with the commenters that chip and 

grind processors should not be 

considered negative sorting facilities 

when they conduct further sorting to 

remove small amounts of unwanted 

materials. Therefore, we have revised 

the best management practice 

description with respect to lead 

elimination requirement for positive 

sorters to include facilities ‘‘. . . that 

receive and process positive sorted C&D 

wood’’. See revised 40 CFR 

241.4(a)(5)(i). 

d. Specific Requests for Comments 

i. Pentachlorophenol 

Comment: The proposed requirements 

for operators to exclude or remove 

utility poles treated with 

pentachlorophenol are consistent with 

industry practices and combustor 

specifications and thus, no additional 

requirements are necessary beyond 

training. Pentachlorophenol treated 

wood is easily recognizable with visual 

inspection based on its dark brown 

color. 

Response: The Agency agrees that the 

requirement for processors to train 

operators to identify pentachlorophenol 

treated lumber (as well as any other 

treated lumber) as part of the best 

management practices is sufficient to 

ensure that these products are excluded 

or removed from incoming C&D debris. 

Because sources of pentachlorophenol 

can be readily identified by color and by 

shape of the treated wood, no additional 

conditions other than those specified by 

the best management practices are 

necessary. 

Comment: The EPA should allow 

testing of older, weathered poles for the 

presence of pentachlorophenol above 

some preset level, since poles exposed 

to deterioration from ultraviolet light 

and precipitation frequently have lower 

levels of pentachlorophenol and can be 

burned safely with controls. Levels must 

be low enough to prevent the formation 

of dioxin/furans in combustors. The 

summary for the EPA study ‘‘Products 

of Incomplete Combustion from Direct 

Burning of Pentachlorophenol-treated 

Wood Wastes,’’ (EPA/600/SR–98/013) 

states that ‘‘[t]he tests showed that 

combustion is an effective method of 

destroying the pentachlorophenol in the 

treated wood, with destruction 

efficiencies higher than 99.99 percent.’’ 

Additional processing to meet boiler 

specifications should be included. 

Response: The Agency disagrees that 

it should allow testing of older, 

weathered poles for the presence of 

pentachlorophenol. The very argument 

that appropriate controls should be used 

to allow burning of pentachlorophenol 

supports the point that the 

pentachlorophenol is, indeed, a waste 

and should be burned under CAA 

section 129 standards. Thus, the 

comments that pentachlorophenol can 

be effectively and safely destroyed 

[emphasis added] (i.e., 99.99 percent 

destruction and removal efficiency) and 

dioxin formation can be prevented 

[emphasis added] when levels are low 

enough are concessions that 

pentachlorophenol in the poles is a 

waste. Combustion for the purpose of 

destruction is a function of waste 

combustion units (e.g., boilers burning 

hazardous waste and incinerators 

burning hazardous, municipal, or 

medical wastes), where 

pentachlorophenol would not be burned 

as a fuel, but primarily for destruction. 

Development of a preset level of 

contaminant concentrations is an 

activity to determine appropriate 

standards under the CAA. Under the 

NHSM framework, the material’s 

contaminant concentration must be 

comparable to, or less than, the 

traditional fuel it is replacing which is 

one part of the process for determining 

whether the material has been discarded 

before or during its combustion. In this 

case, clean wood and biomass are the 

traditional fuels that are being replaced 

by processed C&D wood. Clean wood 

and biomass do not contain 

pentachlorophenol (non-detect levels) 

and, therefore, processed C&D wood 

may not contain measureable levels of 

pentachlorophenol. Otherwise, any 

processed C&D wood containing 

pentachlorophenol would be considered 

to be burned for destruction, which is 

indicative of discard. For further 

discussion on the Agency’s approach to 

contaminant comparisons, see the 

response to comment in section V.6.b. 

ii. Formaldehyde Levels 

Comment: We strongly support the 

EPA’s decision to balance formaldehyde 

levels with the fuel value of the 

resinated wood component of C&D 

wood to allow formaldehyde levels in 

C&D wood fuel that are somewhat 

higher than found in coal or biomass. 

First, when formaldehyde is grouped 

with other VOCs and SVOCs and 

compared to the levels of this 

contaminant grouping in C&D wood, the 

levels are comparable to coal.61 Second, 

the only source that we are aware of 

formaldehyde in C&D wood is resinated 

wood. The EPA has already recognized 

that resinated wood is a valuable fuel 

commodity and has identified it as a 

non-waste fuel. 40 CFR 241.4(a)(2). The 

basis for this determination includes the 

recognition that resinated wood is a 

valuable fuel source due to its high fuel 

value relative to other wood. 76 FR 

80483. 

The EPA also recognized that 

including resinated wood in a fuel mix 

actually decreases hazardous air 

pollutant emissions. 76 FR 15502. While 

not relevant to a determination of 

whether the contaminant legitimacy 

criterion is met, this impact on 

emissions is a relevant factor to be 

balanced when making a non-waste 

determination under 40 CFR 241.4. 78 

FR 9112, 9157 (February 7, 2013). 

As a component of a processed fuel, 

resinated wood is not being combusted 

to discard it. On the contrary, as 


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62Comments can be found in the rulemaking 

docket: EPA–HQ–RCRA–2013–0110–0076.1; EPA– 

HQ–RCRA–2013–0110–0088; and EPA–HQ–RCRA– 

2013–0110–0083.1. 

63Because there are no data available on 

formaldehyde levels in coal, the commenters’ 

approach grouped the PAH levels (which are 

SVOCs) and VOC levels in coal and then compared 

them to the levels of the same contaminant 

groupings in C&D wood. See revised Appendix A, 

p. 2. (Revision Submission: April 25, 2013) to letter 

from Susan Bodine to Suzanne Rudzinski available 

in Docket ID: EPA–HQ–RCRA–2013–0110–0022. 

64See 76 FR 80477 (December 23, 2011) for a 

broader discussion. 

65April 26, 2013 letter from Susan Bodine to 

Suzanne Rudzinski, available at Docket ID: EPA– 

HQ–RCRA–2013–0110–0025. 

discussed above, it is a component of a 

product that is a commodity fuel.62

Response: The Agency agrees with the 

overall argument that resinated wood 

can be burned as a product fuel along 

with other processed C&D wood. The 

Agency described two relevant factors 

in the proposal believed to be 

appropriate for balancing the higher 

formaldehyde levels found in processed 

C&D wood as a result of the inclusion 

of resinated wood components. First, 

although formaldehyde levels in 

processed C&D wood may reach 176.8 

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. Second 

and more importantly, for many 

combustors, processed C&D wood 

scraps that include resinated wood 

components, actually have added value 

and are either selected for (in the case 

of positive sorting) or specifically not 

removed (in the case of negative sorting) 

because the wood has been kiln-dried 

prior to use in construction. Kiln-dried 

wood has a greater heating value than 

virgin wood, almost double in some 

cases. Kiln-dried wood also has more 

consistent moisture content; an equally 

important benefit to combustors because 

a consistent fuel improves combustion 

efficiency and leads to reduced 

emissions of particulate matter, carbon 

monoxide, and other organic hazardous 

air pollutants. 

The Agency has determined that the 

additional factors discussed in the 

proposal are appropriate and has 

adopted that rationale for the final rule. 

Thus, resinated wood may remain in 

C&D wood prior to processing for this 

categorical non-waste listing. This 

determination is based in part on the 

fact that future rules will limit levels of 

formaldehyde in wood products, and 

will in effect, also reduce the levels of 

formaldehyde in processed C&D wood. 

Also and more importantly, information 

submitted to the Agency states that 

some processors choose to include 

resinated wood in processed C&D based 

on combustor specifications for a higher 

Btu value fuel. This demonstrates that 

resinated wood is a valuable fuel and is 

not burned for destruction. Thus, the 

final rule allows flexibility for 

processors to choose whether they will 

exclude or remove any resinated wood 

prior to processing the C&D debris. 

Regarding the citations provided in 

support of commenters’ rationale for not 

requiring exclusion or removal of 

formaldehyde, clarification is needed. 

The citation at 76 FR 80483, December 

23, 2011, discussed the Agency’s 

proposed rationale for listing resinated 

wood as a categorical non-waste. 

However, the fact that the Agency 

finalized a listing for resinated wood as 

a categorical non-waste at 40 CFR 

241.4(a)(2) (see also final rule at 78 FR 

9155, February 7, 2013), has no 

relevance to a determination of whether 

it is appropriate to allow elevated levels 

of formaldehyde from resinated wood in 

an entirely different industrial process. 

In the proposal at 79 FR 21015, April 

14, 2014. the Agency reviewed the 

rationale behind the categorical nonwaste listing for resinated wood, which 

discussed that, although the situation 

appears similar to the categorical nonwaste listing for resinated wood in 40 

CFR 241.4(a)(2), details surrounding use 

of the two NHSMs as fuel are not the 

same. In the case of resinated wood, as 

defined in 40 CFR 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 in the 

furniture manufacturing industry. The 

Agency is not aware of an industrial 

process that is reliant upon C&D wood 

for its energy needs. 

The Agency also disagrees with the 

suggested grouping approach included 

as reasoning for allowing resinated 

wood to be present in C&D wood. The 

commenter suggested that when 

formaldehyde is grouped with other 

VOCs and SVOCs and then compared to 

levels of this contaminant grouping in 

C&D wood, the levels are comparable to 

coal.63 The commenter also argued that 

this is an acceptable approach because 

the Agency had previously determined 

that it is technically correct to group 

VOCs and SVOCs because they behave 

similarly in combustion units. The 

rationale behind this grouping 

approach, however, was to establish 

emission standards where carbon 

monoxide serves as a surrogate for 

measuring total VOC and SVOC 

emissions.64 Under NHSM, the Agency 

has previously permitted grouping of 

total VOCs as well as grouping of total 

SVOCs, but not for both groups 

combined for purposes of comparison to 

a traditional fuel. More relevant 

however, is that the Agency does not 

have any information or data indicating 

that units combusting processed C&D 

wood also are designed to burn coal or 

do burn coal. Thus, coal is not an 

appropriate traditional fuel for 

comparison under this categorical nonwaste listing. 

Finally, while it is true that the 

Agency has recognized that including 

resinated wood in a fuel mix actually 

decreases some hazardous air pollutant 

emissions, the purpose of the discussion 

at 76 FR 15502, March 21, 2011, was to 

reiterate that the legitimacy criterion is 

based on the level of contaminants in 

the secondary material itself, and not 

based on comparing the differences in 

emissions. That said, the Agency agrees 

with the comment that, although not 

relevant to a determination of whether 

the contaminant legitimacy criterion is 

met, the impact on emissions is a 

relevant factor to be balanced when 

making a non-waste determination 

under 40 CFR 241.4. The Agency 

maintains that the benefits of burning 

kiln-dried wood not only provides 

higher heating value, but also more 

consistent moisture content which lends 

to more efficient combustion and thus 

reduced emissions of certain 

contaminants. 

iii. CCA-Treated Wood 

Comment: The requirement to train 

operators to exclude or remove treated 

wood is adequate, since visual 

identification via the color, grain, and 

shape (such as decking or fencing) of 

pieces works well to remove CCAtreated wood as demonstrated by the 

data in the record showing that arsenic 

and chromium levels in C&D wood are 

comparable to virgin wood.65

Response: The Agency agrees that the 

requirement to train operators to 

exclude or remove CCA-treated wood is 

the most appropriate option and has 

finalized this as part of the best 

management practices and as a separate 

training requirement at 40 CFR 

241.4(a)(5)(iii). The Agency also agrees 

that current data shows that arsenic and 

chromium levels in processed C&D 

wood are comparable to levels in clean 

wood and biomass (see Table 1. 

Comparison of Contaminants in Clean 

Wood/Biomass and Processed C&D 

Wood to section V.A.4 of this preamble), 

which results from those processors 


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66Blassino, Monika, et al. ‘‘Methods to Control 

Fuel Quality at Wood Burning Facilities.’’ Docket ID 

EPA–HQ–RCRA–2013–0110–0033. 

who choose to exclude or remove CCAtreated wood prior to processing. Thus, 

CCA wood can, and must, be removed 

efficiently to allow for a determination 

that the resultant wood is more like a 

product than like a waste. 

Because CCA-treated wood can 

represent up to 30 percent of the C&D 

waste stream and, unlike formaldehyde 

levels which are expected to decrease 

over time due to future rules to limit 

formaldehyde levels in resinated wood, 

levels of arsenic and chromium are 

expected to increase with continued use 

of CCA-treated lumber or other copper, 

chromium, or arsenical preservatives. 

As a result, the Agency has determined 

that CCA-treated wood must be 

excluded or removed from C&D debris 

to ensure that levels of arsenic and 

chromium in processed C&D wood 

remain comparable to or lower than 

levels in clean wood and biomass. 

Comment: The use of additional 

technology to identify CCA-treated 

wood, such as XRF guns or PAN 

indicator stains, would add unnecessary 

cost and time to the processing of C&D 

wood. Further, C&D processors that 

have tried PAN indicator stains have 

determined that the stains produce false 

positives and do not truly identify or 

measure arsenic. 

Response: The decision to require that 

operators be trained to exclude or 

remove treated wood (with the 

exception of resinated wood) as 

included in the best management 

practices, is based in part on the results 

from the Florida study for evaluating 

sorting technologies which showed a 

high rate of success when extensive 

training was provided for visual 

identification of treated wood; and in 

part because both XRF technology and 

PAN indicator stains are limited in 

application when processing large 

amounts of C&D debris. 

The Florida evidence demonstrates 

that processors who train their 

employees to visually recognize treated 

wood are successful in excluding or 

removing CCA-treated wood.66

Therefore, by requiring processors to 

train their operators as a condition of 

this categorical non-waste listing, it will 

ensure that levels of arsenic and 

chromium in processed C&D wood 

remain comparable to or lower than 

levels in clean wood and biomass as 

more CCA-treated wood is introduced 

into C&D debris. 

The proposition that XRF technology 

and PAN indicator stains would 

increase the cost and time associated 

with processing C&D wood is not 

relevant in the Agency’s determination 

to not require their use, although 

processors may use such tools. The 

main point is that these technologies are 

not necessary to remove excessive 

contaminants from the processed 

material when visual identification is 

sufficient. 

iv. Trained Operators 

Comment: The only elements of 

training that are appropriate for 

regulation are identification of the best 

management practices, not the details of 

how or by whom the training is 

provided. Processors should be free to 

design training programs that work for 

the individual processors. 

Response: The Agency agrees that the 

elements of a training program for 

processors should not be prescribed by 

the Agency for the C&D processing 

industry. The Agency’s decision to not 

prescribe specific elements of a training 

program is based on information in the 

record that discusses the variability 

within the C&D processing industry and 

the ability of trained operators to 

remove the waste materials from the 

incoming C&D debris (79 FR 21013, 

April 14, 2014). Variability refers to the 

origin of the material, the amount of 

material segregation prior to arrival at a 

processing facility, whether positive or 

negative sorting is used, and the scale of 

the processing facility. 

Rather than prescribing training 

requirements that may not be applicable 

to all C&D processing facilities (i.e., a 

‘‘one size fits all’’ approach), the better 

option is to provide flexibility for 

processors to choose how to train their 

operators. The Agency has determined 

that the regulatory language finalized at 

40 CFR 241.4(a)(5)(iii) provides the 

flexibility needed, but also ensures that 

C&D processing facilities have trained 

their operators in accordance with the 

best management practice requirements 

such that the resultant material is not 

discarded when combusted and is, 

therefore, not a waste. 

Comment: The EPA should specify 

minimum training requirements and 

develop requirements similar to those 

found in the waste combustor rules 

(New Source Performance Standards for 

small municipal waste combustion units 

at 40 CFR 60.1155). These provisions 

address who is to be trained, when the 

training must occur by, and what 

information must be included in the 

facility-specific training material. It 

would be difficult for C&D processing 

facilities to implement a training 

program without at least minimum 

requirements set forth in the rule. 

Further, combustors and state air 

agencies must have some way to 

determine if the ‘‘trained operator’’ 

requirement has been met. 

Response: The Agency does not agree 

that prescriptive requirements should be 

developed for C&D processors that are 

similar to the training standards for 

small municipal waste combustors. The 

standards identified in Part 60 for small 

municipal waste combustors are specific 

to the operation of a combustion unit, 

which is a very technical operation with 

regard to combustion engineering, 

equipment, and environmental 

compliance (e.g., air pollution control 

requirements) obligations, and thus are 

appropriate for that industry. Such 

specificity and degree of training is not 

necessary for the C&D processing 

industry because its operations are not 

technologically comparable. Thus, 

processors can develop a training 

program that meets their specific needs, 

but that also ensures, through required 

training (and best management 

practices), that the processed C&D wood 

material is not discarded when 

combusted and is, therefore, not a 

waste. 

The mechanism for determining if 

C&D processors have trained their 

operators as required is when the 

processor certifies, in the written 

certification statement that it has used 

trained operators in its sorting 

operations, as well as through the 

processor’s records of training. For 

example, should the processed C&D 

wood be found to contain contaminants 

that are not comparable to clean wood 

and biomass, then it may be an 

indication that the processor has not 

trained its operators as confirmed by the 

certification statement. See regulatory 

language located at 40 CFR 

241.4(a)(5)(iii), which states that 

‘‘[p]rocessors must train operators to 

exclude or remove the materials as 

listed in paragraph (a)(5) of this section 

from the final product fuel. Records of 

training must include dates of training 

held and must be maintained for a 

period of three years.’’ 

Comment: In response to solicitation 

for comment on whether processors 

would be required to keep records as a 

condition of the categorical listing to 

demonstrate that such operators have 

been formally trained, one comment 

requested that C&D processors be 

required to maintain records of the 

training they have received, similar to 

the requirements found in waste 

combustor rules (New Source 

Performance Standards for small 

municipal waste combustion units at 40 

CFR 60.1355). These provisions require 

records showing dates of completion of 

the training course, documentation 


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67A state may choose, however, to require a third 

party sampling program as an additional condition 

of this categorical non-waste listing. 

showing completion of the training 

course, and records of review of the 

training materials. 

Response: The Agency agrees that a 

condition is necessary to document that 

operators have been formally trained so 

that processors are accountable to their 

customers when certifying that they 

have used trained operators. Thus, 

separate requirements for processors to 

conduct training and maintain records 

of the training are finalized at 40 CFR 

241.4(a)(5)(iii). This requires that 

processors train their operators to 

exclude or remove the materials as 

listed in paragraph (a)(5) from the final 

product fuel. Although not as 

prescriptive as the waste combustor 

rules for similar reasons as discussed 

above, the Agency has determined that 

the following is adequate for 

demonstrating compliance with the 

trained operator requirement: records of 

training must include date of training 

held and must be maintained on-site for 

a period of three years. 

Comment: Training requirements 

should only apply to the final 

processing facility, which is responsible 

for the quality of the final product fuel 

and with whom the combustor has a 

contract or purchasing relationship. 

C&D wood may be partially sorted at 

various C&D sites, then sent to 

centralized site for final processing and 

thus, the upstream facilities should not 

be subject to training requirements. 

Response: The Agency agrees that 

only those processors who conduct the 

final processing steps and are 

responsible for the quality of the final 

product fuel, should be required to train 

their operators. Any processor who presorts in preparation for further 

processing at another facility would not 

need to implement a training program 

for its operators. It is the final processor 

who must ensure and certify that 

processing has transformed the 

processed C&D wood into a non-waste 

product fuel according to best 

management practices. 

v. Written Certification 

Comment: Purchase agreements 

between the provider of the C&D wood 

product and combustor provide 

sufficient records related to the quality 

of the product fuels being combusted at 

a facility. There is no need to increase 

the burden on regulated sources by 

requiring additional paperwork in the 

form of a written certification and 

personnel resources for a duplicative 

task. In addition, the EPA does not need 

to prescribe the form of the written 

certification because purchase 

agreements and contracts are common 

and provide sufficient documentation. 

Response: The Agency agrees that 

purchase agreements (or contracts) can 

provide records related to quality of the 

fuels being combusted at a facility. 

These documents indicate the 

commitments of the processor to meet 

the specifications and to provide quality 

processed C&D wood. The proposed 

rule suggested that such agreements can 

serve as the written certification 

document, but requested comment on 

whether a written certification 

statement, in addition to the contract/

purchase agreement, would be clearer 

and more effective (79 FR 21016, April 

14, 2014). 

Although contracts and purchase 

agreements indicate a commitment to 

quality, specifications can vary 

according to the needs of one combustor 

versus another with respect to the extent 

and type of contaminant removal 

required. More importantly, the 

contracts and purchase agreements that 

the Agency has seen do not show that 

C&D wood has been processed 

according to any particular best 

management practices and, 

consequently, cannot ensure that the 

resulting material is not a waste when 

combusted. As one commenter had 

noted, a mechanism must be in place 

which provides assurance that C&D 

wood is processed consistently and 

according to best management practices 

such that the final product meets the 

legitimacy criteria. The Agency concurs 

with that comment and is requiring 

combustors to obtain a written 

certification statement from the final 

processor as part of every new or 

modified contract, purchase agreement, 

or other legally binding document. This 

written certification statement must 

state that the processed C&D wood has 

been sorted by trained operators in 

accordance with best management 

practices. See new requirement at 40 

CFR 241.4(a)(5)(iv). 

The Agency disagrees that a 

requirement for a combustor to maintain 

a contract or purchase agreement in its 

records poses any additional burden on 

the regulated combustion source, since 

these documents are typically retained 

for other business purposes. The 

combustor would need only to ensure 

that the contract or purchase agreement 

contains the written certification 

statement as required by the regulations 

at 40 CFR 241.4(a)(5)(iv) and maintain 

in its records according to its existing 

regulatory obligations under 40 CFR 

parts 60 and 63. 

Comment: The EPA should prescribe 

what suffices for the ‘‘written 

certification.’’ At a minimum, it is 

recommended that the written 

certification include the specific 

management practices that the processor 

has undertaken. The written 

certification requirement should also 

specify how often the combustor must 

obtain the certification, whether it is 

once per load, one certification for each 

supplier, or in some other manner or 

frequency. Specific criteria for the 

certification should also include a 

requirement for an independent third 

party to routinely sample the processed 

C&D wood as part of an ongoing 

sampling program, and made it a 

requisite for the written certification. 

Response: The Agency disagrees that 

the processor should be required to 

include the specific best management 

practices undertaken in its certification, 

since the best management practices in 

40 CFR 241.4(a)(5) are applicable to all 

processors. The only distinction is 

between the lead exclusion/removal 

options for positive and negative sorters, 

which provide equivalent assurance that 

lead levels in processed C&D wood are 

comparable to or less than clean wood 

and biomass. 

The Agency does agree, however, 

with the suggestion to specify how often 

and who must submit the certification. 

This allows the combustor and 

regulatory personnel to determine 

where a shipment of inadequately 

processed C&D wood came from. For 

instance, upon sampling the processed 

C&D wood, results indicate that it 

contains high levels of one or more 

contaminants which can be traced back 

to a specific processor for investigation 

of compliance with best management 

practices. Thus, every new or modified 

contract, purchase agreement, or other 

legally binding document must include 

a statement by the final processor that 

the processed C&D wood has been 

sorted by trained operators in 

accordance with best management 

practices. See new regulatory language 

at 40 CFR 241.4(a)(5)(iv). 

Although a third party sampling 

program could provide further 

assurance that contaminated material 

has been removed from the fuel stream, 

the Agency cannot promote such a 

requirement for combustors given the 

data which supports this categorical 

non-waste listing for processed C&D 

wood.67 The data demonstrate that 

processors using best management 

practices are meeting the legitimacy 

criteria absent a regulatory requirement. 

The extent to which some processors 

may not be meeting the legitimacy 

criteria is remedied by imposing the 

conditions for certification and training 


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to identify contaminated materials in 

the rule. The Agency has determined 

that application of the best management 

practices at 40 CFR 241.4(a)(5), the 

written certification, and training record 

provides sufficient assurance. 

Comment: A number of state air 

permits already prohibit the use of C&D 

debris as a fuel type. Under the 

proposed amendments, these permits 

would need to be reopened, public 

noticed, and be made practically 

enforceable. 

Response: The Agency agrees that if a 

combustion facility would choose to 

burn C&D wood as a product fuel under 

this categorical non-waste listing, the 

facility’s permit would need to be 

reopened to include the processed C&D 

wood as a fuel type. The combustor 

would be responsible for documenting 

the C&D wood’s non-waste status 

according to 40 CFR 60.2740(u) 

(Emissions Guidelines) and 40 CFR 

60.2175(w) (New Source Performance 

Standards) for CISWI units and 40 CFR 

63.11225(c)(2)(ii) for area source boilers 

and 40 CFR 63.7555(d)(2) for major 

source boilers. 

Comment: The presumption is that air 

permits will need practically 

enforceable requirements addressing the 

proposed written certification 

provisions. The EPA should consider 

how the written certification would be 

enforceable for a small combustion unit 

that does not qualify for an air permit. 

Response: We are adopting in this 

final action the approach discussed in 

the proposal at 79 FR 21016, under 

which the written certification must be 

included as part of the contract, 

purchase agreement, or other legally 

binding document between the 

processor and the combustor. This 

documentation will also be considered 

a ‘‘record’’ which satisfies the record 

keeping requirements of section 

60.2740(u) (Emissions Guidelines) and 

section 60.2175(w) (New Source 

Performance Standards) for CISWI units 

and section 63.11225(c)(2)(ii) for area 

source boilers and section 63.7555(d)(2) 

for major source boilers. Each of these 

provisions contains a reference specific 

to categorical non-waste determinations 

under section 241.4 which read: ‘‘[f]or 

operating units that combust nonhazardous secondary materials as fuel 

per section 241.4 of this chapter, you 

must keep records documenting that the 

material is listed as a non-waste under 

section 241.4(a) of this chapter.’’ The 

requirement to document and keep a 

record exists within the Federal air 

regulations and in this case, the record 

is the written certification included 

within the contract, purchase 

agreement, or other legally binding 

document. The air regulations 

referenced in this paragraph are 

enforceable either through air permits 

when incorporated or are separately 

enforceable under the CAA. Thus, an air 

permit is not necessary to make a 

requirement enforceable. 

This is consistent with how any major 

source or area source combustion unit 

would document that the NHSM they 

are burning satisfies the 40 CFR part 241 

requirements for non-wastes. For 

example, if a combustor chooses not to 

comply with the conditions of the 

categorical non-waste listing for C&D 

wood under section 241.4(a)(5), then it 

could burn C&D wood on a case-by-case 

basis provided the combustor 

documents in its records that the 

processed C&D wood has been 

sufficiently processed per section 241.2 

and that the legitimacy criteria have 

been met according to section 241.3(d). 

The combustor would still be required 

to maintain such documentation 

according to its applicable Federal 

recordkeeping requirements (i.e., 

sections: 60.2740(u), 60.2175(w), 

63.11225(c)(2)(ii), or 63.7555(d)(2)). 

Comment: Combustors who process 

C&D wood for their own combustion 

should be allowed to self-certify that 

they have complied with the best 

management practices. 

Response: The Agency agrees that the 

ability to self-certify when the 

combustor is also the processor is 

appropriate. However, in the absence of 

a contract or purchase agreement, the 

combustor still must certify that the 

processed C&D wood has been sorted by 

trained operators in accordance with 

best management practices. A 

combustor who is also the processor is 

still subject to the requirements and 

conditions of this categorical non-waste 

listing. As the processor, the 

requirement to certify that the processed 

C&D wood has been sorted by trained 

operators in accordance with best 

management practices is applicable per 

40 CFR 241.4(a)(5)(iv). The training 

requirement is applicable per 40 CFR 

241.4(a)(5)(iii). As the combustor, the 

requirement to maintain the written 

certification statement as part of its 

records is applicable regardless of 

whether or not there is a contract or 

purchase agreement. If an inspection by 

a regulatory authority reveals that these 

requirements have not been met, then 

the combustor could face enforcement 

action. 

Comment: The EPA should consider 

that those who pre-sort C&D wood 

should not be required to provide 

certifications, as long as they are 

providing wood to C&D processors that 

meet the requirements of 40 CFR 

241.4(a)(5). Similarly, in cases where 

C&D wood is processed by more than 

one processing facility, the certification 

requirements should only apply to the 

final processing facility. 

Response: The Agency agrees that the 

written certification requirement should 

only apply to the final processor, as is 

the case for only the final processors to 

use trained operators. The processors 

conducting the final processing steps 

are responsible for the quality of the 

final product fuel and for ensuring that 

processing has transformed the 

processed C&D wood into a non-waste 

product fuel according to best 

management practices under 40 CFR 

241.4(a)(5). Thus, any processor who 

pre-sorts in preparation for further 

processing at another facility would not 

need to provide a written certification to 

the combustor. However, the materials 

at the intermediate processor facilities 

would still be solid wastes. 

e. Cement Kilns Using Processed C&D 

Wood 

A trade organization, Portland Cement 

Association (PCA), submitted comments 

and information related to how cement 

kilns use C&D wood. Their comments 

are unique in that they base their 

responses to the proposal on the 

operation and capabilities of cement 

kilns instead of the criteria that must be 

met for listing an NHSM as a categorical 

non-waste. For example, instead of 

presenting information on whether the 

conditions of the categorical listing are 

appropriate, PCA comments that cement 

kilns have continually shown through 

decades of testing that the inherent 

manufacturing process design is 

conducive to fully utilizing the energy 

value in the alternative fuel, as the 

process is based on the high-efficiency 

combustion in the kiln. Alternative fuels 

that are useable in the cement industry 

may also contain other raw material 

constituents, which increase the 

effectiveness of being able to use a 

wider range of heating values that may 

not be useable in other combustion 

processes. Specific comments from the 

trade organization are discussed below 

followed by Agency responses. 

Comment: Cement kilns, in particular, 

are capable of handling a wide variety 

of fuels without the need for the 

extensive processing that some other 

types of combustion facilities require. 

Processing of C&D wood need only be 

to the extent necessary to meet the 

requirements of the receiving 

combustion unit. PCA accepts that 

removing certain material is necessary 

to render the non-waste fuel 

‘‘legitimate,’’ but for cement kilns 

several of the listed items, such as 


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68See Table 1 attached to PCA’s comments on the 

proposed rule, Docket ID: EPA–HQ–RCRA–2013– 

0110–0081. 

69For a discussion of ‘‘small acceptable range’’ 

with regard to contaminant comparisons, see 76 FR 

15523–24, (March 21, 2011). 

plastics and paper, are beneficially used 

in the process. Therefore, it is not 

necessary to remove all listed materials 

due to the unique and inherent 

characteristics of the cement production 

process. Defining which materials must 

be removed and the extent to which 

they need to be removed should be a 

function of the unit receiving and 

combusting the processed fuels. 

Response: The Agency disagrees with 

this comment. Although cement kilns 

can burn a wide variety of materials as 

fuel regardless of Btu value and 

contaminants present, it also lends 

support for regulating such cement kilns 

under the CAA section 129 standards so 

that they can appropriately control 

emissions from these waste-like fuels. 

This is not an argument for rendering 

the materials to be product fuels. Rather, 

when evaluating whether an NHSM can 

be a legitimate product fuel, discard 

(i.e., if the material has been discarded 

in the first instance, then it must be 

sufficiently processed) and the 

legitimacy criteria are the determinants, 

not the capabilities of the unit burning 

the NHSM. 

This final rule applies to cement 

kilns, as well as all other facilities that 

wish to burn processed C&D wood for 

reasons discussed in the rule. Thus, 

cement kilns that wish to take advantage 

of the categorical non-waste listing for 

C&D wood under 40 CFR 241.4(a)(5), 

must meet all of the conditions in the 

rule regardless of the unit’s capabilities. 

Cement kilns may also proceed on a 

case-by-case basis, but would need to 

determine whether the processed C&D 

wood has been sufficiently processed 

per 40 CFR 241.2 and whether the 

legitimacy criteria have been met per 40 

CFR 241.3(d). 

Comment: With respect specifically to 

lead in C&D wastes, PCA encourages the 

EPA to establish processing criteria (inlieu of the case-by-case legitimacy test) 

that allow lead to be present at levels 

that are comparable to the traditional 

fuels for the receiving combustion unit. 

There is variation in the capabilities and 

other environmental restrictions of 

facilities using C&D categorical nonwaste fuel, and cement kilns in 

particular have the ability to use a wider 

variety of fuels. Also, when metals 

contaminants are grouped, the lead 

levels indicated in the variety of C&D in 

the proposed rule are not significantly 

higher than traditional fuel groupings. 

See (attached) Table 1 of EPA–HQ– 

RCRA–2013–0110–0081.68 As a 

demonstration of the balancing factors 

specific to cement kilns, there is a 

significant body of data and knowledge 

on the fate of metals in a cement kiln 

system that documents the fate of semivolatile metals (SVM) and low volatile 

metals (LVM) that enter the kiln system 

through minor concentrations in the raw 

feed and fuels. The LVMs and other 

pollutants with similar properties are 

directly incorporated into the clinker 

being produced. 

Response: Again, when evaluating 

whether an NHSM can be a legitimate 

product fuel, it is discard and the 

legitimacy criteria that are the 

determinants, not the capabilities of the 

unit burning the NHSM. In this 

categorical listing, the pertinent 

criterion is whether the lead 

concentration, or any other contaminant 

concentration, in processed C&D wood 

is comparable to or lower than the 

contaminant concentrations in clean 

wood and biomass. The fact that cement 

kilns can burn contaminated, low value 

fuel does not automatically qualify them 

for this categorical non-waste listing. 

PCA did provide contaminant data for 

solid traditional fuels that are used by 

cement kilns, by grouping coke, coal, 

clean wood, and biomass together and 

then compared contaminant 

concentrations to processed C&D wood. 

The grouped data show that even when 

metals are grouped based upon their 

behavior in a cement kiln, the SVM 

group, which includes lead, still has a 

higher concentration in processed C&D 

wood than in the solid traditional fuel 

SVM group. The same is also true for 

the volatile organic compound group. 

Although the concentrations presented 

may be considered to be within a small 

acceptable range,69 it is evidence that 

contaminants are not comparable even 

when grouped, and therefore processing 

according to best management practices 

must occur to exclude or remove 

specific contaminants (i.e., lead) so that 

the concentrations in processed C&D 

wood would be comparable to solid 

traditional fuels, assuming that this was 

the appropriate traditional fuel 

comparison for this listing. All C&D 

processors must, however, conduct 

processing according to the best 

management practices to ensure a 

legitimate product fuel is consistently 

produced, regardless of the type of 

combustion unit that will burn the 

processed C&D wood. 

Comment: Removal of utility poles 

from the C&D fuel stream is not 

necessary for cement kilns when 

considering balancing factors, and 

especially an organic constituent 

grouping comparison. Cement kilns are 

designed and operated to effectively use 

a variety of fuel streams under wellcontrolled conditions and the APCD 

temperature control used in kiln 

operations ensures that dioxin (the 

contaminant of concern which can be 

generated during combustion of 

pentachlorophenol) emissions are 

controlled. 

Response: The Agency disagrees with 

this comment for the reasons discussed 

in previous responses. It is a basis for 

saying that the cement kilns burning 

this material or other contaminated 

materials as fuel(s) should have permits 

under section 129 of the CAA so that 

they can appropriately control 

emissions under the CISWI standards. 

This is not an argument for rendering 

the materials to be product fuels. Again, 

the information provided to illustrate 

that cement kilns are highly-efficient 

combustors and that the resulting 

contaminants are either completely 

combusted, chemically incorporated 

into the clinker being produced, or 

captured in the kiln system air pollution 

control device are not relevant 

considerations for this categorical nonwaste listing. In order to comply with 

this categorical listing, all C&D 

processors must conduct processing 

according to the best management 

practices to ensure a legitimate product 

fuel is consistently produced, regardless 

of the type of combustion unit that will 

burn the processed C&D wood. 

B. Paper Recycling Residuals Used as 

Fuel at Paper Recycling Mills 

The April 14, 2014 proposed rule 

described paper recycling residuals 

(PRRs) in detail (79 FR 21010–17), 

explained the status of PRRs under 

current rules, discussed comments 

received during previous proceedings, 

as well as the scope of the proposed 

non-waste listing (79 FR 21017–18). The 

proposed rationale for the listing is 

found in the proposal at 79 FR 21018– 

20 and is summarized and incorporated 

into this final rule, along with all 

sources referenced in that discussion 

and cited therein. The final decision in 

this rule is based on the information in 

the proposal and supporting materials 

in the rulemaking record. Any changes 

made to the final rule are based on the 

rationale, as described below. 

1. Detailed Description of Paper 

Recycling Residuals 

PRRs are recovered from the paper 

recycling manufacturing process at 

paper recycling mills. The feedstock 

used in paper recycling manufacturing 

process is post-consumer paper, such as 


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Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 6713 

70See Attachment 4, page 1, footnote 2 of 

AF&PA’s Comments to Docket: EPA–HQ–RCRA– 

2008–0329–0871. 

71Because the incoming feedstock may contain a 

number of other materials, including metals, metals 

may also be recovered and sent for recycling. 

72 Generation, Management, and Processing of 

Paper Processing Residuals. Industrial Economics 

Corporation, October 26, 2012. This is posted 

within the docket for the final rulemaking (Docket: 

EPA–HQ–RCRA–2013–0110). 

73 Generation, Management, and Processing of 

Paper Processing Residuals. Industrial Economics 

Corporation, October 26, 2012. This is posted 

within the docket for the final rulemaking (Docket: 

EPA–HQ–RCRA–2013–0110). 

74A cogeneration plant is one that generates 

electricity and useful heat (instead of releasing it 

into the environment via cooling towers, for 

example) for heating purposes either on-site or for 

use nearby. 

75National Council for Air and Stream 

Improvement, Inc. Technical Bulletin (TB) No. 806, 

‘‘Beneficial Use of Secondary Fiber Rejects,’’ pp. 

10–11. See attachment to AF&PA Comments to 

Docket, August 3, 2010 (docket document ID 

number: EPA–HQ–RCRA–2008–0329–0871). 

76Another term industry often uses when 

referring to OCC rejects is ‘‘recycling process 

residuals’’ which was identified in the March 21, 

2011 final rule (76 FR 15486). 

magazines, newspaper, office paper, and 

old corrugated containers obtained 

through various commercial and 

residential recycling programs or 

purchased from retail establishments.70

Some paper recycling mills’ feedstock is 

limited solely to old corrugated 

containers. The primary purpose of the 

paper recycling manufacturing process 

is to generate recovered fibers used to 

make new paper and paperboard 

products. The process also generates 

PRRs that are secondary materials not 

suitable for making new paper products, 

but are landfilled, sent for metals 

recycling, or used as a fuel.71

This final rule addresses only the PRR 

material that may be used as a nonwaste fuel and be burned under CAA 

section 112. These PRRs consist of wet 

strength short fibers that are not suitable 

to be recycled into paper products but 

are essentially the same as the bark, 

biomass and/or coal that are burned, or 

may be burned, by paper recycling 

mills. The short fiber material is 

combusted as a product because it is not 

discarded by the paper recycling mills 

and meets the legitimacy criteria, i.e., 

the material is handled as a valuable 

commodity (whether used on-site or 

shipped off-site to other paper recycling 

mills); the material has meaningful 

heating value; and the material contains 

contaminants that are comparable to or 

lower than the traditional fuels the units 

were designed to burn. 

In addition to the wet strength short 

fibers that are recovered from the paper 

recycling process and used as fuel, fine 

screens remove other non-fiber 

packaging material that cannot be used 

for making paper products, including 

polystyrene foam, polyethylene film, 

other plastics, waxes and adhesives, 

dyes and ink, clays, starches, and other 

filler and coating additives (generally 

associated with corrugated paper 

products). Small amounts of these nonfiber materials may remain in the 

product fuel even though the fuel still 

contains contaminants comparable to 

the fuel burned by the recycling plants. 

To ensure that excess contaminants 

are removed and that the material meets 

the legitimacy criteria when combusted, 

the EPA is issuing a final rule that 

provides that the material covered by 

the categorical listing consists primarily 

of wet strength short fibers that contain 

only small amounts of non-fiber 

materials including polystyrene foam, 

polyethylene film, other plastics, waxes, 

dyes and inks, clays, starches, and other 

filler and coating additives. PRRs that 

are not composed primarily of 

unsuitable wood fibers and contain 

more than small amounts of these nonfiber materials would be considered 

waste fuels and would not be eligible for 

this categorical listing. Thus, not all 

residuals may be properly burned as a 

product fuel. 

Paper recycling mills generate 

between 450,000 and 600,000 tons of 

PRRs per year. Approximately 30 

percent of the PRRs (135,000 to 180,000 

tons) generated are burned for their fuel 

value at 15 to 20 different paper 

recycling mills.72 Although there are 

over 100 paper recycling mills across 

the U.S., the majority of mills’ boilers 

use natural gas and cannot burn solid 

fuels. As a result, PRRs generated in 

their processes generally are landfilled. 

At any particular paper recycling mill 

capable of burning PRRs (i.e., their 

boilers burn solid fuel), between 55 to 

100 percent of the PRRs generated onsite are burned and may represent 

between 20 to 25 percent of the total 

solid fuel burned in their solid fuel 

boilers. Of the 30 percent of PRRs 

burned as fuel, no more than 5 percent 

is burned off-site.73 For the PRRs burned 

off-site, the proposal stated that in two 

cases they have been used to 

supplement other fuels burned at a 

commercial cogeneration plant 74 and a 

commercial biomass gasification 

plant.75 However, the information 

regarding off-site use is based on only 

these two cases and the Agency lacks 

sufficient detail to determine that PRRs, 

when sent off-site for energy recovery, 

other than to those paper recycling mills 

within the industry that burn solid fuels 

(as discussed below), continue to meet 

the legitimacy criteria and are not 

discarded. 

The Agency previously understood 

PRRs to be a term industry commonly 

used to refer to Old Corrugated 

Container (OCC) rejects.76 Since 

publication of the March 21, 2011 

NHSM final rule and the December 23, 

2011 proposal, however, the Agency has 

received comments more appropriately 

identifying OCC rejects as a subset of 

the PRR universe. Specifically, the term 

‘‘OCC rejects’’ refers to only one grade 

of recovered fiber, whereas PRRs used 

as fuel encompass residuals from all 

types of fiber grades. Therefore, in the 

proposal as well as in the final rule, the 

Agency is including OCC rejects within 

the broader PRR universe in a 

categorical non-waste determination. 

In the final regulation, the EPA has 

determined that not all types of PRRs 

may be burned as a non-waste (product) 

fuel, as further explained below. The 

PRRs that are eligible to be burned as 

product fuels are limited to the wet 

strength short wood fibers that are 

essentially the same as the wood and 

biomass products burned by the paper 

recycling industry and contain only 

small amounts of certain non-wood 

fibers. Thus, based on the rulemaking 

record, this final rule represents a 

further refinement of PRRs that may be 

burned as a product fuel. 

2. PRRs Under Previous NHSM Rules 

a. March 21, 2011 NHSM Final Rule 

In the March 21, 2011 NHSM final 

rule, the EPA stated that OCC rejects are 

not discarded when used within the 

control of the generator, such as at pulp 

and paper mills, since these NHSMs are 

part of the industrial process. In 

addition, we stated that the data 

submitted during the comment period 

would seem to suggest that these 

materials would or could meet the 

legitimacy criteria. For example, the 

data stated that the contaminant levels 

in these materials are comparable to, if 

not less than, those in traditional fuels 

used at pulp and paper mills. With 

respect to the meaningful heating value 

criterion, we noted that, although the 

Btu value of OCC rejects, as fired, is 

lower than 5,000 Btu/lb, it can still meet 

this criterion if it can be demonstrated 

that the combustion unit can costeffectively recover energy from these 

materials. Last, the information 

submitted also demonstrated that OCC 

rejects are managed as a valuable 

commodity as they are managed in the 

same manner as the analogous fuel— 

bark (76 FR 15456–7, March 21, 2011). 

Therefore, the Agency generally 

concluded that OCC rejects burned as a 

fuel within the control of the generator 


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6714 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

77 Generation, Management, and Processing of 

Paper Processing Residuals. Industrial Economics 

Corporation, October 26, 2012. 

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

79Secondary materials are materials that are not 

the primary product of a manufacturing or 

commercial process, and can include postconsumer material, off-specification commercial 

chemical products or manufacturing chemical 

intermediates, post-industrial material and scrap. 

are not discarded and not solid wastes. 

The EPA has determined for this final 

rule, as discussed further below, that 

these legitimacy criteria are indeed met 

for OCC rejects and are also met for 

certain other types of PRRs and, under 

the conditions of the final rule, these 

PRRs (including OCC rejects) can be 

burned under Clean Air Act section 112. 

b. February 2013 NHSM Final Rule 

Under the February 2013 final rule, 

we stated that PRRs (which include 

OCC rejects) are not discarded when 

burned under the control of the 

generator. Also, after publication of the 

March 21, 2011 final rule and during 

finalization of the February 7, 2013 final 

rule, we received additional information 

regarding the cost effectiveness of PRRs 

used as a fuel, including the amount of 

PRRs replacing traditional fuels at paper 

recycling mills and percentages of 

residuals generated that are combusted 

as a fuel.77 Based upon the information 

received at that time, we stated that the 

information supported the categorical 

listing of PRRs as a non-waste fuel 

burned on-site. For PRRs transferred offsite for use as a fuel, we requested 

information regarding how and where 

they are burned and whether they are 

managed as a valuable commodity. We 

also stated that if the information 

submitted supports off-site use as a fuel, 

the Agency may include those PRRs in 

a subsequent rulemaking.78

3. Scope of the Proposed Rule and Final 

Categorical Non-Waste Listing for 

Certain PRRs 

In the April 14, 2014 proposed rule 

(79 FR 21005), the Agency proposed to 

categorically list PRRs, including OCC 

rejects, as a non-waste fuel for those 

paper recycling mills whose on-site 

boilers are designed to burn solid fuels. 

As stated in the proposal, PRRs 

generated during the paper recycling 

manufacturing process vary in 

composition. However PRRs used as 

fuel are composed primarily of the wet 

strength and short wood fibers that 

cannot be used to make new paper and 

paperboard products. Although PRRs 

are generated at more than 100 paper 

recycling mills, only between 15 and 20 

mills can burn those materials as fuel 

because their boilers are designed to 

burn solid fuel. The majority of paper 

recycling mills cannot burn solid fuels 

because their boilers are designed to 

burn natural gas, and thus, usually send 

their PRRs to landfills. Data and 

information submitted to the Agency by 

industry demonstrated that PRRs are not 

discarded when used as a fuel on-site 

within the control of the generator. 

Further, the data and information 

indicated that all three legitimacy 

criteria are met. 

This final rule adopts the listing of 

PRRs, including OCC rejects as 

categorical non-wastes, but makes 

several changes to the definition under 

40 CFR 241.2 and the listing of PRRs 

under 40 CFR 241.4 to clarify that not 

all residuals are to be burned as a 

product fuel. Based on the rulemaking 

record, the final rule represents a further 

refinement of PRRs that may be burned 

as a non-waste product fuel and not are 

not discarded. 

Specifically, the proposed rule 

definition had stated ‘‘Paper recycling 

residuals means the co-product material 

generated from the paper recycling 

process and is composed primarily of 

wet strength and short wood fibers that 

cannot be used to make new paper and 

paperboard products. The term paper 

processing residuals also includes fibers 

from old corrugated container rejects.’’ 

The definition of PRRs is revised in 

the final rule to limit the listing to those 

PRRs composed of wet strength, short 

wood fibers, with only small amounts of 

non-fiber materials remaining. The 

definition also clarifies that PRRs are 

more appropriately defined as 

secondary materials 79 rather than coproducts, generated from the recycling 

of paper, paperboard and corrugated 

containers. 

Use of the term co-products could 

infer that PRRs constitute a product fuel 

that has undergone processing through 

the paper recycling manufacturing 

process. Rather, the paper recycling 

manufacturing process generates wood 

fibers that are used to make new paper 

and paperboard products. PRRs are a 

secondary material or ‘‘byproduct’’ of 

that manufacturing process and are not 

discarded when used as a fuel within 

control of the generator or sent off-site 

to other paper recycling mills within the 

industry. Essentially, the PRRs are wood 

fibers used to make paper but, due to 

their inferior quality (fiber size), cannot 

be used in the paper making process. 

However, they may be combusted as a 

fuel. 

The final categorical definition thus 

states: ‘‘Paper recycling residuals means 

the secondary material generated from 

the recycling of paper, paperboard and 

corrugated containers, composed 

primarily of wet strength and short 

wood fibers that cannot be used to make 

new paper and paperboard products. 

Paper recycling residuals that contain 

more than small amounts of non-fiber 

materials including polystyrene foam, 

polyethylene film, other plastics, waxes 

and adhesives, dyes and inks, clays, 

starches and other coating and filler 

material are not paper recycling 

residuals for purposes of this 

definition.’’ 

Revisions are also made to the 

language for the categorical listing of 

PRRs under 40 CFR 241.4: Non-waste 

Determinations for Specific NonHazardous Secondary Materials When 

Used as a Fuel. The proposed 40 CFR 

241.4(a)(6) had stated ‘‘Paper recycling 

residuals, including old corrugated 

cardboard rejects, generated from the 

recycling of recovered paper and 

paperboard products and burned on-site 

by paper recycling mills whose boilers 

are designed to burn solid fuel.’’ As 

discussed in the detail in section V.B.4 

of this preamble, PRRs with lower 

heating values would not be considered 

discarded since recycling mills’ boilers 

can cost effectively recover energy from 

fuels because of the boiler design itself. 

The term, ‘‘on-site,’’ is deleted to clarify 

that PRRs can be combusted at any 

paper recycling mill with boilers 

designed to burn solid fuel, whether onsite at the generating mill, or transferred 

to another off-site paper recycling mill. 

Finally, the language ‘‘ . . . including 

old corrugated cardboard rejects 

generated from the recycling of 

recovered paper, and paperboard 

products’’ is revised to parallel the 

definition of PRRs discussed above. 

Thus, the final categorical rule listing 

states: Paper recycling residuals 

generated from the recycling of 

recovered paper, paperboard and 

corrugated containers and combusted by 

paper recycling mills whose boilers are 

designed to burn solid fuel. 

The rationale for this final rule is 

discussed in sections V.B 4 and 5 of this 

preamble. 

4. Rationale for Final Rule 

This section discusses the reasoning 

provided in the proposed rule and the 

reasons for the EPA’s final 

determinations for the categorical listing 

of PRRs. EPA adopts the reasoning in 

the proposed rule and further explains 

it in this preamble. Further explanations 

for the Agency’s decision are provided 

in the Response to Comments below. 

The proposal, this section, and the 

Response to Comments all constitute the 

Agency’s final determination supporting 

this rule. 


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Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 6715 

80AF&PA Technical Bulletin, Attachment 4, 

Recycling Process Residuals, p 2. September 10, 

2009. 

a. Discard 

When deciding whether an NHSM 

should be listed as a categorical nonwaste fuel in accordance with 40 CFR 

241.4(b)(5), the EPA first evaluates 

whether or not the NHSM has been 

discarded in the first instance and, if not 

so discarded, whether or not the 

material could be considered discarded 

because it is not legitimately used as a 

product fuel in a combustion unit. 

Based on the rulemaking record, as 

discussed below, the Agency has 

determined that PRRs used as a fuel are 

secondary materials recovered from the 

paper recycling manufacturing process 

and are not discarded when burned 

within control of the generator or sent 

off-site to other paper recycling mills 

within the industry. 

i. Generation of PRRs in the Paper 

Recycling Manufacturing Process 

The paper recycling process is 

grouped generally into three steps for 

purposes of identifying where residuals 

are generated. In the first step, bales of 

the incoming post-consumer paper enter 

a pulper where the paper and fiber are 

wetted and dispersed. A ‘‘debris rope’’ 

or ‘‘ragger’’ continuously withdraws 

strings, wires, and rags that could 

otherwise damage the processing 

equipment. Recovered metals may be 

sold to metals recovery facilities, but 

other materials removed by the ragger 

are landfilled because they produce a 

heterogeneous mixture. 

In the second step, materials that 

remain in the pulper can either pass to 

a junk tower for removal of heavy 

materials and continue to a drum screen 

for removal of lighter materials; or go 

directly to coarse screens. For those 

materials that go to the coarse screens, 

the resulting rejects may pass through 

an air separator and/or a high efficiency 

cyclone, which further removes 

materials based on size, shape and 

density, such as plastic and unsuitable 

paper fibers (i.e., wet strength and short 

wood fibers), which make-up the largest 

portion of PRRs that would eventually 

be used as a fuel. These PRRs may be 

consolidated with those generated from 

the junk tower and drum screen, and 

sent across a dewatering screen or a 

screw or ram press to improve both ease 

of handling and heating value. 

In the final step, a series of fine 

screens remove any remaining material 

that cannot be used to make paper or 

paperboard products. These rejected 

materials include unusable paper fiber 

fines, clays, starches, waxes and 

adhesives, other plastics, filler and 

coating additives, and dyes and inks. 

During this step, reject materials may 

either pass along to the wastewater 

treatment system or become part of the 

PRR stream and be used as a fuel. For 

example, for some grades of reject 

materials that are dispersed and small, 

such as dyes and inks, waxes, and 

coating adhesives generated from 

recovered magazines and other papers, 

these materials will not be removed by 

fine screens and therefore, enter the 

wastewater treatment system. In 

contrast, for other grades, these light 

reject materials are captured in fine 

screens and can be used as a fuel.80

These PRRs would then be consolidated 

with the PRRs generated in the 

preceding step before being conveyed to 

the combustion source where they are 

blended with traditional fuels and fed to 

the combustor. 

Thus, PRRs are generated at various 

steps of the paper recycling process, 

with the second step producing the bulk 

of PRRs (i.e., unsuitable fibers) destined 

for use as a fuel. Other non-fiber reject 

material (i.e., clays, starches, waxes and 

adhesives, other plastics, filler and 

coating additives, and dyes and inks) 

contained in the PRRs would be 

considered to have a lower heating 

value than the unsuitable fibers (see 

meaningful heating value discussion 

section V.B.4.b. of this preamble). All 

that is generally required for use of 

PRRs as a fuel after screening of nonfiber material that cannot be used to 

make paper or paperboard products is 

removal of moisture to increase the Btu 

value. Removal of moisture can range 

from simply allowing PRRs to drain 

freely (e.g., for coarse and heavy PRRs) 

to sending them through a press (e.g., 

for smaller and compressible PRRs). 

In determining whether PRRs used as 

a fuel are more product-like than wastelike, we considered the following 

attributes: 

• PRRs are generated as a secondary 

material from the paper recycling 

process that makes new paper and 

paperboard products and consist 

primarily of unsuitable wood fibers that 

are never discarded within that paper 

making process. 

• When these PRRs are combusted in 

mill boilers that burn solid fuel, they 

recover meaningful heating value; 

• Paper recycling mills that can 

combust PRRs burn a significant amount 

of what they generate on-site: 55 

percent–100 percent. 

• PRRs are used to replace traditional 

fuels by as much as 25 percent. 

Accordingly, the wet strength short fiber 

PRRs, when generated at the recycling 

facility, are more product-like than 

waste-like. 

ii. Off-Site Combustion of PRRs as Fuel 

As discussed in section V.B.5. of this 

preamble below, the Agency lacked 

sufficient information to determine that, 

after the recycling process described 

above, PRRs sent off-site for energy 

recovery to facilities outside the paper 

recycling industry are not discarded. 

The Agency stated in the proposal that 

it was requesting additional information 

for PRRs that are burned off-site which 

demonstrates how they: (1) Are 

managed as a valuable commodity (from 

point of generation at the paper 

recycling mill to insertion at the off-site 

combustor, to show that discard is not 

occurring); (2) have a meaningful 

heating value; (3) contain contaminants 

at levels comparable to or lower than 

those in traditional fuel(s) which the 

combustor is designed to burn; and (4) 

the types of facilities that combust these 

PRRs. The agency received general 

statements that PRRs are an important 

part of paper mills’ fuel mix and that 

third party sellers and purchasers 

classify PRRs as fuel. These general 

statements did not provide the detailed 

information the EPA needed to make a 

reasoned determination that PRRs sent 

off-site to entities outside of the paper 

recycling industry for combustion 

constituted discard or product fuel use. 

Combustion of PRRs off-site and 

within the paper recycling industry, 

however, is different. For these facilities 

the Agency examined the data in the 

record from previous rulemakings as 

well as comments received on the 

proposal. The Agency has determined 

that the listing includes PRRs generated 

by paper recycling mills that transfer 

that material off-site for combustion at 

the estimated 15–20 paper recycling 

mills that have the solid fuel boilers 

capability of burning PRRs for energy 

recovery. 

Regarding off-site use, the EPA has 

discussed in previous NHSM 

rulemakings that transferring secondary 

materials between companies or 

facilities does not necessarily mean that 

the material has been discarded (see 76 

FR 15500, March 21, 2011). The PRRs 

transferred off-site to other paper 

recycling facilities with the capability to 

combust these fuels are utilized in the 

same manner as self-generated paper 

recycling residuals, such that they are 

legitimately burned in solid fuel boilers 

that are designed to burn wet fuels (see 

V.B.4.b. of this preamble for a 

discussion of legitimacy criteria for offsite combustion), with mills optimizing 

their operation around boiler design. 


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6716 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

81American Forest and Paper Association phone 

communication to EPA, November 11, 2014 

included in the docket to the final rule. 

82See AF&PA Comments, p 62, to Docket 

document ID: EPA–HQ–RCRA–2008–0329–0871. 

83See ‘‘AF&PA–AWC Responses to EPA’s 

Questions on PRR and Railroad Ties (May 2013).’’ 

84 December 2011 boiler database—Boiler 

Reconsideration Proposal Databases: Emissions 

Database for Boilers and Process Heaters Containing 

Stack Test, CEM, & Fuel Analysis Data Reported 

under ICR No. 2286.01 & ICR No. 2286.03 (version 

7); http://epa.gov/ttn/atw/boiler/boilerpg.html. Data 

presented is for paper manufacturing facilities with 

NAICS code #322 and where fuel type indicates it 

refers to the repulped paper fibers that are used as 

fuels and include: ‘‘dewatered combustible 

residues,’’ ‘‘hydro pulper refuse,’’ ‘‘OCC rejects,’’ 

‘‘recycle fiber lightweight rejects,’’ and ‘‘recycled 

fiber.’’ 

85 In determining compliance with this legitimacy 

criterion (i.e., average value of 3,700 Btu/lb) the 

Agency anticipates, for PRRs generated on-site, that 

boiler operators will use generator knowledge in 

combination with testing on an as needed basis, to 

determine Btu value of the PRRs to be burned. For 

PRRs sent off-site to another paper recycling mill 

boiler, the receiving boiler also may rely on 

generator knowledge and testing, but may need to 

test more frequently based on the consistency of the 

PRRs composition from each of the generating 

mills. 

Thus, we have determined that such offsite use does not constitute discard. 

b. Legitimacy Criteria 

In determining whether to list PRRs as 

a categorical non-waste fuel in 40 CFR 

241.4(a), the Agency evaluated the 

legitimacy criteria in 40 CFR 

241.3(d)(1)—that is, whether it is 

managed as a valuable commodity, 

whether it has a meaningful heating 

value and is used as a fuel in a 

combustion unit to recover energy, and 

whether contaminants or groups of 

contaminants are at levels comparable 

to or less than those in the traditional 

fuel the unit is designed to burn. 

Materials not meeting these criteria are 

considered discarded and thus a solid 

waste. 

i. Managed as a Valuable Commodity 

Regarding the first legitimacy 

criterion, PRRs that are utilized as a fuel 

are managed similarly to traditional 

fuels that are burned at paper recycling 

mills such as hogged wood, other clean 

biomass, or coal. PRRs are also managed 

as a valuable commodity when they are 

utilized off-site as a fuel within the 

paper recycling industry. Some paper 

recycling mills store PRRs in containers 

(i.e., from the container, PRRs can be fed 

directly to the boiler) or convey them to 

a storage pile of traditional solid fuels 

where they are comingled prior to 

burning. Other paper recycling mills 

convey PRRs directly to the fuel feed 

systems. This demonstrates that PRRs 

are handled promptly and are managed 

as a valuable commodity, such that, 

after generation on-site, they are fed 

directly to the boiler, or, when not used 

immediately, they are managed in 

containers and storage piles along with 

traditional fuels used on site. 

For PRRs utilized as a fuel at off-site 

paper mills, PRRs are managed similarly 

to those generated on-site.81 These mills 

store PRRs in containers until sufficient 

quantities are accumulated for transfer 

(generally not more than several weeks). 

Upon arrival at the combustion mill, the 

material is managed as described above 

for on-site generated PRRs. Because 

storage does not exceed reasonable time 

frames, and management is similar to 

that of traditional fuels, the Agency has 

determined that PRRs burned on-site, as 

well as at off-site paper mills, meet this 

legitimacy criterion. To the extent PRRs 

do not meet these general standards for 

being handled as a valuable commodity, 

for example by being allowed to 

accumulate at the combustor or the 

applicable site for unreasonable lengths 

of time not normally done within the 

industry, the categorical listing would 

not apply. 

ii. Meaningful Heating Value and Used 

as Fuel to Recover Energy 

With respect to the second legitimacy 

criterion, PRRs, as fired and generated, 

average 3,700 Btu/lb (or on a dry basis, 

average 9,100 Btu/lb).82 Although this is 

lower than the general guideline of 

5,000 Btu/lb as fired, the Agency has 

previously stated that a person may 

demonstrate meaningful heating value 

below 5,000 Btu/lb if the energy 

recovery unit can cost effectively 

recover meaningful energy from the 

NHSM (76 FR 15522, March 21, 2011). 

For PRRs, industry has stated that paper 

recycling mills’ boilers can cost 

effectively recover energy at such 

heating values because of the boiler 

design. Specifically, the mills’ solid fuel 

boilers are designed to burn wet fuels, 

with each mill optimizing its operation 

around boiler design. Typical boilers 

used include stoker fired and fluidized 

bed combustion, which often have overfire and/or under-grate air that assists in 

the efficient burning of wetter fuels. 

This allows paper recycling mills to 

burn clean cellulosic biomass fuels, 

such as hog fuel and bark, which is the 

primary fuel, as well as PRRs that have 

varying degrees of moisture content. If 

the material being fed to the boiler is too 

dry, the combustion temperature can 

become too hot, requiring operational 

adjustments. Consistently wet materials 

are handled well in these boilers, 

leading to fewer temperature swings and 

minimized boiler tuning adjustments. 

Industry also stated that PRRs are 

analogous to the primary fuels—hog fuel 

and bark—used in solid fuel boilers at 

paper recycling mills in that they both 

have high moisture content, usually >40 

percent, and can have Btu values below 

5,000 Btu/lb, as fired. However, PRRs 

can also have Btu values higher than 

5,000 Btu/lb, depending upon the 

amount of moisture that has been 

removed (i.e., whether simply draining 

freely versus pressed), amount of solids, 

fiber content, presence of non-fiber 

packing materials, and combustion 

conditions necessary for the effective 

operation of the boilers.83

The EPA finds that the data in the 

record and the description of the 

combustion process of the particular 

combustors used in the paper recycling 

industry confirm that paper mill boilers 

cost-effectively recover energy from 

PRRs used as fuel. These solid fuel 

boilers are designed to burn wet fuels, 

and have over-fire and/or under-grate 

air that assists in the efficient burning of 

wetter fuels. These design 

characteristics allow the boilers to burn 

PRRs (as well as cellulosic biomass 

fuels) that have high moisture content. 

The meaningful heating values for 

PRRs generated at off-site paper 

recycling mills are consistent with PRRs 

generated on-site.84 Therefore, based on 

all of the available information, 

including the fact that PRRs are 

primarily wood fibers, the Agency has 

determined that PRRs with heating 

values averaging 3,700 Btu/lb (or on a 

dry basis, averaging 9,100 Btu/lb), 

whether generated on-site or combusted 

at off-site paper recycling mills that 

burn solid fuel, meet the meaningful 

heating value legitimacy criterion and 

are burned as a product fuel. PRRs that 

average less than 3,700 Btu/lb (9,100 

Btu/lb dry basis) would not have 

meaningful heating value for purposes 

of this categorical listing, thus the 

listing would not apply to those 

materials.85

See also section V.B.6.a.i. for a 

discussion of data on facilities 

combusting PRRs greater than 3, 700 

Btu/lb, and options for facilities 

combusting PRRs that are less than that 

Btu/lb level. 

iii. Contaminants Comparable to or 

Lower Than Traditional Fuels 

For the third legitimacy criterion, a 

contaminant comparison was conducted 

to capture data that is representative of 

all PRR fuel types within the EPA’s 

Boiler MACT Database. The 

contaminant data include PRRs 


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Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 6717 

86 In response to the ANPRM, commenters 

submitted data for OCC rejects, which show that 

OCC rejects meet the contaminant criterion. 87National Council for Air and Stream 

Improvement, Inc. Technical Bulletin (TB) No. 806, 

‘‘Beneficial Use of Secondary Fiber Rejects,’’ 

Appendix B, Table B1. TCLP Analysis of OCC 

Rejects. See attachment to AF&PA Comments to 

Docket, August 3, 2010 (document ID number; 

EPA–HQ–RCRA–2008–0329–0871). 

88Section 1.2 of Method 1311 (Toxicity 

Characteristic Leaching Procedure) allows for a total 

constituent analysis in lieu of a TCLP analysis. That 

is, the Agency allows calculating a solid phase’s 

maximum theoretical concentration expected in a 

TCLP extract by dividing a sample’s total 

constituent concentration by 20, representing 20:1 

liquid-to-solid ratio (by weight) employed in the 

TCLP procedure. See http://www.epa.gov/osw/

hazard/testmethods/faq/faq_tclp.htm. While 

leaching extract concentrations do not reflect total 

constituent concentrations, multiplying the extract 

concentration (0.004 ppm) by 20 provides the 

minimum total concentration in the waste. 

However, because toluene is somewhat soluble in 

water (515 mg/L at 20° C), the leaching extract 

concentration multiplied by 20, is for this 

constituent, a reasonable approximation of the total 

toluene concentration. Water solubility data can be 

found at: http://www.epa.gov/chemfact/s_

toluen.txt. 

89Concentrations in Traditional Fuels: Tables for 

Comparison, November 29, 2011, available at 

www.epa.gov/epawaste/nonhaz/define/index.htm 

and in the docket (EPA–HQ–RCRA–2008–0329). 

combusted both on-site and offsite.86

See Table 2 of this preamble. 

TABLE 2—COMPARISON OF CONTAMINANTS IN PAPER RECYCLING RESIDUALS (PRRS) AND TRADITIONAL FUELS

Contaminants a Clean wood/biomass Coal b range PRRs c d

Arsenic ..................................................................................................... ND–298 ..................... ND–174 ..................... 0–17.7 

Chromium ................................................................................................ ND–340 ..................... ND–168 ..................... <0.17–26.9 

Lead ......................................................................................................... ND–340 ..................... ND–148 ..................... <0.10–21.1 

Mercury e .................................................................................................. ND–1.1 ...................... ND–3.1 ...................... ND–0.0724 

Chlorine .................................................................................................... ND–5400 ................... ND–9,080 .................. <9.8–7310 

Sulfur ........................................................................................................ ND–8700 ................... 740–61,300 ............... 237–2500 

Antimony .................................................................................................. ND–26 ....................... ND–10 ....................... 0.07–0.9 

Beryllium .................................................................................................. ND–10 ....................... ND–206 ..................... 0.005–0.329 

Cadmium .................................................................................................. ND–17 ....................... ND–19 ....................... 0.03–7.1 

Cobalt ....................................................................................................... ND–213 ..................... ND–30 ....................... 1.05–1.99 

Manganese .............................................................................................. ND–15,800 ................ ND–512 ..................... <0.10–21.1 

Nickel ....................................................................................................... ND–540 ..................... ND–730 ..................... <0.27–25 

Selenium f ................................................................................................. ND–9 ......................... ND–74.3 .................... ND–3.29 

Fluorine g .................................................................................................. ND–300 ..................... ND–178 ..................... <17–<26 

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

b Coal and Biomass data taken from the EPA document Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 

29, 2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm. Refer to document for footnotes and sources of the data. c December 2011 boiler database—Boiler Reconsideration Proposal Databases: Emissions Database for Boilers and Process Heaters Containing Stack Test, CEM, & Fuel Analysis Data Reported under ICR No. 2286.01 & ICR No. 2286.03 (version 7); http://epa.gov/ttn/atw/boiler/

boilerpg.html. Data presented is for paper manufacturing facilities with NAICS code #322 and where fuel type indicates it refers to the repulped 

paper fibers that are used as fuels and include: ‘‘dewatered combustible residues,’’ ‘‘hydro pulper refuse,’’ ‘‘OCC rejects,’’ ‘‘recycle fiber lightweight rejects,’’ and ‘‘recycled fiber.’’ d CAA 112 Hazardous Air Pollutant (HAP) compounds (e.g., benzene, PAHs) data was not collected in this data set. HAP compounds may be 

present. eOther PRR sample results indicate mercury was non-detect at 0.1 ppm; therefore, some samples could have been between the highest recorded value of 0.0724 ppm and the non-detect limit of 0.1 ppm. fOther PRR sample results indicate that selenium was non-detect at 7 ppm; therefore, some samples could have been between the highest recorded value of 3.29 ppm and the non-detect limit of 7 ppm. gFluorine was not detected in any samples; the highest non-detect level is listed. 

As discussed in the proposed rule (79 

FR 21019, April 14, 2014), and adopted 

for the final rule, contaminant 

concentrations of those constituents 

found in Table 2 of this preamble in 

PRRs were compared to the levels found 

in coal and biomass, since both of these 

traditional fuels can be burned in 

boilers at paper recycling mills (see 

discussion below regarding combustion 

of coal). Data show that PRRs, whether 

combusted at on-site or off-site paper 

recycling mills, meet the contaminant 

legitimacy criterion. The only reported 

instance of PRRs containing a 

contaminant at levels approaching the 

highest levels in coal and biomass is a 

chlorine concentration at a mill burning 

OCC rejects. However, the highest 

reported value for chlorine in PRRs was 

7,310 ppm, which is still below the 

highest reported value for chlorine in 

coal (9,080 ppm). Therefore, the 

contaminant concentrations for these 

contaminants are comparable to the 

traditional fuels that the boilers are 

designed to burn. 

With regard to organic HAP present in 

PRRs, although no specific data is 

available on the concentration of these 

contaminants in PRRs, limited data has 

been published on TCLP extracts of 

OCC rejects that include several organic 

HAPs. With the exception of toluene, 

which was found at trace levels ranging 

from <0.001 to 0.004 mg/L, no other 

HAPs were detected in the TCLP 

extracts for OCC rejects.87 For purposes 

of comparability, a total constituent 

analysis for toluene would yield a 

concentration of up to 0.08 mg/L (or 

0.08 ppm), assuming worst case 

conditions, which is well below the 

concentration found in coal at 8.6—56 

ppm.88 89 Likewise, the EPA has no 

reason to find that results would be any 

different from the broader universe of 

PRRs, since the steps that generate 

PRRs, which must process multiple 

grades of recovered fibers, are 

equivalent to or more rigorous than 

those that generate only OCC rejects 

(i.e., where the feedstock is limited to 

OCCs). 

The contaminant data submitted also 

compared PRRs to coal as the traditional 

fuel for comparison. As stated in section 

V.B.1. of this preamble, PRRs may 

represent between 20 to 25 percent of 

the total solid fuel burned in their solid 

fuel boilers, thus, units combusting 

PRRs may also be designed to burn 

other solid fuels such as coal. As shown 

in Table 2 of this preamble, PRR 

concentrations were comparable to 

those in coal as well as clean wood/

biomass. Under the final rule, therefore, 

units that are designed to burn clean 

wood/biomass and are combusting PRRs 

in boilers that recover meaningful 

heating value from those residuals, may 


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6718 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

90 December 2011 boiler database—Boiler 

Reconsideration Proposal Databases: Emissions 

Database for Boilers and Process Heaters Containing 

Stack Test, CEM, & Fuel Analysis Data Reported 

under ICR No. 2286.01 & ICR No. 2286.03 (version 

7); http://epa.gov/ttn/atw/boiler/boilerpg.html. 

91 In the December 23, 2011 final NHSM rule (76 

FR 15487), the agency previously believed these 

facilities to be municipal or commercial 

incinerators. Subsequent comments have identified 

these facilities to be commercial biomass and 

cogeneration plants. 

92National Council for Air and Stream 

Improvement, Inc. Technical Bulletin (TB) No. 806, 

‘‘Beneficial Use of Secondary Fiber Rejects,’’ pp. 

10–11. See attachment to AF&PA Comments to 

Docket, August 3, 2010 (document ID: EPA–HQ– 

RCRA–2008–0329–0871). 

93The Agency had stated that limited information 

indicated that OCC rejects are ‘‘burned in municipal 

or commercial energy facilities (which appear to be 

municipal or commercial incinerators) and thus, 

would clearly indicate discard . . .’’ 76 FR 15487. 

in addition burn coal if the unit is 

designed to burn that solid fuel. 

5. Summary of Comments Requested 

The proposed rule identified several 

issues pertaining to the listing of PRRs 

as categorical non-wastes and requested 

comment on those issues which are 

summarized below. 

Meaningful heating value. Although 

the heating value is less than the general 

benchmark of 5,000 Btu/lb, the Agency 

determined that PRRs meet the 

meaningful heating value criterion since 

paper recycling mills have 

demonstrated that they can cost 

effectively recover energy from those 

materials. The Agency requested 

information regarding the percentages of 

non-fiber materials that typically makeup PRRs; such information would be 

useful in understanding the variability 

of the PRR’s heating value since PRRs 

that contain a larger portion of wood 

fibers could be expected to have a 

higher heating value. Those non-fiber 

materials consist of light reject material 

captured in fine screens remaining after 

the processing steps described in 

section V.B.1. of this preamble and 

consist of polystyrene foam, 

polyethylene film, other plastics, waxes 

and adhesives, dyes and ink, clays, 

starches, and other filler and coating 

additives. 

No information was received from 

industry regarding the percentage of 

these non-fiber materials. Lacking such 

information, the Agency finds that PRRs 

with higher amounts of non-fiber 

materials would have a lower heating 

value. Combustion of more than small 

amounts of these materials with these 

low heating values are discard of those 

materials and burning of a waste fuel. 

The Agency is thus revising the 

definition of PRRs to clarify that the 

categorical non-waste listing applies 

only to PRRs composed primarily of wet 

strength and short wood fibers that do 

not contain more than small amounts of 

polystyrene foam, polyethylene film, 

other plastics, waxes and adhesives, 

dyes and ink, clays, starches, and other 

filler and coating additives. 

Other discarded materials. Although 

the data provided in the boiler database 

regarding the level of contaminants in 

the PRRs indicate that they meet the 

contaminant legitimacy criterion, 

evaluations conducted for the 

development of the boiler database 

suggested that, in a few cases, OCC 

rejects used as feedstock at paper 

recycling mills contain other discarded 

materials. For example, some paper 

recycling mills may accept cardboard 

containers from off-site that have not 

been completely emptied of their 

contents or otherwise are contaminated 

with foreign materials. The Agency was 

interested in receiving information 

regarding how common this practice is, 

the composition of the contents/

materials, any precautions taken to 

ensure that the contents/materials do 

not contribute to unacceptable 

contaminant concentrations, and 

whether any additional conditions 

should be imposed to ensure that such 

cardboard containers have been 

emptied. In other words, any remaining 

contents/materials should only be 

incidental. 

Based on information received, and 

examination of the few cases in the 

boiler database of foreign materials 

present in OCC rejects undergoing 

recycling,90 the Agency concluded that 

such situations are incidental, and no 

specific conditions to ensure the 

containers are empty are warranted, 

other than to describe the incidental 

contamination as part of the categorical 

listing. 

PRRs burned off-site. The Agency 

considered whether to expand the 

categorical listing to include PRRs that 

are burned as a fuel product off-site. 

According to earlier comments 

submitted on previous NHSM 

rulemakings, OCC rejects have been 

used as a supplemental fuel in two 

plants: a commercial biomass 

gasification plant and a commercial 

cogeneration plant (where OCC rejects 

provide 3 to 4 percent of the total fuel 

input at the latter plant).91 An 

intermediary company takes the OCC 

rejects from three mills and processes 

them by removing large pieces of 

plastic, shredding, and drying the 

remaining residuals and delivers the 

OCC reject fuel to the plants.92 Thus, 

contrary to what the Agency previously 

concluded based on the information it 

had at the time of the March 21, 2011 

final rule,93 in these two instances, the 

OCC rejects burned off-site in 

commercial power plants can be 

managed more like a non-waste fuel 

than a waste fuel. 

While the information generally 

indicates that these PRRs are managed 

much the same way as those burned onsite, it is based on only two cases and 

lacks sufficient detail to determine that 

PRRs when sent off-site for energy 

recovery continue to meet the 

legitimacy criteria and are not 

discarded. Therefore, we requested 

additional information for PRRs that are 

burned off-site which demonstrates how 

they: (1) Are managed as a valuable 

commodity (from point of generation at 

the paper recycling mill to insertion at 

the off-site combustor, to clearly show 

that discard is not occurring); (2) have 

a meaningful heating value; (3) contain 

contaminants at levels comparable to or 

lower than those in traditional fuel(s) 

which the combustor is designed to 

burn; and (4) the types of facilities that 

combust these PRRs. 

Commenters did not provide data 

regarding how that material meets other 

legitimacy criteria including 

management of the fuel as a valuable 

commodity and meaningful heating 

value. In particular, the Agency did not 

receive information that facilities 

outside the paper recycling industry 

combusted PRRs in the solid fuel boilers 

designed to burn wet fuels characteristic 

of paper recyclers. The Agency has 

determined that the listing be revised 

from the proposal to include PRRs 

generated by paper recycling mills that 

do not have the capability to combust 

the materials on-site, but are transferred 

off-site for combustion at the estimated 

15–20 paper recycling mills that do 

have the solid fuel boilers capable of 

burning PRRs for energy recovery. The 

PRRs transferred off-site to other paper 

recycling facilities with the capability to 

combust these fuels are utilized in the 

same manner as self-generated paper 

recycling residuals i.e., they are 

legitimately burned for fuel in solid fuel 

boilers that are designed to burn wet 

fuels, with mills optimizing their 

operation around boiler design. Thus, 

we have determined that such use does 

not constitute discard. 

6. Responses to Comments 

a. Specific Request for Comments 

i. Meaningful Heating Value 

Comment: The EPA appropriately 

determined that PRRs have meaningful 

heat value and are burned as a fuel to 

specifically recover energy in solid fuel 

boilers at paper recycling facilities. Mill 

boilers are specifically designed to 

produce heat by combusting materials 


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Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 6719 

94See ‘‘AF&PA–AWC Responses to EPA’s 

Questions on PRR and Railroad Ties (May 2013).’’ 

95 In determining compliance with this legitimacy 

criterion (i.e., average value of 3,700 Btu/lb) the 

Agency anticipates, for PRRs generated on-site, that 

boiler operators will use generator knowledge in 

combination with testing on an as needed basis, to 

determine Btu value of the PRRs to be burned. For 

PRRs sent off-site to another paper recycling mill 

boiler, the receiving boiler also may rely on 

generator knowledge and testing, but may need to 

test more frequently based on the consistency of the 

PRRs composition from each of the generating 

mills. 

96NCASI Technical Bulletin 806 included in 

docket number EPA–HQ_RCRA–0329–0871. 

97Standard specifications for buying and selling 

of materials issued by the Institute of Scrap 

Recycling Industries Inc. 

such as PRRs and use wet fuels to 

regulate temperature. Since virgin 

biomass, as fired, can contain up to 60 

percent moisture and have BTU values 

as low at 3,500 MMBtu/lb, there should 

be no Btu threshold for PRRs. 

Response: The EPA finds that the data 

in the record and the description of the 

combustion process of the particular 

boilers used in the paper recycling 

industry confirms that paper mill 

boilers cost-effectively recover energy 

from PRRs used as fuel, thus meeting 

the meaningful heating value criterion. 

The mills’ solid fuel boilers are 

designed to burn wet fuels, with each 

mill optimizing its operation around 

boiler design. Typical boilers used 

include stoker fired and fluidized bed 

combustors, which often have over-fire 

and/or under-grate air that assists in the 

efficient burning of wetter fuels. If the 

material being fed to the boiler is too 

dry, the combustion temperature can 

become too hot, requiring operational 

adjustments. Consistently wet materials 

are handled well in these boilers, 

leading to fewer temperature swings and 

minimized boiler tuning adjustments. 

PRRs are also analogous to the 

primary fuels—hog fuel and bark—used 

in solid fuel boilers at paper recycling 

mills in that they both have high 

moisture content, usually >40 percent, 

and can have Btu values below 5,000 

Btu/lb, as fired. However, PRRs can also 

have Btu values higher than 5,000 Btu/ 

lb, depending upon the amount of 

moisture that has been removed (i.e., 

whether simply draining freely versus 

pressed), amount of solids, fiber 

content, presence of non-fiber packing 

materials, and combustion conditions 

necessary for the effective operation of 

the boilers.94

To further understand the variability 

of the PRR’s heating value, the Agency 

requested information regarding the 

percentages of non-fiber materials (e.g., 

polystyrene foam, polyethylene film, 

other plastics, waxes and adhesives, 

dyes and inks, clays, starches, and other 

filler and coating additives, etc.). As 

discussed in section V.B.4. of this 

preamble, while unsuitable paper fibers 

(i.e., wet strength and short wood 

fibers), make up the largest portion of 

PRRs destined for fuel use, PRRs also 

contain these non-fiber materials that 

cannot be used to make paper or 

paperboard products. PRRs that contain 

a larger portion of wood fibers could be 

expected to have a higher heating value. 

However, no information was 

received from industry regarding the 

percentage of these non-fiber materials 

as the Agency requested. Lacking such 

information, the Agency finds that PRRs 

with higher amounts of non-fiber 

materials would have a lower heating 

value (i.e., consist predominantly of 

clays, pigments and inorganic fillers, 

which have little or no heat content). 

Combustion of more than small amounts 

of these materials which have low 

heating values constitute discard and 

thus burning of a waste fuel. The 

Agency has revised the definition of 

PRRs to clarify that the categorical nonwaste listing applies only to PRRs 

composed primarily of wet strength and 

short wood fibers that do not contain 

more than small amounts of polystyrene 

foam, polyethylene film, other plastics, 

waxes and adhesives, dyes and ink, 

clays, starches, and other filler and 

coating additives. (See also comment 

response regarding PRR definition 

below.) 

The Agency disagrees that heating 

value is irrelevant. As discussed in 

section V.B.4., based on all of the 

available information, including the fact 

that PRRs are primarily wood fibers, the 

Agency has determined that PRRs with 

heating values averaging 3,700 Btu/lb 

(or on a dry basis, averaging 9,100 Btu/ 

lb), whether generated on-site or 

combusted at off-site paper recycling 

mills that burn solid fuel, meet the 

meaningful heating value legitimacy 

criterion and are burned as a product 

fuel. PRRs that average less than 3,700 

Btu/lb (9,100 Btu/lb dry basis) would 

not have meaningful heating value for 

purposes of this categorical listing, thus, 

the listing would not apply to those 

materials.95

The EPA realizes that some facilities 

may be combusting PRRs that average 

less than 3,700 Btu/lb. However, data in 

the record indicates that a majority of 

facilities combust PRRs with heating 

values greater than 3,700 Btu/lb. 

Technical data on PRRs cited by 

industry 96 shows that five of the eight 

facilities (that included moisture 

content and heating value data) have asreceived heating values greater than 

3,700 Btu/lb with an average per facility 

of 3915 Btu/lb. Review of facilities 

combusting PRRs in the Boiler MACT 

Database indicates six of eleven 

facilities have PRR as-received heating 

values equal to or greater than 3700 Btu/ 

lb with an average per facility of 4777 

Btu/lb (in other terms, 30 of 55 unique 

data points are above 3,700 Btu/lb). 

Facilities combusting PRRs that do 

not meet the average 3,700 Btu/lb 

meaningful heating value criterion for 

the categorical PRR non-waste listing 

have several options to continue to burn 

those PRRs. Combustors may take 

additional measures to meet the average 

3,700 Btu/lb level by further drying the 

PRRs or removing low heat content nonfiber material. Combustors burning 

lower BTU value PRRs may also make 

self-determinations under 40 CFR 

241.3(b) that the material is a non-waste 

fuel and meets legitimacy criteria 

including meaningful heating value. 

Finally, combustors can continue to 

burn those lower BTU PRRs under the 

section 129 standards of the CAA. 

ii. Other Discarded Materials 

Comment: A commenter noted that 

the proposal stated that evaluations 

conducted for the development of the 

boiler database suggested that, in a few 

cases, OCC rejects being recycled 

contain other discarded materials. For 

example, some paper recycling mills 

may accept cardboard containers from 

off-site that have not been completely 

emptied of their contents or otherwise 

are contaminated with foreign materials. 

The Agency was interested in receiving 

information regarding how common this 

practice is, the composition of the 

contents/materials, any precautions 

taken to ensure that the contents/

materials do not contribute to 

unacceptable contaminant 

concentrations, and whether any 

additional conditions should be 

imposed to ensure that such cardboard 

containers have been emptied. 

The commenter went on to say, 

however, that the EPA does not need to 

be concerned about other materials 

contained in PRRs, and any 

unacceptable contaminant 

concentrations related to such materials. 

For sales transactions that are direct 

with suppliers, the mills and suppliers 

rely on the Scrap Specification 

Circular 97 to assure the quality of the 

bales of recovered fiber received. There 

are practices in place to reduce the 

likelihood of contamination in the 

incoming bales. In isolated instances 

where bales contain unwanted 

materials, the bale may be rejected; the 

bale may be accepted but rejected after 


asabaliauskas on DSK5VPTVN1PROD with RULES
6720 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

98 December 2011 boiler database—Boiler 

Reconsideration Proposal Databases: Emissions 

Database for Boilers and Process Heaters Containing 

Stack Test, CEM, & Fuel Analysis Data Reported 

under ICR No. 2286.01 & ICR No. 2286.03 (version 

7); http://epa.gov/ttn/atw/boiler/boilerpg.html. 

further inspection; or the bale may be 

used and the contaminants removed 

during processing. Given the amount of 

water and fiber that are processed 

together, it is unlikely that the 

contaminants would be at a level of 

concern. Rejected bales and boxes are 

sent to a landfill and are not used as 

fuel. Additional testing requirements are 

in place to assure that packaging is of 

suitable purity for mills producing 

recycled paper that will be used for 

food-contact packaging. 

Response: The Agency disagrees that 

the presence of foreign materials in OCC 

rejects undergoing recycling should not 

be of concern. Combustion of such 

materials remaining in the PRRs after 

recycling constitute burning of a solid 

waste; and as such, units burning those 

materials would be subject to CAA 

section 129 standards. Information 

received from commenters states that 

the inspection practices described above 

prevent the introduction of other 

discarded materials and are standard 

practice. Based on that information, and 

examination of the few cases in the 

boiler database of foreign materials 

present in OCC rejects undergoing 

recycling,98 the Agency has concluded 

that such situations are incidental, and 

no specific conditions to ensure the 

containers are empty are warranted, 

other than to describe the incidental 

contamination as part of the categorical 

listing. The Agency reiterates, however, 

that the combustion of discarded 

materials in PRRs would result in the 

application of the CAA section 129 

standards. 

iii. Combustion Off-Site 

Comment: Under D.C. Circuit 

precedent, the use of PRRs by the paper 

industry should not be treated any 

differently from the use of the PRRs by 

the generator. AMC I, at 1186, 1192–93 

(materials recycled in an ongoing 

industrial process are not discarded and 

materials that are destined for beneficial 

use by the generating industry itself are 

not waste because such materials are not 

part of the waste disposal problem). 

Mills that do not combust solid fuel can 

and do send PRRs to mills that have that 

capability. 

Response: For combustion at PRRs 

within the paper recycling industry, the 

Agency examined the data in the record 

from previous rulemakings as well as 

comments received on the proposal. The 

Agency has determined that it is 

appropriate to revise the proposed to 

include PRRs generated by paper 

recycling mills that are transferred offsite to other paper recycling mills for 

energy recovery. This determination 

addresses those generators that do not 

have the capability to combust the 

materials on-site, but who wish to 

transfer their PRRs off-site for 

combustion at the estimated 15–20 

paper recycling mills that do have the 

solid fuel boilers capable of burning 

PRRs for energy recovery. The PRRs 

transferred off-site are utilized in the 

same manner as self-generated paper 

recycling residuals i.e., they are 

legitimately burned for fuel in solid fuel 

boilers that are designed to burn wet 

fuels, with mills optimizing their 

operation around boiler design. Thus, 

we have determined that such use does 

not constitute discard. 

While the EPA agrees that, under 

certain circumstances, PRRs may be 

transferred as a product fuel within the 

paper recycling industry (and are not 

discarded), the Agency disagrees with 

the comment’s characterization of the 

AMC I case. AMC I does not directly 

apply in this instance. The AMC I 

holding stated that material reclaimed 

in a continuous industrial process could 

not be a waste. It did not specifically 

cover materials transferred between 

facilities, even in the same industry, 

particularly a material reclaimed from 

recycled paper but then used for another 

purpose—burning as a fuel. 

Comment: PRRs are an important part 

of the fuel mix for facilities other than 

paper recycling mills, and third party 

sellers and purchasers classify PRR as 

fuel. Limiting the ability to utilize PRRs 

as fuel to those paper mills that have onsite boilers that are designed to burn 

solid fuel is arbitrary and unnecessary. 

Many facilities routinely purchase and 

transport non-hazardous secondary 

materials generated at a third party 

location to their sites for legitimate use 

as fuel. These materials are sourced and 

purchased as fuels from others and 

thereby satisfy the first two legitimacy 

criteria: (1) Be handled as a commodity 

with an established market; and (2) have 

sufficient Btu content to support their 

use as fuel. The third legitimacy 

criterion (contain contaminants that are 

not significantly higher in concentration 

than traditional fuel products), is 

addressed in the user’s air permit rather 

than in a duplicative non-waste 

determination process. 

Several mills have also partnered with 

local utilities that can use the PRRs as 

fuel. Further, requiring an off-site 

facility to petition the EPA before it 

could acquire and burn PRRs will add 

significant administrative costs. Small 

paper mills typically do not have solidfuel boilers and therefore look to off-site 

partners to find appropriate uses for 

their PRRs. 

Response: The Agency disagrees that 

the categorical non-waste determination 

should include PRRs combusted at 

facilities that are not paper recycling 

mills, and lacks sufficient information 

to determine that combustors outside 

the paper recycling industry continue to 

meet the legitimacy criteria and are, 

therefore, not discarded. 

The Agency clearly stated its need for 

additional information regarding 

residuals that are burned as fuel at 

facilities not under the control of the 

generator. The EPA requested detailed 

information about how PRRs are 

managed as a valuable commodity (from 

point of generation at the paper 

recycling mill to insertion at the off-site 

combustor); have a meaningful heating 

value; and contain contaminants at 

levels comparable to or lower than those 

in traditional fuel(s) which the 

combustor is designed to burn. 

General statements that PRRs are an 

important part of the fuel mix outside 

the paper recycling industry, and that 

third party sellers and purchasers 

classify PRRs as fuel, is not the relevant 

consideration for deciding whether 

material, even a fuel, is burned as a 

waste. 

Moreover, merely saying that a 

material is considered a fuel does not 

address the issue of whether that fuel is 

a waste. Wastes may be burned as fuels, 

but they still are wastes. The 

commenters did not provide data 

regarding how that material meets other 

legitimacy criteria including 

management of the fuel as a valuable 

commodity and meaningful heating 

value. In particular, the Agency did not 

receive information that facilities 

outside the paper recycling industry 

combusted PRRs in the solid fuel boilers 

designed to burn wet fuels characteristic 

of paper recyclers. While the EPA may 

accept the low Btu value of PRRs as a 

legitimate product fuel for paper 

recycling facilities, the same kind of low 

Btu value fuel could be a waste at other 

facilities. At those facilities, any low Btu 

value material could simply be thrown 

in as a waste. 

In addition, the EPA rejects arguments 

that the Agency should rely on air 

permit emissions limitations in 

determining whether material is a 

waste. Prior to establishing emission 

limits, the EPA first needs to determine 

whether the material is discarded in 

order to decide whether boiler emission 

standards (under CAA section 112 

regulations) or CAA section 129 

standards would apply. 


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Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 6721 

99 Included in the docket for the final rule. 

100Secondary materials are materials that are not 

the primary product of a manufacturing or 

commercial process, and can include postconsumer material, off-specification commercial 

chemical products or manufacturing chemical 

intermediates, post-industrial material and scrap. 

PRRs sent off-site for combustion to 

facilities outside the paper recycling 

industry will require submittal and 

approval of a non-waste petition under 

40 CFR 241.3(c) to be burned at CAA 

section 112 facilities. 

Comment: The EPA should include 

cement kilns as an appropriate off-site 

end-user for utilization of PRR 

categorical non-waste fuels. Cement 

kilns are capable of handling a wide 

variety of fuels without the need for 

extensive processing that some other 

combustion facilities require in order for 

the materials to be legitimate. A table 

comparing the contaminant levels in 

PRRs to those found in the solid 

traditional fuels used at cement kilns, 

including coal and coke was provided.99

The table shows that contaminant 

concentrations in the PRR categorical 

non-wastes are less than the range 

maximum for coal and coke, which are 

the solid traditional fuels used in 

cement kilns. Meaningful heating values 

of 3,700 Btu/lb are also well within the 

design and operating range of cement 

kilns. Some kilns inject water for NOX

control and the same effect could be 

achieved using a high moisture fuel 

material. There is variation in the 

capabilities and other environmental 

restrictions of facilities capable of using 

PRR categorical non-waste fuels, and 

cement kilns in particular generally 

have the ability to use a wider variety 

of fuels. These materials have great 

value to the energy intensive cement 

industry, which manages alternative 

fuels as valuable commodities. 

Response: The Agency disagrees that 

the categorical non-waste determination 

should include PRRs transported offsite 

and combusted at cement kilns. The 

information presented on cement kilns 

lacks sufficient detail overall to 

determine that such PRRs continue to 

meet the legitimacy criteria and are not 

discarded. The information that was 

received included the referenced table 

showing that contaminant 

concentrations in the PRRs combusted 

in cement kiln are less than the range 

for solid fuels, as well as cement kilns 

overall capability to use a wide range of 

materials with lower heating values that 

may not be practical in other 

combustion processes. However, no 

information was provided, as requested, 

as to how PRRs are managed as a 

valuable commodity from the point of 

generation at the paper recycling mill to 

insertion at the off-site combustor (i.e., 

cement kiln) to clearly show that 

discard is not occurring. 

The arguments that cement kilns are 

capable of handling a wide variety of 

fuels without the need for extensive 

processing that some other facilities 

require and that processing needs to be 

flexible and appropriate to the receiving 

combustion unit could demonstrate that 

cement kilns can burn waste fuels as 

well as non-waste fuels. The commenter 

also misunderstands the ‘‘processing’’ 

requirements under 40 CFR part 241 

standards. Under 40 CFR 241.3(b)(4), 

when discarded, NHSMs must be 

processed i.e., ‘‘transformed’’ into a 

non-waste fuel, in accordance with the 

processing definition at 40 CFR 241.2, 

and meet legitimacy criteria prior to 

combustion. The capabilities of the 

combustion unit are not a factor in 

determining whether the material has 

been sufficiently processed. 

To reiterate, these comments 

generally confirm that cement kilns are 

capable of burning wastes as fuels. If 

they do, they should be regulated under 

section 129 of the Clean Air Act. 

b. Definition of PRRs 

Comment: The EPA proposes to 

define PRRs as follows: ‘‘Paper recycling 

residuals means the co-product material 

generated from the paper recycling 

process and is composed primarily of 

wet strength and short wood fibers that 

cannot be used to make new paper and 

paperboard products. The term paper 

processing residuals also includes fibers 

from old corrugated container rejects.’’ 

Proposed 40 CFR 241.2. 

It is our understanding that the EPA 

does not intend to distinguish between 

residuals from recycling paper and 

residuals from recycling old corrugated 

containers and that the EPA recognizes 

that these residuals are composed 

primarily of fibers but that there could 

include other materials from the paper 

and corrugated cardboard bales. As the 

EPA has noted: ‘‘For example, use of old 

corrugated cardboard (OCC) rejects 

(clay, starches, other filler and coating 

materials, as well as fiber) are not 

discarded when used within the control 

of the generator, since these secondary 

materials are part of the industrial 

process. OCC rejects can include, and 

are usually burned in conjunction with, 

other fuels (such as bark) at pulp and 

paper mills that recycle fibers. 76 FR at 

15472. 

To apply this understanding to both 

paper and paperboard, we suggest the 

following revision to the definition: 

Paper recycling residuals means the coproduct material generated from the 

recycling of paper, paperboard, and 

corrugated containers and is composed 

primarily of wet strength and short 

wood fibers that cannot be used to make 

new paper and paperboard products. 

Response: The EPA disagrees that the 

definition of PRR should not distinguish 

between wet strength and short wood 

fibers and the non-fiber material 

contained in OCC rejects (clays, 

starches, and other filler and coating 

additives) as well as other non-fiber 

material (polystyrene foam, 

polyethylene film, other plastics, waxes 

and adhesives, dyes and ink). As 

discussed in section V.B.4. of this 

preamble, the Agency finds that PRRs 

that are not composed primarily of 

wood fibers unsuitable for making paper 

and contain more than small amounts of 

certain non-fiber materials would be 

considered waste fuels and would not 

be eligible for this categorical listing. 

As discussed in the comment above 

regarding meaningful heating value, no 

specific information was received from 

industry regarding the percentage of 

these non-fiber materials as the Agency 

requested. Lacking information to the 

contrary, the Agency finds that PRRs 

with higher amounts of non-fiber 

materials would have a lower heating 

value. Combustion of materials with low 

heating values would be considered 

discard of those materials and burning 

of a waste fuel. The Agency is thus 

revising the proposed definition of PRRs 

and clarifying the previous statements at 

76 FR 15472, March 21, 2011, regarding 

non-fiber material contained in OCC 

rejects to make clear that the categorical 

non-waste listing applies only to PRRs 

composed primarily of wet strength and 

short wood fibers that do not contain 

more than small amounts of polystyrene 

foam, polyethylene film, other plastics, 

waxes and adhesives, dyes and ink 

clays, starches, and other filler and 

coating additives. 

The definition also clarifies that PRRs 

are more appropriately defined as 

secondary materials 100 rather than coproducts, generated from the recycling 

of paper, paperboard and corrugated 

containers. Use of the term co-products 

could infer that PRRs are a product fuel 

that has undergone processing through 

the paper recycling manufacturing 

process. Rather, the paper recycling 

manufacturing process primarily makes 

wood fibers that are used to make new 

paper and paperboard products. PRRs 

are a secondary material or ‘‘byproduct’’ 

of that manufacturing process and are 

not discarded when used as a fuel 

within control of the generator or sent 

off-site to other paper recycling mills 

within the industry and legitimately 


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6722 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

101AWPA Standard P1/P13 and P2 provide 

specifications for coal-tar creosote used for 

preservative treatment of piles, poles and timber for 

marine, land and freshwater use. The character of 

the tar used, the method of distillation, and the 

temperature range in which the creosote fraction is 

collected all influence the composition of the 

creosote, and the composition may vary with the 

requirement of standard specifications. April 2010. 

Forest Products Laboratory. 2010 Wood Handbook. 

General Technical Report FPL_GTR–190. Madison, 

WI. 

102American Forest & Paper Association, 

American Wood Council—Letter to EPA 

Administrator, December 6, 2012. 

103 In some cases, the reclamation company sells 

the crossties to a separate company for processing. 

104American Forest & Paper Association, 

American Wood Council—Letter to EPA 

Administrator, December 6, 2012. 

105M.A. Energy Resources LLC, Petition 

submitted to Administrator, EPA. February 2013. 

106American Forest & Paper Association, 

American Wood Council—Letter to EPA 

Administrator, December 6, 2012. 

burned in solid fuel boilers that are 

designed to burn wet fuels. 

The revised definition of Paper 

recycling residuals at 40 CFR 241.2 

appears in the regulatory language at the 

end of this document. 

C. Creosote-Treated Railroad Ties 

(CTRTs) 

The April 14, 2014 proposed rule 

described CTRTs in detail, explained 

the status of CTRTs under current rules, 

discussed comments received during 

previous proceedings, and discussed the 

scope of the proposed non-waste listing 

(79 FR 21021–23). The proposed 

rationale for the listing is found in the 

proposal at 79 FR 210 23–28 and is 

summarized and incorporated into this 

final rule, along with all sources 

referenced in that discussion and cited 

therein. The final decision in this rule 

is based on the information in the 

proposal and supporting materials in 

the rulemaking record. Any changes 

made to the final rule are based on the 

rationale, as described below. 

1. Detailed Description of CTRTs 

Railroad ties are typically comprised 

of North American hardwoods that have 

been treated with creosote. Creosote was 

introduced as a wood preservative in 

the late 1800’s to prolong the life of 

railroad ties. Creosote-treated wood ties 

remain the material of choice by 

railroads due to their long life, 

durability, cost effectiveness, and 

sustainability. As creosote is a byproduct 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 governed by the standards 

established by the American Wood 

Protection Association (AWPA). AWPA 

has established two blends of creosote, 

P1/13 and P2.101 Railroad ties are 

typically manufactured using the P2 

blend that is more viscous than other 

blends. 

CTRTs are railroad crossties removed 

from service and processed prior to 

being used as a fuel. Approximately 17 

million crossties are removed from 

service each year. About one third of the 

removed CTRTs are used for 

landscaping, with the majority of the 

remaining two thirds used for energy 

recovery. Because of its high energy 

content, CTRTs can be used for heat and 

energy recovery in combustion units as 

a nonhazardous biomass alternative to 

fossil fuel.102

Most of the energy recovery with 

crossties is conducted through three 

parties: The generator of the crossties 

(railroad or utility); the reclamation 

company that sorts the crossties, and in 

some cases processes the material 

received from the generator; 103 and the 

combustor as third party energy 

producers. Typically, ownership of the 

crossties is 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 

states there are approximately 15 CTRT 

recovery companies in North America 

with industry wide revenues of $65–75 

million. Members of AF&PA report that 

the value of CTRTs is underscored by 

the approximately $20–$30 per ton paid 

for CTRTs which can sometimes be a 

premium price compared to certain hog 

fuels (untreated clean wood residues 

from sawmills).104

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 stated that 

when the crossties are temporarily 

stored, they are stored until their value 

as an alternative fuel can be realized, 

generally through a contract completed 

for transferal of ownership to the 

reclamation contractor or combustor.105

This means that not all CTRTs originate 

from crossties removed from service in 

the same year; some CTRTs are 

processed from crossties removed from 

service in prior years and stored by 

railroads or removal/reclamation 

companies until their value as a 

landscaping element or fuel could be 

realized. 

CTRTs are transferred to reclamation 

companies, typically by rail. The 

processing of the crossties into fuel by 

the reclamation/processing companies 

involves several steps. Metals (spikes, 

nails, plates, etc.) are removed using a 

magnet, occurring one or 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 

occurs in several phases, including 

primary and secondary grinding, or in a 

single phase. Once the crossties are 

ground to a specific size, additional 

metal is removed if present 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 occurs 

concurrently with grinding or at a 

subsequent stage. Throughout the 

process, a non-toxic 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 storage 

timeframes 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 are combined with 

other biomass fuels, including hog fuel 

and bark. CTRTs are used to provide 

high Btu fuel to supplement low (and 

sometimes wet) Btu biomass to ensure 

proper combustion, often in lieu of coal 

or other fossil fuels.106 The combined 

fuel may be further hammered and 

screened prior to combustion. Contracts 

for the purchase and combustion of 

CTRTs may include fuel specifications 

limiting contaminants, such as metal, 

and precluding the receipt of wood 

treated with preservatives other than 

creosote. 

2. CTRTs Under Previous NHSM Rules 

a. March 21, 2011 NHSM Final Rule 

The March 21, 2011 NHSM final rule 

stated that most creosote-treated wood 

is non-hazardous. However, the 

presence of hexachlorobenzene, a CAA 

section 112 HAP, as well as other HAP 

suggested that creosote-treated wood, 

including CTRTs, contained 


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Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 6723 

107For the purposes of this final rule, fuel oil 

means oils 1–6, including distillate, residual, 

kerosene, diesel, and other petroleum based oils. It 

does not include gasoline or unrefined crude oil. 

108 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., CTRTs). Of the 

14 entities, 9 companies are currently firing or have 

fired CTRTs within the past two years. Information 

on pulp and paper and utility sources currently 

utilizing CTRTs demonstrates that several of these 

sources use between 5,000 and 70,000 tons of 

CTRTs per year. Information compiled by M.A. 

Energy LLC. (MAER) contained in letters and emails 

from All4 Inc. to EPA dated January 29, and 

February 28, 2014. 

109American Forest and Paper Association and 

American Wood Council’s letter to George Faison, 

EPA. March 7, 2013. 

110 Information was received that the forest 

products industry boilers combusting CTRTs also 

includes hybrid suspension grate boilers. See 

docket EPA–HQ–RCRA–2013–0110–0076. 

111To 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 rule in this 

document would not impact their regulatory status. 

112American Forest and Paper Association and 

American Wood Council’s letter to George Faison, 

EPA. March 7, 2013. 

113Examples of combustors utilizing a variety of 

traditional and other fuels, including facilities 

combusting both CTRTs 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 

CTRTs, 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. 

114See 78 FR 9149 

contaminants at levels that are not 

comparable to or lower than those found 

in wood or coal, the fuel that creosotetreated wood would replace. In making 

the assessment, the Agency did not 

consider fuel oil 107 as a traditional fuel 

that CTRTs would replace, and 

concluded at the time that combustion 

of creosote-treated wood may result in 

destruction of contaminants contained 

in those materials. Such destruction 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 meet the 

contaminant legitimacy criterion. This 

material, therefore, was considered a 

solid waste when burned and units 

combusting it would be subject to the 

CAA section 129 emission standards. 

The conclusions from the March 21, 

2011 rule regarding creosote-treated 

wood are discussed further in section 

V.C.4. of this preamble. 

b. February 2013 NHSM Final Rule 

In the February 7, 2013 NHSM final 

rule, the 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 CTRT combusted in any unit. 

The letter included information 

regarding the amounts of railroad ties 

combusted each year and the value of 

the ties as fuel. The letter also discussed 

how CTRTs satisfy the legitimacy 

criteria, including its high Btu value. 

While this information was useful, it 

was not sufficient for the EPA to 

propose that CTRTs be listed 

categorically as a non-waste fuel. As 

explained in the proposed rule, the EPA 

had requested that additional 

information be provided to further 

inform the Agency as to whether to list 

CTRTs categorically as a non-waste fuel, 

and stated that if this additional 

information supported and 

supplemented the representations made 

in the December 2012 letter, the EPA 

would expect to propose a categorical 

listing for CTRTs. 

The requested information and 

responses provided are outlined below. 

• A list of industry sectors, in 

addition to forest product mills, that 

burn railroad ties for energy recovery: 

One respondent claimed that a number 

of end-use combustors utilize CTRTs as 

an alternative fuel to offset fossil fuel at 

all times. Such facilities use as much as 

100–500 tons of CTRTs daily. The 

respondent also claimed to know of 

additional 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 of the current 

solid-waste implications associated with 

CTRTs. The end-use combustors that 

currently utilize CTRTs, both full-time 

and part-time, represent a variety of 

industry sectors, including pulp and 

paper manufacturing, cogeneration 

plants, utilities, and chemical 

manufacturing facilities. For the utility 

sector, at least 14 utilities could burn 

(i.e., are permitted to burn) or are 

burning CTRTs.108 Another respondent 

claimed that data 109 show that a 

number of forest product mills are 

currently using railroad ties as a fuel 

and that other mills are permitted to 

burn these materials as fuels, but have 

stopped using them as a fuel due to 

their uncertain regulatory status, as well 

as other economic factors (e.g., lower 

cost of other fuels). 

• The types of boilers (e.g., kilns, 

stoker boilers, circulating fluidized bed, 

etc.) that burn railroad ties for energy 

recovery. Respondents stated that the 

types of units operated by those end-use 

combustors that utilize CTRTs as an 

alternative fuel include fluidized bed, 

traveling grate, and spreader stoker. 

Forest product industry boilers that 

burn railroad ties are generally one of 

three types: stoker, bubbling bed or 

fluidized bed boilers.110

• The traditional fuels and relative 

amounts (e.g., startup, 30 percent, 100 

percent) of these traditional fuels that 

could otherwise generally be burned in 

these types of units. Respondents also 

claimed that units operated by end-use 

combustors that utilize CTRTs as an 

alternative fuel typically burn a variety 

of ‘‘traditional fuels,’’ such as coal, 

biomass (i.e., hog fuel, bark fuel, and 

other biomass fuel materials), and fuel 

oil, as well as other materials and 

wastes, such as tire derived fuel, waste 

derived liquid fuel, and waste derived 

solid fuel.111 112 In general, they claimed 

that all of the units that burn CTRTs 

also burn significant quantities of 

biomass given the similarity of the fuels’ 

characteristics. In addition, they 

claimed that most of these units are 

permitted to burn fuel oil either during 

start-up or during normal operations. 

The respondents claimed 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 claimed that some states 

are looking to reduce SO2 emissions 

from sources and thus, encourage 

greater use of biomass or natural gas 

rather than fuel oil.113

Respondents claimed that the most 

comparable traditional fuel to railroad 

ties is fuel oil. However, they believe 

the question of whether a combustion 

unit is designed to burn a specific fuel 

is not relevant when the EPA makes a 

determination under 40 CFR 241.4(a). 

Specifically, the respondents claimed 

that the EPA has interpreted the phrase 

‘‘designed to burn’’ to mean that a 

combustor that burns NHSMs as a nonwaste 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. The 

EPA explained that this standard is to 

avoid the possibility that discard could 

be occurring in some situations.114

However, in the context of a specific 

non-waste determination under 40 CFR 

241.4(a), the respondents argued that 

the EPA has the opportunity to evaluate 

all the factors relating to the use of 

CTRTs as a fuel, including the fact that 

CTRTs is a commodity that is purchased 

by the combustor. Furthermore, 

respondents argued that the EPA has the 


asabaliauskas on DSK5VPTVN1PROD with RULES
6724 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

115The 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 (showing the presence of both 

PAHs and dibenzofuran), past TCLP results (which 

showing the presence of cresols, hexachlorobenzene 

and 2,4-dinitrotoluene), Material Safety Data Sheets 

for coal tar creosote (which showing the potential 

presence of biphenyl and quinoline), and the 

absence of dioxin analyses prior to combustion 

despite extensive dioxin analyses of postcombustion emissions. 

116Statements at meeting between American 

Forest and Paper Association and Mathy Stanislaus 

on December 19, 2013 indicate that, CTRTs 

generally comprise 40% of total fuel load. 

discretion to recognize that when a 

combustor purchases CTRTs and then 

burns it in a boiler, that combustion is 

for the purpose of generating energy 

rather than discarding the railroad ties. 

According to the respondents, any other 

conclusion would lead to the absurd 

result that one boiler can burn CTRTs as 

a legitimate fuel and another boiler— 

with essentially the same design except 

for a nozzle feed for fuel oil—would 

have to consider the CTRTs as a solid 

waste. (See section V.B.6 of this 

preamble for the EPA’s consideration of 

the information and views presented by 

these respondents.) 

• The extent to which non-industrial 

boilers (e.g., commercial or residential 

boilers) burn CTRTs for energy recover. 

The respondent understood that the 

residential use of CTRTs for purposes of 

energy recovery is unlikely. However, 

they explained that several local 

utilities in the northern Midwest utilize 

CTRTs for purposes of power generation 

but they have not identified the specific 

facilities. 

• Laboratory analyses for 

contaminants known or reasonably 

suspected to be present in creosotetreated railroad ties, and contaminants 

known to be significant components of 

creosote, specifically polycyclic 

aromatic hydrocarbons (i.e., PAH-16), 

dibenzofuran, cresols, 

hexachlorobenzene, 2,4-dinitrotoluene, 

biphenyl, quinoline, and dioxins.115

Respondents submitted contaminant 

data for crushed CTRTs, which are 

discussed in section V.C.4. of this 

preamble. With the exception of 

dioxins, which respondents explain will 

not be present in CTRTs, analyses were 

submitted for all requested constituents 

and other contaminants. 

3. Scope of the Proposed Rule and Final 

Categorical Non-Waste Listing for CTRT 

Under the proposed rule, CTRT was 

proposed to be listed as a categorical 

non-waste when combusted in units 

that burn both fuel oil and biomass. 

This limitation was based on the fact 

that contaminant levels for semi-volatile 

organics (SVOCs) are significantly 

higher in CTRT than levels in biomass 

and coal, but CTRT levels for those 

contaminants are lower than levels in 

fuel oil. In contrast, fluorine and 

nitrogen contaminant levels are 

significantly higher in CTRT than in 

fuel oil, but levels for those 

contaminants are lower than levels in 

biomass and coal (79 FR 21023.) Thus, 

only units burning both biomass and 

fuel oil would pass the contaminant 

legitimacy criteria when comparing 

contaminants in the NHSM to the 

traditional fuel. 

Based on information received after 

the February 7, 2013 final rule stating 

that units were switching from fuel oil 

to natural gas due to lower compliance 

costs during operation, we also stated in 

the proposal that the Agency was 

considering another approach for CTRTs 

combusted in existing units at major 

source pulp and paper mills that had 

been designed to burn fuel oil and 

biomass, but are being modified in order 

to use clean fuel such as natural gas 

instead of fuel oil (79 FR 21028). If the 

EPA were to include this additional 

approach in the categorical listing, the 

CTRT could continue to be combusted 

only if certain conditions were met, 

which are all intended to ensure that the 

CTRTs are not being discarded. 

Conditions included in the proposal are: 

• CTRTs must be burned in an 

existing stoker, bubbling bed or 

fluidized bed boiler; 

• the CTRTs can comprise no more 

than 40 percent of the fuel that is used 

on a monthly basis; 116

• the boiler that burned the CTRTs 

must have been designed to burn both 

fuel oil and biomass; and 

• boiler is modifying its design to also 

burn natural gas. 

The Agency stated in the proposed 

rule that we did not believe that 

combustion of CTRT in boiler units that 

are currently designed to burn both 

biomass and fuel oil but are being 

modified (i.e., removing oil delivery 

equipment) in order to burn natural gas 

should be considered discard of the 

CTRTs. EPA considered that these 

facilities have demonstrated the ability 

to burn fuel oil along with biomass and 

should not be penalized for switching to 

the cleaner natural gas fuel. Information 

submitted at the time indicating that 

CTRTs are an important part of the fuel 

mix due to the consistently lower 

moisture content and higher Btu value, 

as well as the benefits of drier, more 

consistent fuel to combustion units with 

significant swings in steam demand, 

further suggested that discard is not 

occurring. 

The additional approach was meant to 

address only the circumstance where 

contaminants in CTRTs are comparable 

to or less than the traditional fuels the 

unit was originally designed to burn 

(both fuel oil and biomass) but that 

design was modified in order to 

combust natural gas. The approach was 

not a general means to circumvent the 

contaminant legitimacy criterion by 

allowing combustion of any NHSM with 

elevated contaminant levels, i.e. levels 

not comparable to the traditional fuel 

the unit is currently designed to burn. 

The particular facilities in this case had 

used CTRTs and would clearly be in 

compliance with the legitimacy criteria 

if they did not switch to the cleaner 

natural gas fuel. EPA believed it 

appropriate to balance other relevant 

factors in this categorical non-waste 

determination and that it is appropriate 

for the Agency to decide that the 

switching to the cleaner natural gas 

would not render the CTRTs a waste 

fuel in view of the historical usage as a 

product fuel in the stoker, bubbling bed 

and fluidized bed boilers. 

For this final rule, based on comments 

received and information in the 

rulemaking record, the EPA has 

sufficient information to list CTRTs as a 

categorical non-waste fuel in 

combustion units that are designed to 

burn both biomass and fuel oil. The 

Agency finds that units will meet this 

condition if the unit combusts fuel oil 

as part of normal operations and not 

solely as part of start-up or shut-down 

operations. 

The Agency is also adopting the 

additional approach outlined in the 

proposed rule with some revisions. 

Specifically, based on comments 

received and information in the 

rulemaking record, the Agency has 

sufficient information to list as 

categorical non-wastes CTRTs that are 

combusted in units at major source pulp 

and paper mills or power producers 

subject to 40 CFR part 63 Subpart 

DDDDD (Boiler MACT) that had been 

designed to burn biomass and fuel oil, 

but are modified (e.g. oil delivery 

mechanisms are removed) in order to 

use natural gas instead of fuel oil as part 

of normal operations and not solely as 

part of start-up or shut-down operations. 

The CTRT may continue to be 

combusted as a product fuel under this 

section only if certain conditions are 

met, which are intended to ensure that 

the CTRTs are not being discarded: 

• The CTRTs must be combusted in 

existing (i.e. commenced construction 

prior to April 14, 2014) stoker, bubbling 

bed, fluidized bed or hybrid suspension 

grate boilers; and 


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117As discussed in the NHSM final rule (76 FR 

15520), ‘‘reasonable time frame’’ is not specifically 

defined as such time frames vary among the large 

number of non-hazardous secondary materials and 

industries involved. 

• CTRTs can comprise no more than 

40 percent of the fuel that is used on an 

annual heat input basis. 

The standard is applicable to existing 

units burning CTRTs that had been 

designed to burn fuel oil and biomass 

and have been modified to burn natural 

gas. The standard will also apply if an 

existing unit burning CTRTs and 

designed to burn fuel oil and biomass is 

modified at some point in the future. 

Based on comments received on the 

proposed rule, several revisions were 

made in the additional approach as 

adopted for the final rule under section 

241.(a)(7): (1) CTRTs combusted in units 

at power producers subject to 40 CFR 

part 63 Subpart DDDDD (Boiler MACT) 

have been added to the categorical 

listing; (2) the 40% fuel load limit has 

been changed to an annual heat input 

basis; (3) regulatory language was added 

stating that units combusting fuel oil 

and natural gas, as well as units that had 

switched from fuel oil to natural gas, 

must combust these materials as part of 

normal operations and not solely as part 

of start-up or shut-down operations; and 

(4) hybrid suspension grate boilers are 

added to the list of acceptable boilers 

and to provide further clarity regarding 

CTRTs combusted in ‘‘existing’’ stoker, 

bubbling bed, fluidized bed or hybrid 

suspension grate boilers, existing is 

defined as April 14, 2014, the date of 

issuance of the proposed rule. 

See section V.C.6. Response to 

Comments for a further discussion of 

these changes. 

4. Rationale for Final Rule 

This section discusses the reasoning 

provided in the proposed rule and the 

reasons for the EPA’s final 

determinations for the categorical listing 

of CTRTs. EPA adopts the reasoning in 

the proposed rule and further explains 

it in this preamble. Further explanations 

for the Agency’s decision are provided 

in the Response to Comments below. 

The proposal, this section, and the 

Response to Comments all constitute the 

Agency’s final determination supporting 

this rule. 

a. Discard 

When deciding whether an NHSM 

should be listed as a categorical nonwaste fuel in accordance with 40 CFR 

241.4(b)(5), the EPA first evaluates 

whether or not the NHSM has been 

discarded in the first instance and, if not 

so discarded, whether or not the 

material could be considered discarded 

because it is not legitimately used as a 

product fuel in a combustion unit. 

Based on the rulemaking record, as 

discussed below, the Agency has 

determined that CTRTs are not 

discarded when processed and 

combusted in the types of units 

described herein. 

i. Storage of CTRT 

As discussed in section V.C.1. of this 

preamble, crossties removed from 

service are sometimes temporarily 

stored in the railroad right-of-way or at 

another location selected by the 

reclamation company. This means that 

not all CTRTs originate from crossties 

removed from service in the same year; 

some CTRTs are processed from 

crossties removed from service in prior 

years and stored by railroads or 

removal/reclamation companies until a 

contract for reclamation is in place. 

The December 6, 2012, letter from 

AF&PA states that in those cases where 

the railroad or reclamation company 

wait for more than a year to realize the 

value of the CTRTs as a fuel (or in 

landscaping) does not mean that the 

CTRTs have been discarded and cite 76 

FR 15456, 15520 of the March 21, 2011 

rule. That section of the rule addresses 

the management of the NHSM as a 

valuable commodity and states that 

storage of the NHSM must be within a 

reasonable timeframe.117 The letter 

further states that there is a robust 

market for companies engaged in 

railroad tie reclamation, and the cost of 

this material indicates that the material 

is a valuable commodity and has not 

been discarded. 

While the Agency recognizes that the 

reasonable timeframe for storage may 

vary by industry, the Agency disagrees 

that any explanation (other than a repeat 

of what the rules say) has been provided 

of why storage that may be longer than 

a year is not discard, especially when 

they argue that CTRTs are a valuable 

material. Therefore, without further 

explanation or information from the 

public, the Agency concludes that 

CTRTs removed from service that may 

be stored in a railroad right of way or 

other location for long periods of time— 

that is, a year or longer, without a 

determination regarding their final end 

use (e.g., landscaping, as a fuel or land 

filled) shows that the material has been 

discarded and is a solid waste (see the 

preamble discussion of discard 76 FR 

15463 in the March 21, 2011 rule). The 

assertion that the CTRTs are a valuable 

commodity in a robust market does not 

change the fact that the CTRTs have 

been discarded at some point. NHSMs 

may have value in the marketplace and 

still be wastes. 

ii. Processing of CTRTs 

The railroad ties removed from 

service are considered discarded 

because they can be stored for long 

periods of time without a final 

determination regarding their final end 

use. In order for them to be considered 

a non-waste fuel, they must be 

processed, thus transforming the 

railroad ties into a product fuel that 

meets the legitimacy criteria, or if not 

meeting the legitimacy criteria, would 

still be considered a non-waste fuel if 

the EPA decides so after balancing the 

legitimacy criteria with other relevant 

factors. The Agency concludes that the 

processing of CTRTs described above in 

section V.C.1. of this preamble meets 

the definition of processing in 40 CFR 

241.2. Processing includes operations 

that transform discarded NHSM into a 

non-waste fuel or non-waste ingredient, 

including operations necessary to: 

Remove or destroy contaminants; 

significantly improve the fuel 

characteristics (e.g., sizing or drying of 

the material, in combination with other 

operations); chemically improve the asfired energy content; or improve the 

ingredient characteristics. Minimal 

operations that result only in modifying 

the size of the material by shredding do 

not constitute processing for the 

purposes of the definition. Specifically, 

the Agency concludes that CTRTs meet 

the definition of processing in 40 CFR 

241.3 because: 

• Contaminants (spikes, nails, plates, 

etc.) are removed using a magnet. This 

magnetic removal of metals may occur 

several times during processing. 

• The fuel characteristics of the 

material are improved when the 

crossties are ground or shredded to a 

specified size depending on the 

particular needs of the end-use 

combustor. The grinding may occur in 

one or more phases. Once the CTRTs are 

ground, there may be additional 

screening to bring the material to a 

specified size. 

b. Legitimacy Criteria 

In determining whether to list CTRTs 

as a categorical non-waste fuel in 40 

CFR 241.4(a), the Agency evaluated the 

legitimacy criteria in 40 CFR 

241.3(d)(1)—that is, whether it is 

managed as a valuable commodity, 

whether it has a meaningful heating 

value and is used as a fuel in a 

combustion unit to recover energy, and 

whether contaminants or groups of 

contaminants are at levels comparable 

to or less than those in the traditional 

fuel the unit is designed to burn. To the 

extent that CTRTs do not meet one or 

more of the legitimacy criteria, and are 


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6726 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

118Prior 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. 

119See 76 FR 15541. 

120Fuel analysis data for unadulterated wood. 

USEPA, Office of Air Quality Planning and 

Standards, Emissions Data for Boilers and Process 

Heaters Containing Stack Test, CEM & Fuel 

Analysis Data Reported Under ICR No. 2286.03 

(Version 6) EPA Docket Number EPA–HQ–OAR– 

2002–0058–3255. February 2011. 

thus discarded, the Agency may 

consider other relevant factors in 

determining whether to list CTRT as a 

categorical non-waste fuel (40 CFR 

241.4(b)(5)(ii)). The Agency adopts for 

the final rule the reasoning explained 

below. 

i. Managed as a Valuable Commodity 

As discussed in the proposed rule and 

adopted for the final rule, the processing 

of CTRTs is correlated to the particular 

needs of the end-use combustor. 

Additional screening may take place 

after the grinding and shredding of the 

CTRTs if deemed necessary. Once the 

CTRTs meet the end use specification, 

they are then sold directly to the enduse combustor for energy recovery. 

CTRTs are delivered to the end-use 

combustors via railcar and/or truck 

similar to delivery of traditional 

biomass fuels. 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 include screening by the 

end-use combustor, combining with 

biomass fuels, and transferring to the 

combustor via conveyor belt or frontend loader. Since processed CTRT 

storage does not exceed reasonable time 

frames and are handled/treated similar 

to analogous biomass fuels by end-use 

combustors, CTRTs meets the criterion 

for being managed as a valuable 

commodity.118

ii. Meaningful Heating Value and Used 

as Fuel To Recover Energy 

As discussed in the proposal and 

adopted as the reasoning to support the 

final rule, the heating value of processed 

CTRTs ranges from 6,000–8,000 Btu/lb 

as fired, and combustion units recover 

energy by burning the material as fuel. 

In the March 21, 2011 NHSM final rule, 

the Agency stated that NHSMs with an 

energy value greater than 5,000 Btu/lb, 

as fired, are considered to have a 

meaningful heating value.119

Information compiled by the EPA in 

2011 also specifies that CTRTs could 

replace clean wood that has an average 

as-fired heating value of 5,150 Btu/lb, 

with a low as-fired heating value of 

3,440 Btu/lb.120 Thus, CTRTs have 

greater heating value than the 

traditional fuel it replaces, and meet the 

criterion for meaningful heating value 

and used as a fuel to recover energy, and 

are not discarded for purposes of this 

criterion. 

iii. Contaminants Comparable to or 

Lower Than Traditional Fuels 

For CTRTs, the EPA compared the 

additional data submitted on 

contaminant levels by industry to 

analogous data for two traditional fuels: 

Biomass (including untreated clean 

wood) and fuel oil. The data the EPA 

received on CTRTs comes from the 

following three sources: M.A. Energy 

Resources (MAER), URS Corporation on 

behalf of the Association of American 

Railroads, and AF&PA. The information 

submitted by MAER included a 

comprehensive analysis of one CTRT 

sample. The sample came from a CTRT 

pile located at an end-use combustor. 

The URS Corporation report included 

three samples of processed CTRTs from 

the National Salvage facility in Selma, 

Alabama, and from a Stella Jones facility 

in Duluth, Minnesota. AF&PA also 

submitted documents comparing 

contaminant concentrations in CTRTs 

with traditional fuels, compiling data 

from various sources in these 

documents. The EPA considers data 

from these eight facilities to be 

representative of the CTRT universe 

because the composition of the creosote 

component of the CTRTs is the same— 

that is, the P2 blend of creosote, as well 

as the fact that multiple samples have 

been taken in different parts of the 

country at different points in the CTRT 

management chain. 

The section below discusses 

determinations on contaminant 

comparisons in CTRTs to fuel oil and 

biomass. The contaminant data received 

on CTRTs includes information that 

units combusting CTRTs and fuel oil 

may also combust coal; determinations 

regarding contaminant comparisons to 

that traditional fuel follows the 

discussion on fuel oil and biomass. 

Contaminant Comparisons in CTRTs 

to Fuel Oil and Biomass. Table 3 of this 

preamble lists the aggregated CTRT data 

received as it compares to contaminants 

found in two traditional fuels that 

industry claim are used, in varying 

amounts, at facilities burning processed 

CTRTs for energy recovery. 

TABLE 3—CONTAMINANT RANGES IN TRADITIONAL FUELS & CTRT 

[In parts per million] 

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–3.2 

ND 

Beryllium (Be) .......................................................................................... ND–10 ....................... ND–19 ....................... ND–0.3 

Cadmium (Cd) .......................................................................................... ND–17 ....................... ND–1.4 ...................... ND–0.3 

Chromium (Cr) ......................................................................................... ND–340 ..................... ND–37 ....................... ND–15.3 

Cobalt (Co) ............................................................................................... ND–213 ..................... ND–8.5 ...................... ND 

Lead (Pb) ................................................................................................. ND–340 ..................... ND–56.8 .................... ND–9.6 

Manganese (Mn) ...................................................................................... ND–15,800 ................ ND–3,200 .................. 63–185 

Mercury (Hg) ............................................................................................ ND–1.1 ...................... ND–0.2 ...................... 0.02–0.05 

Nickel (Ni) ................................................................................................ ND–540 ..................... ND–270 ..................... ND–38 

Selenium (Se) .......................................................................................... ND–9 ......................... ND–4 ......................... ND–1 

Non-Metal Elements 

Chlorine (Cl) ............................................................................................. ND–5,400 .................. ND–1,260 .................. 22–400 

Fluorine (F) .............................................................................................. ND–300 ..................... ND–14 ....................... 100 

Nitrogen (N) ............................................................................................. 200—39,500 .............. 42–8,950 ................... 1,600–14,400 


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121We note that for several SVOCs—cresols, 

hexachlorobenzene, and 2,4-dinitrotoluene, which 

were expected to be in creosote, and for which 

information was specifically requested in the 

February 7, 2013 NHSM final rule (78 FR 9111), the 

data demonstrate that they were not detectable, or 

were present at levels so low to be considered 

comparable. 

122As discussed previously, the March 21, 2011 

NHSM final rule (76 FR 15456), 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. This final rule differs in several respects 

from the conclusions in the March 2011 rule. This 

final rule concludes that CTRTs are a categorical 

non-waste when combusted in units designed to 

burn both fuel oil and biomass. The March 2011 

Continued 

TABLE 3—CONTAMINANT RANGES IN TRADITIONAL FUELS & CTRT—Continued 

[In parts per million] 

Contaminant Biomass a Fuel oil a CTRT b

Sulfur (S) .................................................................................................. ND–8,700 .................. ND–57,000 ................ 681–3,277 

Volatile Organic Compound (VOC) Hazardous Air Pollutants 

Benzene ................................................................................................... .................................... ND–75 ....................... ND 

Phenol ...................................................................................................... .................................... ND–7,700 .................. ND 

Styrene ..................................................................................................... .................................... ND–320 ..................... ND 

Toluene .................................................................................................... .................................... ND–380 ..................... ND 

Xylenes .................................................................................................... .................................... ND–3,100 .................. 0.325 

Cumene ................................................................................................... .................................... 6,000–8,600 .............. ND 

Ethyl benzene .......................................................................................... .................................... 22–1270 .................... 0.058 

Formaldehyde .......................................................................................... 1.6–27 ....................... .................................... ND 

Hexane ..................................................................................................... .................................... 50–10,000 ................. ND 

15 Additional VOC ................................................................................... .................................... .................................... ND 

Total VOC c ....................................................................................... 1.6–27 ....................... 6,072–19,810 ............ 0.383 

Semivolatile Hazardous Pollutants 

Biphenyl ................................................................................................... .................................... 1,000–1,200 .............. 137–330 

16-PAH d .................................................................................................. .................................... 3,900–54,700 ............ 6641–21,053 

Dibenzofuran ............................................................................................ .................................... .................................... 570–1,500 

Quinoline .................................................................................................. .................................... .................................... 40.2 

Cresols ..................................................................................................... .................................... .................................... 1.51 

Hexachlorobenzene ................................................................................. .................................... ND ............................. ND 

2,4-dinitrotoluene ..................................................................................... .................................... ND ............................. ND 

Lindane .................................................................................................... .................................... .................................... 0.238 

11 Additional SVOC ................................................................................. .................................... .................................... ND 

Total SVOC c ..................................................................................... .................................... 4,900–54,700 ............ 7,618–22,883 

a ‘‘Contaminant Concentrations in Traditional Fuels: Tables for Comparison’’ document available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality 

Planning and Standards (OAQPS). b (1) MA Energy Resources, LLC. February 2013 Crosstie Derived Fuel Petition; (2) URS, Evaluation of Used Railroad Ties Treated with Creosote. Prepared for Association of American Railroads. January 28, 2013; (3) AF&PA, Comparison of Contaminant Concentrations in Crosstie Derived Fuel with Traditional Fuels. February 28, 2013. cTotal VOC and SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because

minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample. d 16-PAH includes: Acenaphthene, acenaphthylene, anthracene, benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(g,h,i)perylene, benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene, fluoranthene, fluorene, indeno(1,2,3-cd)pyrene, naphthalene, phenanthrene, and 

pyrene. 16-PAH is designated as Total PAH in the Table for Comparison cited in note ‘‘a’’ above. 

As shown in Table 3 of this preamble, 

all contaminant concentration levels for 

metals are within the ranges identified 

for fuel oil and biomass. We note that 

when comparing the non-metal 

elemental contaminants, however, 

fluorine and nitrogen levels in CTRTs 

are not comparable to fuel oil, and semivolatile organic compound (SVOC) 

levels are not comparable to biomass. 

Given that CTRTs are a type of treated 

wood biomass, and any unit burning 

CTRTs typically burns untreated wood, 

the EPA considered two scenarios that 

industry described. 

In the first scenario, where a 

combustion unit is designed to only 

burn biomass, the EPA compared 

contaminant levels in CTRTs 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.121 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, a combustion 

unit is designed to burn biomass and 

fuel oil. As previously mentioned, 

fluorine, and nitrogen levels in CTRTs 

are present at elevated levels when 

compared to fuel oil. However, the 

highest levels of fluorine (100 ppm) and 

nitrogen (14,400 ppm) are comparable 

to, or well within the levels of these 

contaminants in biomass. Likewise, 

SVOCs are present in CTRTs (up to 

22,883 ppm) at levels well within the 

range observed in fuel oil (up to 54,700 

ppm). Accordingly, contaminant 

concentration levels for fluorine, 

nitrogen, and SVOCs are within the 

ranges identified for either biomass or 

fuel oil. Therefore, CTRTs have 

comparable contaminant levels to other 

fuels combusted in units designed to 

burn both biomass and fuel oil, and as 

such, meet this criterion if used in 

facilities that are designed to burn both 

biomass and fuel oil.122


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rule, using 1990 data on railroad cross ties, was 

based on contaminant comparisons to coal and 

biomass and not fuel oil. As discussed above, when 

compared to fuel oil, total SVOC contaminant 

concentrations (which would include 

dinitrotoluene and hexachlorobenzene) in CTRTs 

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

fact, the 2012 data referenced in this final rule 

showed non-detects for those two contaminants. 

123 78 FR 9149 states ‘‘If a NHSM does not contain 

contaminants at levels comparable to or lower than 

those found in any [emphasis added] traditional 

fuel that a combustion unit could burn, then it 

follows that discard could be occurring if the 

NHSM were combusted. Whether contaminants in 

these cases would be destroyed or discarded 

through releases to the air, they could not be 

considered a normal part of a legitimate fuel and 

the NHSM would be considered a solid waste when 

used as a fuel in that combustion unit.’’ 

124American Forest and Paper Association and 

American Wood Council’s letter to George Faison, 

EPA. March 7, 2013. EPA–HQ–RCRA–2013–0110– 

003. 125American Forest and Paper Association and 

American Wood Council’s letter to George Faison, 

EPA. March 7, 2013. EPA–HQ_RCRA–2013–0110– 

003. 126The Agency notes that in 2008, information 

was collected from owners and operators of 

combustion units across a wide variety of 

industries, including use of fuel oil, in its 

development of emissions standards for boilers and 

process heaters under section 112 of the Clean Air 

Act. In that context, based on the information 

submitted by industry at the time (including 

petitioners and others), EPA concluded that units 

that combust solid fuels generally used fuel oil or 

natural gas only as a startup fuel and 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. The 

information submitted for the ICR, however, also 

stated that some biomass units may combust fuel 

oil at other times, for example, for transient flame 

stability purposes if they are combusting biomass 

with a high moisture content. The ICR did not state 

the amount of fuel oil being combusted, or whether 

fuel oil was combusted alone or in conjunction with 

solid fuel, such as biomass. Although recent 

information outlined above shows that units do 

combust multiple fuels including CTRTs and fuel 

oil, at the time of the development of the boiler 

MACT, EPA did not have information, including 

information submitted in response to the ICR, 

indicating there are units designed to burn solid 

fuel which commonly switch between combusting 

biomass and fuel oil or otherwise combusted fuel 

oil as part of normal operation. 

127Contaminant levels in coal presented in 

‘‘Contaminant Concentrations in Traditional Fuels: 

Tables for Comparison’’ document available at 

http://www.epa.gov/epawaste/nonhaz/define/pdfs/

nhsm_cont_tf.pdf. Contaminant data drawn from 

various literature sources and from data submitted 

to USEPA, Office of Air Quality Planning and 

Standards (OAQPS). 

As stated in the preamble to the 

February 7, 2013, NHSM final rule, 

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 is 

arbitrary to restrict the combustion for 

energy recovery of NHSMs based on 

contaminant comparison to only one 

traditional fuel if the unit could burn a 

second traditional fuel chosen due to 

such changes in fuel supplies, market 

conditions, power demands or other 

factors. If a unit can burn both a solid 

and liquid fuel, then comparison to 

either fuel would be appropriate. 

In order to make comparisons to 

multiple traditional fuels, units must be 

designed to burn those fuels. If a facility 

compares contaminants in an NHSM to 

a traditional fuel a unit is not designed 

to burn, and that material is highly 

contaminated, a facility would then be 

able to burn excessive levels of waste 

components in the NHSM as a means of 

discard. Such NHSMs would be 

considered wastes regardless of any fuel 

value. (78 FR 9149) 123 Accordingly, the 

ability to burn a fuel in a combustion 

unit does have a basic set of 

requirements, the most basic of which is 

the ability to feed the material into the 

combustion unit. The unit should also 

be able to ensure the material is wellmixed and maintain temperatures 

within unit specifications. 

Available information regarding use 

of fuel oil. As discussed in section 

V.C.2. of this preamble, industry stated 

during the comment period that there 

are combustion units designed to burn 

biomass and fuel oil, but did not 

identify specific units. A March 2013 

letter from AF&PA 124 stated that the 

overwhelming majority of CTRTs 

burned at paper mills are burned in 

boilers that are fully capable and 

permitted to burn at maximum capacity 

rating. Most of these boilers (80 percent) 

can or do burn oil during operating 

conditions outside of startup and 

shutdown periods.125 Industry also 

stated that units operated by end-use 

combustors that utilize CTRTs as an 

alternative fuel typically burn a variety 

of ‘‘traditional fuels,’’ such as coal, 

biomass (i.e., hog fuel, bark fuel, and 

other biomass fuel materials), and fuel 

oil, as well as other materials. They 

stated that all of the units that burn 

CTRTs also burn significant quantities 

of biomass given the similarity of the 

fuels’ characteristics. In addition, most 

of these units are permitted to burn fuel 

oil either during start-up or during 

normal operations. The EPA finds, 

based on this information, units do 

combust multiple fuel including fuel oil 

and CTRTs.126

Contaminant Comparisons to Coal. 

Data received from industry’ included 

information that boilers combusting 

CTRTs may also combust coal, which is 

a traditional fuel. For purposes of 

contaminant comparison to that 

traditional fuel, the EPA considered two 

scenarios. 

In the first scenario, where CTRTs 

were combusted in units designed to 

burn only coal and biomass, 

contaminant levels in CTRTs were 

compared to those two traditional 

fuels.127 In this scenario, as shown in 

Table 4 of this preamble, maximum 

levels of SVOCs in CTRTs (22,883 ppm) 

exceeded those in coal (2,343 ppm) and 

biomass (SVOC levels largely nonexistent). Thus, units that are designed 

to burn only coal and biomass would 

not meet the legitimacy criterion for 

contaminant comparison to CTRTs, an 

indication that discard may be 

occurring. 

In the second scenario, a combustion 

unit is designed to burn coal, biomass 

and fuel oil. As shown in Table 4 of this 

preamble, SVOCs are present in CTRTs 

(up to 22,883 ppm) at levels well 

exceeding those in coal and biomass but 

within the range observed in fuel oil (up 

to 54,700 ppm). Fluorine, and nitrogen 

levels in CTRTs are present at elevated 

levels when compared to fuel oil. 

However, the highest levels of fluorine 

(100 ppm) and nitrogen (14,400 ppm) 

are comparable to, or well within the 

levels of these contaminants in biomass. 

All other contaminants in CTRTs are 

comparable to those in coal. 

Thus, CTRTs can be combusted in 

units burning coal (or other traditional 

fuels), but only if the unit is also 

designed to burn fuel oil and biomass. 

CTRTs have comparable contaminant 

levels in units designed to burn biomass 

fuel oil and coal, and as such, meet this 

criterion if used in facilities that are 

designed to burn those traditional fuels. 

(see also section V.C.6. Response to 

Comments regarding combustion of coal 

in units that switched from fuel oil to 

natural gas). 


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128American Forest and Paper Association and 

American Wood Council—Letter to George Faison, 

EPA March 7, 2013. EPA–HQ–RCRA–0110–003. 

TABLE 4—CONTAMINANT RANGES IN BIOMASS, FUEL OIL, COAL & CTRT 

[In parts per million] 

Contaminant Biomass a Fuel oil a CTRT b Coal 

Metal Elements 

Antimony (Sb) .................................................. ND–26 ....................... ND–15.7 .................... ND ............................. 0.5—10 

Arsenic (As) ..................................................... ND–298 ..................... ND–13 ....................... ND–3.2 ND ................ 0.5–174 

Beryllium (Be) .................................................. ND–10 ....................... ND–19 ....................... ND–0.3 ...................... 0.1–206 

Cadmium (Cd) .................................................. ND–17 ....................... ND–1.4 ...................... ND–0.3 ...................... 0.1–19 

Chromium (Cr) ................................................. ND–340 ..................... ND–37 ....................... ND–15.3 .................... 0.5–168 

Cobalt (Co) ....................................................... ND–213 ..................... ND–8.5 ...................... ND ............................. 0.5–30 

Lead (Pb) ......................................................... ND–340 ..................... ND–56.8 .................... ND–9.6 ...................... 2–148 

Manganese (Mn) .............................................. ND–15,800 ................ ND–3,200 .................. 63—185 ..................... 5–512 

Mercury (Hg) .................................................... ND–1.1 ...................... ND–0.2 ...................... 0.02–0.05 .................. 0.02–31 

Nickel (Ni) ........................................................ ND–540 ..................... ND–270 ..................... ND–38 ....................... 0.5–730 

Selenium (Se) .................................................. ND–9 ......................... ND–4 ......................... ND–1 ......................... 0.2–743 

Non-Metal Elements 

Chlorine (Cl) ..................................................... ND–5,400 .................. ND–1,260 .................. 22–400 ...................... ND–9,080 

Fluorine (F) ...................................................... ND–300 ..................... ND–14 ....................... 100 ............................ ND–178 

Nitrogen (N) ..................................................... 200–39,500 ............... 42–8,950 ................... 1,600–14,400 ............ 13,600–54,000 

Sulfur (S) .......................................................... ND–8,700 .................. ND–57,000 ................ 681–3,277 ................. 740–61,300 

Volatile Organic Compound (VOC) Hazardous Air Pollutants 

Benzene ........................................................... .................................... ND–75 ....................... ND ............................. ND–38 

Phenol .............................................................. .................................... ND–7,700 .................. ND 

Styrene ............................................................. .................................... ND–320 ..................... ND ............................. 1.0–26 

Toluene ............................................................ .................................... ND–380 ..................... ND ............................. 8.6–56 

Xylenes ............................................................ .................................... ND–3,100 .................. 0.325 ......................... 4.0–28 

Cumene ............................................................ .................................... 6,000–8,600 .............. ND 

Ethyl benzene .................................................. .................................... 22–1,270 ................... 0.058 ......................... 0.7–5.4 

Formaldehyde .................................................. 1.6–27 ....................... .................................... ND 

Hexane ............................................................. .................................... 50–10,000 ................. ND 

15 Additional VOC ........................................... .................................... .................................... ND 

Total VOC c ............................................... 1.6–27 ....................... 6,072–19,810 ............ 0.383 ......................... 14.3–125.4 

Semivolatile Organic Compound (VOC) Hazardous Air Pollutants 

Biphenyl ........................................................... .................................... 1,000–1,200 .............. 137–330 

16-PAH d .......................................................... .................................... 3,900–54,700 ............ 6641–21,053 ............. 6–253 

Dibenzofuran .................................................... .................................... .................................... 570–1,500 

Quinoline .......................................................... .................................... .................................... 40.2 

Cresols ............................................................. .................................... .................................... 1.51 

Hexachlorobenzene ......................................... .................................... ND ............................. ND 

2,4-dinitrotoluene ............................................. .................................... ND ............................. ND 

Lindane ............................................................ .................................... .................................... 0.238 

11 Additional SVOC ......................................... .................................... .................................... ND 

PAH (52 extractable) ....................................... .................................... .................................... .................................... 14–2,090 

Total SVOC c ............................................. .................................... 4,900–54,700 ............ 7,618–22,883 ............ 20–2,343 

a ‘‘Contaminant Concentrations in Traditional Fuels: Tables for Comparison’’ document available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality 

Planning and Standards (OAQPS). b (1) MA Energy Resources, LLC. February 2013 Crosstie Derived Fuel Petition; (2) URS, Evaluation of Used Railroad Ties Treated with Creosote. Prepared for Association of American Railroads. January 28, 2013; (3) AF&PA, Comparison of Contaminant Concentrations in Crosstie Derived Fuel with Traditional Fuels. February 28, 2013. cTotal VOC and SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because

minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample. d 16-PAH includes: Acenaphthene, acenaphthylene, anthracene, benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(g,h,i)perylene, benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene, fluoranthene, fluorene, indeno(1,2,3-cd)pyrene, naphthalene, phenanthrene, and 

pyrene. 16-PAH is designated as Total PAH in the Table for Comparison cited in note ‘‘a’’ above. 

Contaminant Information related to 

dibenzofurans and dioxins. As 

discussed above, the Agency requested 

data on dibenzofuran and dioxins, in 

large part because dibenzofuran is 

known to be present in CTRTs and 

listed as a HAP under CAA section 112 

and dioxins are a pollutant under CAA 

sections 112 and 129. 

Industry submitted an explanatory 

document in response to the Agency’s 

request.128 The document provided 

additional information regarding (a) the 

presence of dibenzofuran in creosote 

and creosote-treated wood, and (b) 


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6730 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

129When making contaminant comparisons for 

purposes of meeting the legitimacy criterion, it 

would be appropriate in this circumstance to find 

that grouping of contaminants would not result in 

discard. For example, under the grouping concept, 

individual SVOC levels may be elevated above that 

of the traditional fuel, but the contaminant 

legitimacy criterion will be met as long as total 

SVOCs is comparable to or less than that of the 

traditional fuel. Such an approach is standard 

practice employed by the Agency in developing 

regulations and is consistent with monitoring 

standards under CAA sections 112 and 129. See 78 

FR 9146, February 7, 2013, for further findings that 

relate to the issue of grouping contaminants for 

purposes of determining discard. 

130Petitioner arguments regarding functional 

equivalence and use of CTRTs as a commodity are 

also outlined in Legal Analysis Supporting Listing 

Railroad Tie Fuel as a Nonwaste under 40 CFR 

241.4(a)(January 15, 2014.) American Forest and 

Paper Association. Docket number EPA–HQ– 

RCRA–201–0110–0008. 

131To further support a finding of functional 

equivalency, petitioners submitted data claiming 

that stack emissions of PAHs (PAHs are higher in 

railroad ties than in coal or biomass), are controlled 

in the same way as all organic constituents present 

in the other fuels used by the boilers that combust 

railroad tie fuel. The Air Emissions Impact of 

Burning Railroad Tie-Derived Fuel. NCASI, January 

2014. 

132Petitioners also argued in their December 19, 

2013 background material that high PAH levels in 

fuels are not related to PAH emission levels. They 

state that Boiler MACT carbon monoxide (CO) 

limits ensure good combustion practices by 

minimizing PAHs and other products of incomplete 

combustion (under the Boiler MACT standards, CO 

is a surrogate for organic HAPs such as PAHs). Dry 

fuels such as CTRTs increase heat value of the fuel 

mix improving combustion temperature and 

conditions. 

whether the presence of dibenzofuran is 

associated with the concurrent presence 

of the polychlorinated versions of these 

compounds, viz., polychlorinated 

dibenzo p-dioxins and dibenzofurans 

(PCDD/F—often collectively termed 

dioxins). 

The industry’ data confirms the 

presence of dibenzofurans. Industry 

acknowledged that coal tar creosote 

used in preparing railroad ties may have 

levels of dibenzofuran up to 4.5 percent 

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 stated by the 

industry, 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 

petitioner’s explanation that 

dibenzofuran present in the CTRTs will 

not result in the formation of dioxins, 

but as a HAP itself, dibenzofuran is still 

appropriate to include in the list of 

SVOCs for comparison to traditional 

fuels.129 Regarding dioxins, the 

document shows that dioxins will 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 will not be present in 

CTRTs prior to combustion. 

c. Other Relevant Factors in a 

Categorical Non-Waste Determination 

for CTRTs 

In their request for a categorical 

listing of CTRTs and in background 

information submitted subsequent to 

that request, industry argued that, in the 

context of a specific non-waste 

determination under 40 CFR 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, industry argued 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 nonwaste fuel. They argued that by 

conducting such balancing, the Agency 

could allow CTRTs to be burned as a 

non-waste fuel in any combustion unit 

that can combust biomass, whether or 

not the combustion unit is designed to 

burn fuel oil. Thus, industry requested 

that the Agency re-define or ignore the 

‘‘design to burn’’ concept, as currently 

interpreted for the purposes of this 

categorical listing. 

In arguing that the Agency can redefine or ignore the ‘‘design to burn’’ 

concept, industry identified 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.130 131

• 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 industry 

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.132 As discussed 

previously, units will be switching from 

fuel oil to natural gas. Such units 

designed to combust both fuel oil and 

CTRTs include stoker, bubbling bed and 

fluidized bed boilers. Boilers that have 

burned fuel oil currently or in the past 

will discontinue using fuel oil, however, 

industry argues that they have clearly 

demonstrated the ability to burn that 

material as a product fuel. 

In general, industry argues 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 industry, have been 

managing CTRTs as non-waste fuel, 

irrespective of the type of boiler or 

combustion unit. 

While we agree with industry that the 

agency may list an NHSM categorically 

by balancing the legitimacy criteria 

against other relevant factors (40 CFR 

241.4(b)(5)(ii)), we do not agree that the 

Agency can simply ignore any of the 

legitimacy criteria, particularly the 

contaminant legitimacy criterion. In 

particular, industry argues that any 

biomass material regardless of the 

contaminant or how contaminated it is, 

should be considered a non-waste fuel. 

Purchase of the material as a 

commodity for its fuel value is a factor, 

but not determinative when considering 

whether discard has occurred. Further, 

elevated levels of contaminants 

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 to determine whether 

discard occurs. 

We do not agree with petitioner’s 

claim that CTRTs 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 and are 

combusted in the same units and subject 

to the same air pollution controls. CTRT 

contains contaminants at levels that are 

not comparable to the contaminant 

levels in biomass, the traditional fuel 

the units’ combusting CTRT are 

designed to burn. As discussed, there is 

a limit to the levels of such 

contamination allowed in balancing 

other relevant factors, and elevated 

levels of contaminants remaining in the 

material can show that the material is 

being discarded. Further, all CTRTs are 

not functionally the same as comparable 


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Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 6731 

133Section 112(a)(1) of the CAA defines the term 

‘‘major source’’ to mean any stationary source or 

group of stationary sources located within a 

contiguous area that emit or have the potential to 

emit in the aggregate, 10 tons per year or more of 

any hazardous air pollutant or 25 tons per year or 

more of any combination of hazardous air 

pollutants. 

134The Agency recognizes natural gas as a source 

of clean energy. The burning of natural gas 

produces nitrogen oxides and carbon dioxide, but 

in lower quantities than burning coal or oil. 

Methane, a primary component of natural gas and 

a greenhouse gas, can also be emitted into the air 

when natural gas is not burned completely. 

Similarly, methane can be emitted as the result of 

leaks and losses during transportation. Emissions of 

sulfur dioxide and mercury compounds from 

burning natural gas are negligible. (See http://www.

epa.gov/cleanenergy/energy-and-you/affect/naturalgas.html.) 

traditional fuels since it must be 

processed by reclamation companies to 

remove metals (spikes, nails etc.) and 

shredded into chips to make it suitable 

as a fuel source. 

We also do not agree that 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, February 7, 2013). 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. 

We do agree with industry to a certain 

extent that removal of oil delivery 

mechanisms from units designed to 

combust fuel oil and CTRTs does not 

support a conclusive decision that the 

CTRTs are now being ‘‘discarded.’’ 

While contamination levels may be 

higher when compared to natural gas, 

these particular facilities have 

demonstrated the ability to combust fuel 

oil along with CTRTs and should not be 

penalized for switching to a cleaner 

fuel. As discussed in section V.C.3. of 

this preamble, the information from 

industry stated that while stoker, 

bubbling bed or fluidized bed boilers at 

major source 133 paper mills are 

currently designed to combust both fuel 

oil and CTRTs, few, if any, of these 

units may be combusting both fuel oil 

and biomass in the future since those 

units will be switching from fuel oil to 

natural gas for start-up periods and 

operations. The industry stated that 

continued use of fuel oil during 

operation would result in higher 

compliance costs and higher costs per 

Btu. Industry stated that the switch to 

natural gas for operation requires 

replacement of start-up fuel systems, 

and that the most efficient and least 

emitting start-up systems use 

specialized burners for gas. 

The proposed rule, as noted above, 

outlined the additional approach the 

Agency considered that would include 

as a categorical non-waste, CTRTs that 

are combusted in existing units at major 

source pulp and paper mills that have 

been modified in order to use clean fuel 

such as natural gas, instead of fuel oil. 

The additional approach required that 

such CTRTs only be combusted if 

certain conditions were met (in addition 

to the requirement that the CTRTs had 

been processed) that were intended to 

ensure that the CTRTs are not being 

discarded. Those conditions included in 

the proposal are: The CTRTs must be 

combusted in an existing stoker, 

bubbling bed or fluidized bed boiler; the 

CTRTs can comprise no more than 40 

percent of the fuel used on a monthly 

basis; the boiler that burned the CTRTs 

must have been designed to burn both 

fuel oil and biomass; and the boiler is 

modifying its design to burn natural gas. 

The Agency stated that the approach 

was meant to address only the 

circumstance where fuel oil and 

biomass facilities were modified in 

order to combust natural gas as a fuel for 

normal operations. The facilities in this 

case would have been met the 

legitimacy criteria if they did not switch 

to the cleaner natural gas fuel. The EPA 

now adopts as a final determination the 

reasoning in the proposal that it is 

appropriate for the Agency to decide 

that the switching to the cleaner natural 

gas 134 would not render the CTRT a 

waste fuel. The facilities have 

demonstrated the ability to burn fuel oil 

and biomass and should not be 

penalized for switching to a cleaner 

fuel. The CTRTs do not become wastes 

solely because of the switch to natural 

gas. Information indicating that CTRTs 

are an important part of the fuel mix for 

these units due to the consistently lower 

moisture content and higher Btu value 

as well as the benefits of drier more 

consistent fuel to combustion units with 

significant swings in steam demand 

further show that discard is not 

occurring. 

As noted above, the Agency is 

adopting the additional approach with 

some revisions. Specifically, based on 

comments received and information in 

the rulemaking record, the Agency has 

sufficient information to list as 

categorical non-wastes CTRTs that are 

processed and combusted in units at 

major pulp and paper mills or units at 

power production facilities subject to 40 

CFR 63 Subpart DDDDD (Boiler MACT) 

that combust CTRT and had been 

designed to burn biomass and fuel oil, 

but are modified (e.g., oil delivery 

mechanisms are removed) in order to 

use natural gas instead of fuel oil as part 

of normal operations and not solely as 

part of start-up or shut-down operations. 

The CTRT may continue to be 

combusted as a product fuel only if 

certain conditions are met, which are 

intended to ensure that the CTRTs are 

not being discarded: 

• CTRTs must be combusted in 

existing (i.e., commenced construction 

prior to April 14, 2014) stoker, bubbling 

bed, fluidized bed or hybrid suspension 

grate boilers; and 

• CTRTs can comprise no more than 

40 percent of the fuel that is used on an 

annual heat input basis. 

The standard is applicable to existing 

CTRT units burning CTRTs that had 

been designed to burn fuel oil and 

biomass and have been modified to burn 

natural gas. The standard will also 

apply if an existing CTRT unit designed 

to burn fuel oil and biomass is modified 

at some point in the future. 

The additional approach adopted for 

the final rule addresses only the 

circumstance where contaminants in 

CTRTs are comparable to or less than 

the traditional fuels the unit was 

originally designed to burn (both fuel oil 

and biomass) but that design was 

modified in order to combust natural 

gas. The approach is not a general 

means to circumvent the contaminant 

legitimacy criterion by allowing 

combustion of any NHSM with elevated 

contaminant levels, i.e., levels not 

comparable to the traditional fuel the 

unit is currently designed to burn. The 

particular facilities in this case had used 

CTRTs and would clearly be in 

compliance with the legitimacy criteria 

if they did not switch to the cleaner 

natural gas fuel. EPA determined that it 

is appropriate to balance other relevant 

factors in this categorical non-waste 

determination and that it is appropriate 

for the Agency to decide that the 

switching to the cleaner natural gas 

would not render the CTRTs a waste 

fuel in view of historical usage as a 

product fuel in stoker, bubbling bed, 

fluidized bed and hybrid suspension 

grate boilers. 

Based on comments received on the 

proposed rule, several revisions were 

made in the additional approach for the 

final rule under section 241.7(a): (1) 

CTRTs combusted in units at power 

producers subject to 40 CFR part 63 

Subpart DDDDD (Boiler MACT) were 

added to the categorical listing; (2) the 

40% fuel load limit was changed to an 

annual heat input basis; regulatory 


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6732 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

135See EPA–HQ–RCRA–2013–0110–0076 in the 

docket for this final rule. 

language was added stating that units 

combusting fuel oil and natural gas as 

well as units that had switched from 

fuel oil to natural gas must combust 

these materials as part of normal 

operations and not solely for start-up or 

shut-down operations; and (4) hybrid 

suspension grate boilers are added to 

the list of acceptable boilers and to 

provide further clarity regarding CTRTs 

combusted in ‘‘existing’’ stoker, 

bubbling bed fluidized bed or hybrid 

suspension grate boilers, existing is 

defined as April 14, 2014, the date of 

issuance of the proposed rule. 

See section V.C.6. Response to 

Comments for a further discussion of 

the changes identified above. The 

Agency has also determined that 

recordkeeping requirements under the 

Boiler MACT 40 CFR part 63 at section 

63.7555(d)(2) are sufficient to document 

compliance with these standards. See 

section V.C.6. for a further discussion of 

recordkeeping requirements. 

5. Summary of Comments Requested 

The proposed rule identified several 

issues pertaining to the listing of CTRTs 

as categorical non-wastes and requested 

comment on those issues which are 

summarized below (see also section 

V.C.6 of this preamble): 

Use of Multiple Fuels. The Agency 

requested comments specifically on the 

use of multiple fuels for contaminant 

comparison in evaluating whether to 

categorically list CTRTs, including 

whether fuel oil itself should be one of 

the traditional fuels used for 

comparison given, and any additional 

data that should be considered in 

making the comparability 

determination. 

Additional Approach. Regarding the 

additional approach under 

consideration, the Agency requested 

comment on the approach and the 

following conditions: whether the 

approach should be applied to sources 

at other industries in addition to pulp 

and paper mills (e.g., utilities and cogeneration plants); the appropriateness 

of the 40 percent limit as a percentage 

of fuel used including the monthly or 

yearly basis for the limit; if the 

additional approach is applied to other 

industries, such as utilities, what 

percentage (if any) would be appropriate 

for that industry(s); and whether the 

approach should be subject to 

recordkeeping requirements. 

6. Responses to Comments 

a. Specific Requests for Comment 

i. Use of Multiple Fuels 

Comment: Regarding the use of 

multiple fuels for contaminant 

comparison in evaluating whether to 

categorically list CTRTs, combustion 

units are often designed to burn 

multiple traditional fuels, some relying 

on different fuel types at different times 

based on availability of fuel supplies, 

market conditions, power demands, and 

other factors. It would be arbitrary to 

restrict NHSM combustion for energy 

recovery, based on contaminant 

comparison to only one traditional fuel, 

if that unit could burn a second 

traditional fuel. 

Response: As stated in the preamble 

to the February 7, 2013, NHSM final 

rule, combustors may burn NHSMs as a 

product fuel if they compare 

appropriately to any traditional fuel the 

unit can or does burn. (78 FR 9149) 

Combustion units are often designed to 

burn multiple traditional fuels, and 

some units can and do rely on different 

fuel types at different times based on 

availability of fuel supplies, market 

conditions, power demands, and other 

factors. Under these circumstances, it 

would be arbitrary to restrict the 

combustion for energy recovery of 

NHSMs based on contaminant 

comparison to only one traditional fuel 

if the unit could burn a second 

traditional fuel chosen due to such 

changes in fuel supplies, market 

conditions, power demands or other 

factors. The Agency agrees with the 

commenter and is retaining the 

regulatory standard that CTRTs are 

categorical non-wastes when combusted 

in units designed to burn both fuel oil 

and biomass. 

ii. Additional Approach 

Comment: As the EPA stated 

regarding the additional approach under 

consideration, fuel switching from oil to 

natural gas is not evidence of any 

motivation to discard CTRTs and should 

not affect the classification of CTRTs as 

non-solid waste for combustion 

purposes. The modification has nothing 

to do with the properties of CTRTs or 

the burning of CTRTs for energy 

recovery, but is due to unrelated market 

conditions for fuel oil and natural gas. 

The listing should not be limited to only 

units ‘‘that are currently designed to 

burn both biomass and fuel oil but are 

changing (i.e., removing oil delivery 

equipment) in order to burn natural 

gas.’’ There is no rational basis for this 

limitation on unit type and it is unclear 

why the EPA limits this proposed 

‘‘expansion.’’ 

The EPA should also include units 

that have already switched from fuel oil 

to natural gas or are currently being 

modified to switch from fuel oil to 

natural gas, in addition to those that 

will switch from fuel oil to natural gas 

in the future. Many pulp and paper 

mills formerly combusted fuel oil, but 

have already moved or are moving away 

from fuel oil to natural gas. The EPA’s 

rationale applies equally in each case. 

Moreover, if the EPA retains the 

limitation on the types of boilers at pulp 

and paper mills that can combust 

CTRTs under the expanded listing, 

hybrid suspension grate boilers should 

be added to that list because they are 

similar to the listed boilers and combust 

CTRTs, as well as other biomass fuels. 

Response: The Agency has 

determined that the additional approach 

must be limited to units that are 

currently designed to burn both biomass 

and fuel oil but are modified (e.g., 

removed oil delivery mechanisms) in 

order to burn natural gas as part of 

normal operations and not solely as part 

of start-up or shut-down operations. As 

discussed above, the particular facilities 

in this case have used CTRTs and would 

clearly be in compliance with the 

legitimacy criteria if they did not switch 

to the cleaner natural gas fuel. It is 

appropriate to balance other relevant 

factors in this categorical non-waste 

determination and it is appropriate for 

the Agency to decide that the switching 

to the cleaner natural gas would not 

render the CTRTs a waste fuel in view 

of the historical usage as a product fuel 

in the stoker, bubbling bed, and 

fluidized bed boilers. The nature of the 

CTRTs as a product fuel does not make 

it a waste on switching to the cleaner 

natural gas for the boiler. 

Thus, combustion of CTRTs in boiler 

units in the sectors identified above that 

are designed to burn both biomass and 

fuel oil but have been modified to burn 

biomass and natural gas should not be 

considered discard. The additional 

approach is meant to address only the 

circumstance where contaminants in 

CTRTs are comparable to or less than 

the traditional fuels the unit was 

designed to burn (both fuel oil and 

biomass) but that design has been 

modified in order to combust natural 

gas. The approach is not a general 

means to circumvent the contaminant 

legitimacy criterion by allowing 

combustion of any NHSM with elevated 

contaminant levels, i.e., levels not 

comparable to the traditional fuel the 

unit is currently designed to burn. 

Based on information from industry 

that in addition to stoker, bubbling bed 

and fluidized bed boilers, hybrid 

suspension grate (HSG) boilers also 

combust CTRT,135 the Agency is 

extending the additional approach to 

CTRT combusted in HSG boilers. The 


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136http://www.rta.org/assets/docs/RTASponsored

Research/Environmental/creosote%20tie%20

evaluation%20article%20_4_.pdf. 

137See docket comment EPA–HQ–RCRA–2013– 

0110–0082. 

138 40 CFR 241.2 defines power producer as a 

boiler unit producing electricity for sale to the grid. 

The term does not include units meeting the 

definition of electricity generating unit under 40 

CFR 63.10042 of the Utility Mercury and Air Toxics 

Standards rule. 

Agency notes, however, that use of that 

boiler type for combustion of CTRT as 

the primary fuel may be limited. Review 

of HSG boilers in the Boiler MACT 

Database (ICR No. 2286.01) (Version 4), 

indicates that all of the boilers in the 

HSG subcategory fire bagasse fuels as 

the primary fuel, and none report 

routine firing of other types of biomass 

fuels or CTRTs. When the EPA finalized 

the HSG subcategory (76 FR 15634, 

March 21, 2011) the rationale for adding 

the subcategory was that for 

combustion-related pollutants (used as a 

surrogate for organic HAP emissions), 

the design differences for such hybrid 

suspension grate boilers are significant, 

and combustion conditions in these 

types of units are not similar to those in 

dutch ovens or true suspension burners 

that combust fine, dry fuels. The 

rationale was provided solely in the 

context of hybrid suspension/grate 

boilers designed to combust very wet 

biomass fuels such as bagasse. Bagasse 

fuels have a moisture content ranging 

between 40 and over 60 percent 

moisture content. By contrast, CTRTs 

have a moisture content of 20 percent 

on average.136

On November 5th, 2015, EPA signed 

a final reconsideration for the Boiler 

MACT. In that action, the definition of 

the HSG subcategory was modified to 

require demonstration of the 40 percent 

moisture level (as-fired basis) using 

monthly fuel analysis, instead of a 40 

percent moisture level on an annual 

average heat input basis. The addition of 

the monthly requirement will require 

consistently high moisture contents of 

the fuels fired in HSG boilers thus 

limiting the use of the drier CTRT. 

Comment: The EPA’s proposed 

approach should not include conditions 

specifying a CTRT fuel use limit of 40 

percent on a monthly basis for the clean 

fuel modified unit listing (i.e., CTRTs 

combusted in units at major source pulp 

and paper mills that are being modified 

in order to use clean fuel such as natural 

gas, instead of fuel oil). There is no 

rational basis for this limitation, since a 

percentage cap has nothing to do with 

whether or not a material is discarded, 

and the EPA did not demonstrate that 

this limit would provide any greater 

environmental protection. In addition, 

the EPA should not limit the clean fuel 

modified unit category to units located 

only at major source pulp and paper 

mills. There is no reason why this 

should be an industry-specific 

provision. A number of biomass boilers 

in both the forest products and biomass 

power industries rely on CTRT fuel, and 

the EPA has information in the record 

showing that a variety of other industry 

sectors currently combust railroad ties, 

including utilities and chemical 

manufacturing facilities. 

Response: The Agency is adopting the 

conditions under the additional 

approach intended to ensure that the 

CTRTs are not being discarded, 

including the condition that CTRTs can 

comprise no more than 40 percent of the 

fuel used on an annual heat input basis. 

While this commenter disagreed on the 

proposed 40 percent limit on use of 

CTRTs in units that were once designed 

to burn fuel oil but do not any longer, 

we note that other commenters 

expressed support for this approach.137

As discussed in footnote 114, statements 

from the pulp and paper industry 

indicate that CTRTs generally comprise 

40% of the total fuel load. EPA also 

reviewed information from the Boiler 

MACT database as well as similar 

information obtained for CISWI units, 

and noted that the reported annual heat 

input rates for CTRTs for units that 

reported firing this material did not 

exceed 13 percent. Considering that 

CTRTs have elevated contaminants 

compared to biomass and natural gas, 

allowing a fuel usage percentage greater 

than industry has typically used 

previously could be indicative of 

discard. Therefore, the Agency is 

maintaining the 40 percent usage 

limitation as a reasonable condition for 

the categorical non-waste determination 

for CTRTs in units that have been 

modified to burn biomass and natural 

gas instead of biomass and fuel oil. 

We have also determined that the 

annual heat input basis is the 

appropriate measure for facilities to use 

instead of the proposed monthly basis. 

Several commenters stated that facilities 

already measure and keep records on an 

annual basis, and we have noted that 

the subcategory applicability records 

required by the major source boiler 

NESHAP are on an annual heat input 

basis as well. Thus this approach 

maintains consistency with other 

recordkeeping requirements required 

under other rules and practices already 

in place. 

This non-waste determination 

approach is also extended to CTRTs 

combusted in units at power production 

facilities subject to 40 CFR part 63 

Subpart DDDDD (Boiler MACT) in 

addition to major source pulp and paper 

mills. The information sources cited 

above indicate that these types of units 

may combust both CTRTs and fuel oil. 

The sources did not show that chemical 

manufacturing facilities combust both 

types of fuels, thus these facilities were 

not included in the categorical nonwaste determination for units that have 

been modified to burn biomass and 

natural gas instead of biomass and fuel 

oil.138

Comment: With regard to whether 

combustors should be required to keep 

records that the conditions for burning 

of CTRTs described above have been 

met, and the additional recordkeeping 

requirements to show that the 

conditions in the additional approach 

are met, are unnecessary. Any potential 

issues should already be adequately 

addressed by the recordkeeping 

provisions already in place in 

applicable Boiler MACT and NSPS 

requirements, state and local regulatory 

requirements, and facility permits. 

Further, the existence of a record does 

not demonstrate whether or not discard 

is occurring under RCRA. The EPA 

should continue to rely on the recordkeeping requirements under the Clean 

Air Act rules. 

Other commenters supported such 

recordkeeping requirements, explaining 

that the EPA and/or delegated state or 

local air agencies will have no way to 

ensure compliance with the conditions 

without requiring recordkeeping. If 

required, recordkeeping should be 

streamlined with air quality 

requirements, in other words, one 

system may support the NHSM 

determination and air pollution control 

requirements. 

Response: The Agency has concluded 

that additional specific recordkeeping 

requirements are not required to 

determine compliance with the 

additional approach. Current 

recordkeeping requirements for boilers 

under 40 CFR 63.7555 require 

documentation that the material is listed 

as a categorical non-waste under 

§ 241.4(a) of this chapter, which would 

include records demonstrating 

adherence to any conditions applied to 

the categorical non-waste 

determination, such as the 40 percent 

annual heat input limitation. 

b. Additional Comments 

Comment: The EPA should expand 

this additional approach to allow the 

combustion of CTRTs in biomass 

boilers, and specifically, biomass boilers 

that have already or in the future will 

convert from coal to biomass. The 


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6734 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

139See 78 FR 9154. 

140See 76 FR 15494. 

conversion of a unit from coal to 

biomass reduces the steam generation 

capacity compared to the original 

design. A portion of a higher Btu fuel 

(such as CTRTs) is incorporated into the 

mix to make the conversion successful. 

It is environmentally preferable to 

avoid the use of coal or fuel oil for that 

higher Btu fuel, and the EPA shouldn’t 

discourage facilities from switching to 

biomass by not allowing the co-firing of 

CTRTs. The EPA can balance other 

factors against the contaminant 

legitimacy criterion, and the 

environmental benefits of coal-tobiomass conversion are a relevant factor 

to be considered. 

Many biomass boilers in the forest 

products industry rely on CTRT fuel but 

are not current or former users of either 

oil or coal. CTRT is a significant fuel for 

a number of biomass plants and will 

become increasingly important as 

facilities are forced to secure feedstocks 

from non-forest product sources. 

The biomass power industry operates 

with mostly grid-connected standalone 

power plants which use organic 

materials in the production of energy. 

These commenters reported that 20–35 

percent of the organic materials used in 

these facilities are CTRTs, stressing that 

CTRTs enhance boiler performance and 

efficiency, and are therefore valuable to 

these facilities because of their high 

BTU value, low moisture content, and 

low ash. 

Biomass power facilities may also be 

subject to Renewable Portfolio 

Standards which provide states with a 

mechanism to increase renewable 

energy generation. Such programs 

require energy utilities to supply a 

minimum amount of customer load 

from eligible renewable energy sources, 

such as biomass rather than fossil fuel 

sources such as fuel oil. 

Response: The Agency recognizes the 

importance of CTRTs as a fuel to the 

biomass power industry and to boilers 

designed specifically for the use of 

biomass as a fuel. Indeed, there may be 

environmental benefits to allowing 

CTRT use. The statutory requirement 

under RCRA, however, is to determine 

whether the material is a waste when 

burned as a fuel. The environmental and 

efficiency benefits, moreover, would 

accrue if the facilities were burning 

under CAA 112 or 129. Thus, most of 

the policy arguments propounded by 

the comment may be valid but not 

necessarily relevant to whether material 

is discarded. 

The key for the facilities discussed in 

the comment is the use of both fuel oil 

and biomass as fuels that the facilities 

are designed to burn. Since the 

comment discusses facilities that do not 

use fuel oil in their fuel mix now or in 

the past, they do not meet legitimacy 

criteria for contaminant comparison and 

will not be eligible for the categorical 

listing regarding CTRTs. Under these 

conditions, the CTRTs have been 

discarded when they are burned as a 

fuel. 

Comment: The EPA’s proposal 

included the combustion of CTRTs as a 

non-waste fuel, and stressed that these 

materials are a valuable commodity and 

a legitimate alternative fuel. However, 

combustion of CTRTs should not be 

limited to only units ‘‘designed to burn 

biomass and fuel oil.’’ Such limitations 

may be necessary when evaluating caseby-case NHSMs against the legitimacy 

criteria, but, they are not appropriate for 

the categorical listing of a non-waste 

fuel. For example, in listing TDF (tirederived fuel) as a categorical non-waste 

fuel, the EPA compared the 

contaminants in scrap tires to the 

contaminants in coal, which was 

considered the traditional fuel that TDF 

typically replaces, to satisfy the third 

legitimacy criterion. However, it is 

important to note that no ‘‘designed to 

burn’’ conditions are included in the 

categorical non-waste listing for TDF. 

TDF are NHSMs that are categorically 

not solid waste when used as fuel in a 

combustion unit. Therefore, the 

specification of ‘‘designed to burn’’ 

conditions associated with the proposed 

non-waste fuel listing for CTRTs is 

inconsistent with previous rulemakings 

and non-waste fuel determinations. 

The ‘‘designed to burn’’ condition was 

intended to determine which traditional 

fuels should be the basis of comparison 

for the contaminant levels in the 

material under evaluation as a 

non-waste fuel, not to put limitations on 

the use of the NHSM as non-waste fuel. 

As the EPA stated ‘‘the reason we 

analyze what a unit is designed to burn 

is to decide the traditional fuel(s) to 

which contaminants should be 

compared. This comparison is then used 

as an aid to decide whether the NHSM 

is being legitimately used as a fuel or 

whether excess contaminants show that 

the burning is waste treatment’’ (78 FR 

9149). 

Response: The Agency disagrees that 

designed to burn conditions or 

limitations are inappropriate for 

categorical non-waste determinations. 

Further, the commenter’s argument as to 

why the ‘‘designed to burn’’ condition 

should not put limitations on the use of 

the NHSM as non-waste fuel is unclear. 

The purpose of the designed to burn 

condition is to ensure a facility is not 

combusting CTRTs as a means of 

discard. Discard would be occurring if 

the unit is not designed to burn CTRTs 

with elevated levels of PAHs. As 

discussed in section V.C.4. of this 

preamble, to meet legitimacy criteria 

and ensure discard is not occurring, any 

categorical non-waste (as well as 

materials determined to be non-waste 

on a case-by-case basis) must contain 

contaminants or groups of contaminants 

at levels comparable in concentration to 

or lower than those in the traditional 

fuel(s) which the combustion unit is 

designed to burn (40 CFR 

241.3(d)(1)(iii), 40 CFR 241.4(b)). If a 

facility compared contaminants to a 

traditional fuel that the unit is not 

designed to burn, and the fuel is highly 

contaminated, combustion of that fuel 

would be considered discard. 

As further discussed in section V.C.4. 

of this preamble, for CTRTs, the Agency 

considered traditional fuel contaminant 

comparison information for biomass, 

fuel oil and coal. To meet the 

contaminant legitimacy criterion, the 

Agency determined that CTRTs must be 

combusted in units designed to burn 

biomass and fuel oil due to elevated 

levels of SVOCs, or as described, above 

in specific industry facilities that have 

switched from burning fuel oil and 

biomass to natural gas and fuel oil. 

Units designed to burn both biomass 

and fuel oil may, in addition, burn coal 

or other traditional fuels if the unit is 

also designed to burn that material. 

With respect to the comment’s view of 

the TDF categorical listing, the EPA first 

notes that that listing has not been 

reopened for any comment. Regardless, 

the EPA disagrees with the comment 

that there is no designed to burn 

provision in the categorical listing. Any 

categorical listing imposes a 

requirement that legitimacy criteria 

must be met, as is the case for any 

material burned as a fuel in order to be 

burned as a product fuel. Facilities that 

are not designed to burn coal may not 

burn TDF because they will be burning 

a ‘‘dirtier’’ fuel than would normally be 

burned by the facility. While a separate 

case-by-case determination regarding 

contaminants does not have to be made, 

TDF may not be burned in an oil or gasfired facility under CAA section 112. In 

such a case there would be substantial 

burning of waste contaminants, which 

would result in the application of CAA 

section 129 standards. 

The categorical listing for tires was 

based on the determination made in the 

March 21, 2011 rule (76 FR 15456) that 

TDF had contaminants at levels 

comparable to or less than coal, the 

traditional fuel which TDF would 

replace.139 140 The Agency did not 


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Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 6735 

141We note that for several SVOCs—cresols, 

hexachlorobenzene, and 2,4-dinitrotoluene, which 

were expected to be in creosote, and for which 

information was specifically requested in the 

February 7, 2013 NHSM final rule (78 FR 9111), the 

data demonstrate that they were not detectable, or 

were present at levels so low to be considered 

comparable. 

receive information on contaminant 

comparisons to other traditional fuels 

besides coal. It is not necessary for the 

EPA to repeat the importance of the 

legitimacy criteria in every provision in 

its regulations. 

Comment: Seven boilers at a facility 

are built and designed as biomass 

boilers, and use fossil fuels for startup 

and flame stabilization. However, only 

three of the boilers are permitted and 

equipped to burn fuel oil, and the 

remaining units are permitted and 

equipped to use natural gas. The 

categorical listing of CTRTs as a nonwaste fuel in units designed to burn fuel 

oil would only allow listing CTRTs as 

a fuel for one of its facilities (three 

boilers), while being a waste in the 

others, despite each of the units being 

designed to burn primarily solid fuels 

such as CTRT. 

CTRTs should be allowed to be used 

as a fuel in units designed, built and 

operated to burn biomass, provided that 

the units are operated in compliance 

with their air permit regardless of their 

capacity to burn fuel oil. These units are 

designed to burn solid fuels, and CTRTs 

are a solid fuel. Requiring boilers to be 

equipped with fuel oil delivery systems 

would result in unnecessary permitting 

and burden with no environmental 

benefit. The commenter further notes 

that the EPA’s concerns on combustion 

by-products and PAH are best addressed 

through air permitting. 

Response: The Agency does not agree 

that CTRTs should be allowed to be 

used as a fuel in units designed to burn 

only biomass. In order to legitimately 

combust CTRTs, the unit must be 

designed to burn both biomass and fuel 

oil. As stated in section V.C.4.b.iii., of 

this preamble, where a combustion unit 

is designed to only burn biomass, the 

EPA compared contaminant levels in 

CTRTs to contaminant levels in 

biomass. In this scenario, the total 

SVOC levels can reach 22,883 ppm, 

driven by high levels of PAHs and, to 

a lesser extent, the levels of 

dibenzofuran and biphenyl.141 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. Thus, if a unit combusts 

CTRTs and the unit is designed to burn 

only biomass, the unit would be able to 

burn excessive levels of contaminants, 

which would be waste components. 

This would constitute discard. 

The Agency also disagrees that 

because the units are operated in 

compliance with the air permits, the 

units should be allowed to burn CTRTs 

regardless of the capacity to burn fuel 

oil. The determination whether CTRTs 

are a waste or a non-waste and, thus, 

whether CTRTs can be combusted in a 

particular unit is made prior to 

combustion of the material. Emission 

standards, either CAA section 112 or 

CAA section 129, are applied through 

the permit based on the waste-nonwaste determination. The concept of the 

NHSM rule is to determine whether 

particular materials should be burned as 

waste fuels or product fuels, while the 

air permit emission standards help 

ensure protection of human health and 

the environment for burning of the 

NHSM in the unit. 

Comment: The EPA has stated that 

‘‘information indicating that CTRTs are 

an important part of the fuel mix due to 

the consistently lower moisture content 

and higher Btu value, as well as the 

benefits of drier more consistent fuel to 

combustion units with significant 

swings in steam demand, further suggest 

that discard is not occurring’’ (79 FR 

21028). This statement supports the 

determination that CTRTs are 

functionally equivalent to traditional 

fuels they replace. 

When balanced against the 

contaminant legitimacy criterion it 

should outweigh any implication the 

EPA is inferring from the PAH levels 

that discard is occurring. CTRTs may 

have higher concentrations of such 

semi-volatile organic compounds in 

comparison to biomass, but the EPA 

should give more weight to other factors 

demonstrating that CTRTs are fuel 

rather than waste (such as the 

long-standing practice of purchasing 

CTRTs as a viable fuel source for 

boilers). 

EPA also stated in the December 2011 

preamble (76 FR 80471) that ‘‘certain 

NHSMs may not meet the legitimacy 

criteria, especially the ‘contaminant 

legitimacy criterion,’ in all instances, 

but the material would still generally be 

considered a non-waste fuel.’’ It is 

appropriate to balance the legitimacy 

criteria and other relevant factors in 

determining that a NHSM is not a solid 

waste when used as a fuel in a 

combustion unit. The motivation of the 

combustor is a significant factor that 

should be considered in a non-waste 

determination. CTRTs are generally 

purchased under contracts to provide a 

reliable, cost-effective fuel source, rather 

than burned to destroy a group of 

contaminants. Use of CTRTs are 

important in reducing carbon dioxide 

emissions, maintaining capacity for 

managing agricultural biomass and 

urban wood, and the continued 

economic viability of many facilities as 

relevant factors for the EPA to balance 

with the contaminant legitimacy 

criterion. 

Response: In the first instance, the 

EPA must correct the comment’s 

statement that materials are either fuels 

or wastes. The very basis of the EPA’s 

NHSM rule is that we need to determine 

whether materials burned as fuels are 

wastes or products. The fact that the 

Agency agrees that material is a good 

fuel does not mean it is a product fuel. 

All legitimacy criteria must be met. 

Further, the EPA disagrees that 

elevated PAH levels should not compel 

the conclusion that CTRTs can only be 

combusted as product fuels in units 

designed to burn fuel oil or in existing 

units that had combusted fuel oil in the 

past and switched to a cleaner natural 

gas fuel. As discussed in the February 

7, 2013 final rule and the proposed rule 

(79 FR 21027), the Agency can list an 

NHSM categorically by balancing the 

legitimacy criteria against other relevant 

factors (40 CFR 241.4(b)(5)(ii)) as is 

done for CTRTs combusted in existing 

units that had switched to natural gas. 

However, balancing does not mean the 

Agency can simply ignore any of the 

legitimacy criteria no matter the type of 

levels or contaminants because the 

material is a source of fuel with higher 

Btu value and low moisture. In the case 

of CTRTs, to the extent that a 

combustion unit was never designed to 

burn fuel oil and biomass, the 

traditional fuels that are most 

comparable to CTRTs, the Agency 

would be allowing toxic contaminants 

that are present in the CTRTs several 

orders of magnitude higher than what is 

found in the traditional fuel. While the 

Agency recognizes that other relevant 

factors, including purchase of the 

material as a commodity for its fuel 

value, may be considered when one of 

the legitimacy criteria are not met, we 

do not agree that consideration of such 

factors would allow the EPA to 

undermine the legitimacy criterion if it 

is inconsistent with the concept of 

discard. 

By adopting the approach suggested 

by the commenters, the Agency would 

be allowing any biomass-based material 

that is significantly contaminated to be 

burned in any combustion unit, 

including residential and commercial 

boilers. We also do not agree with 

petitioner’s claim that CTRTs are 

functionally the same as other 


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6736 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

142Contaminant levels in coal presented in 

‘‘Contaminant Concentrations in Traditional Fuels: 

Tables for Comparison’’ document available at 

http://www.epa.gov/epawaste/nonhaz/define/pdfs/

nhsm_cont_tf.pdf. Contaminant data drawn from 

various literature sources and from data submitted 

to USEPA, Office of Air Quality Planning and 

Standards (OAQPS). 

143As discussed previously, the March 21, 2011 

NHSM final rule (76 FR 15456), 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. This final rule differs in several respects 

from the conclusions in the March 21, 2011 rule. 

This final rule concludes that CTRTs are a 

categorical non-waste when combusted in units 

designed to burn both fuel oil and biomass. The 

March 21, 2011 rule, using 1990 data on railroad 

cross ties, was based on contaminant comparisons 

to coal and biomass and not fuel oil. As discussed 

above, when compared to fuel oil, total SVOC 

contaminant concentrations (which would include 

dinitrotoluene and hexachlorobenzene) in CTRTs 

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

fact, the 2012 data referenced in this final rule 

showed non-detects for those two contaminants. 

comparable traditional fuels. Unlike 

traditional fuels, CTRTs must be 

processed by reclamation companies to 

remove metals (spikes, nails etc.) and 

shredded into chips to make it suitable 

as a new fuel product. 

Comment: Cement kilns can utilize a 

wide variety of fuels and should be 

included as an acceptable fuel end-user 

for CTRT non-waste fuels. If the EPA 

retains the ‘‘designed-to-burn’’ 

condition, the EPA should state that a 

source that burns coal and fuel oil, such 

as cement kilns, also qualifies for the 

use of CTRTs as a categorically exempt 

non-waste NHSM. Currently, a source 

with a combustion unit that 

predominantly burns coal and fuel oil 

has to infer that the categorical nonwaste NHSM exemption for CTRTs 

applies based on Footnote 96 (79 FR 

21025, April 14, 2014). More clarity 

would be present if the exemption 

specifically referenced coal, coke, 

biomass, and fuel oil fired combustion 

units. 

Response: The Agency notes first that 

the comment is in error by 

characterizing the listing of CTRTs as a 

categorically ‘‘exempt’’ non-waste. Such 

determinations are not exempting those 

materials from the solid waste definition 

under the RCRA. The part 241 standards 

overall determine whether materials are 

solid wastes under the RCRA and must 

be combusted in units meeting CAA 129 

standards, or not solid wastes under the 

RCRA, and can be combusted in units 

meeting CAA 112 standards. This rule 

determines whether or not materials are 

categorical non-wastes. At no point is 

the EPA ‘‘exempting’’ or ‘‘excluding’’ 

material from the solid waste definition. 

The Agency agrees that more clarity is 

needed regarding combustion of CTRTs 

in units designed to burn coal in 

addition to biomass and fuel oil 

(information was not received by the 

Agency regarding coke). Footnote 96 in 

the proposal, cited by the commenter, 

stated that units designed to burn both 

biomass and fuel oil may, in addition, 

burn coal if the unit is also designed to 

burn that material and still be eligible 

for the categorical non-waste 

determination. Cement kilns are an 

example of a combustor that may have 

the ability to combust all fuels (see also 

discussion on cement kilns in C&D 

wood in section V.A.5. of this 

preamble). 

To provide additional clarity 

regarding units designed to burn coal, 

fuel oil and CTRTs, the footnote was 

deleted, and an expanded explanation 

was provided in section V.C.4. of this 

preamble stating that the EPA 

considered two scenarios for units that 

combust CTRTs, fuel oil and coal. For 

purposes of contaminant comparison to 

that traditional fuel, the EPA considered 

two scenarios. 

In the first scenario, where CTRTs 

were combusted in units designed to 

burn only coal and biomass, 

contaminant levels in CTRTs were 

compared to those two traditional 

fuels.142 In this scenario, maximum 

levels of SVOCs in CTRTs (22,883 ppm) 

exceeded those in coal (2,343 ppm) and 

biomass (SVOC levels largely nonexistent). Thus, units that are designed 

to burn only coal and biomass would 

not meet the legitimacy criterion for 

contaminant comparison to CTRTs. This 

shows that discard is occurring. 

In the second scenario, a combustion 

unit is designed to burn coal, biomass 

and fuel oil. SVOCs are present in 

CTRTs (up to 22,883 ppm) at levels well 

exceeding those in coal and biomass but 

within the range observed in fuel oil (up 

to 54,700 ppm). As previously 

mentioned, fluorine, and nitrogen levels 

in CTRTs are present at elevated levels 

when compared to fuel oil. However, 

the highest levels of fluorine (100 ppm) 

and nitrogen (14,400 ppm) are 

comparable to, or well within, the levels 

of these contaminants in biomass. All 

other contaminants in CTRTs are 

comparable to those in coal. Thus, 

CTRTs can be combusted in units 

burning coal, but only if the unit is also 

designed to burn fuel oil and biomass. 

CTRTs have comparable contaminant 

levels in units designed to burn 

biomass, fuel oil and coal, and as such, 

meet this legitimacy criterion if used in 

facilities that are designed to burn those 

traditional fuels.143

In addition to units combusting 

biomass, fuel oil and coal, consistent 

with the discussion above, CTRTs also 

can be combusted in units at major pulp 

and paper mills and in units at power 

production facilities subject to the 

Boiler MACT that had been designed to 

burn biomass, fuel oil and coal but were 

modified (e.g., oil delivery equipment 

removed) in order to use natural gas 

instead of fuel oil. The CTRT may 

continue to be combusted as a product 

fuel only if certain conditions were met, 

described above, which are all intended 

to ensure that the CTRTs are not being 

discarded. 

Comment: Start-up and shut down 

operating scenarios are sufficient to 

demonstrate a source’s ability to meet a 

designed to burn criteria for fuel oil. Not 

including those scenarios is not 

supported by previous U.S. EPA policy 

nor by the language in 40 CFR 

241.3(d)(1)(iii), which includes the 

phrase ‘‘. . . may choose a traditional 

fuel that can be or is burned in the 

particular type of combustion unit . . .’’ 

The EPA’s use of ‘‘can be’’ is 

inconsistent with the language in the 

preamble: ‘‘We would like to make clear 

that the Agency would consider units to 

meet this requirement if the unit 

combusts fuel oil as part of the normal 

operations and not solely as part of 

start-up or shut down operations.’’ The 

EPA should restate this sentence as ‘‘We 

would like to make clear that the 

Agency would consider units to meet 

this requirement if the unit can combust 

fuel oil as part of the normal operations 

which includes periods of start-up or 

shut down operations.’’ 

Response: The Agency disagrees that 

start-up and shut-down of sources is 

considered normal operations for the 

purposes of determining whether a unit 

is designed to burn a traditional fuel 

used for contaminant comparison. With 

regard to meeting the design to burn 

criteria, the Agency considers normal 

operations to be a unit that contains 

burners capable of firing fuel oil as the 

primary fuel during periods of steady 

state operations or periods where the 

fired oil is used as a supplemental fuel 

to maintain consistent heat input during 

steady state operations. Specific 

regulatory language is added in this 

final rule to clarify that the listing 

applies only to units designed to burn 

both biomass and fuel oil as part of 

normal operations and not just start-up 

and shut-down operations, as well as 

units at major source pulp and paper 

mills or power producers that were 

modified (e.g., oil delivery mechanisms 

were removed) in order to use natural 

gas as part of normal operations and not 

just start-up and shut down operations 

(see section 241.4(a)(7)). 


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144 Included in the docket for this final rule. 

145See also discussion under Comments and 

Information Received on Other Types of Treated 

Wood section V.A.6.c. 

Comment: The EPA should expand 

the definition of CTRTs to include ties 

dual treated with creosote and borate. 

As proposed, the definition is limited to 

railway support ties treated with a wood 

preservative containing creosols and 

phenols and made from coal tar oil. 

CTRTs may also be treated with a 

combination of borate and creosote. Use 

of borate-based compounds has recently 

become prevalent for the protection of 

railroad crossties. Use of borate allows 

for treatment of the inner layers of wood 

(or heartwood), while creosote typically 

only treats sapwood. Encapsulating the 

borate-treated crosstie with creosote 

adds a hydrophobic outer layer of 

protection and a barrier that repels 

white-rot fungi. Borate treatment also 

reduces the amount of creosote that 

needs to be used in crossties. 

The EPA has already reviewed data 

that demonstrates that the levels of 

contaminants in borate-treated wood are 

comparable to those found in 

unadulterated wood. The December, 

2013, data submitted to the EPA by the 

Treated Wood Council,144 demonstrate 

that wood dual treated with both borate 

and creosote has lower PAH levels (and 

lower metals levels) than wood that is 

treated with creosote alone. 

Furthermore, the combination of 

creosote and borate is not expected to 

yield unwanted synergistic chemical 

reactions, based on one example of a 

patented process that treats wood 

simultaneously using a blended solution 

of creosote and borate. 

Because the EPA has already 

established that CTRTs meet the other 

two legitimacy criteria (managed as a 

valuable commodity and having 

meaningful heat value), all three 

legitimacy criteria are met for boratetreated wood. As such, ties treated with 

a combination of creosote and borate 

also meet the criteria and should be 

included in this rulemaking. 

Various consequences may arise if the 

EPA fails to include dual-treated ties in 

the non-waste listing. First, the utility of 

the CTRT non-waste listing would be 

short-lived, as most newer ties are 

treated with borate as well as creosote. 

Secondly, because borate is typically 

applied first and then covered with 

creosote treatment, suppliers will 

struggle to distinguish between the two 

types of ties. Although these newer ties 

are likely to be in service currently, 

when they need to be replaced they 

would likely be processed with 

creosote-only-treated ties, this would 

create uncertainty regarding the waste 

status of all railroad ties, and the CTRT 

processing industry would be adversely 

affected. 

Some CTRT business partners are 

evaluating investments in new CTRT 

processing facilities that are located 

closer to the facilities that combust 

them, in order to address transportation 

costs, but these partners would have 

stranded assets when dual-treated ties 

begin to be removed from service, and 

the uncertainty would prevent 

investments from being made. 

Response: The EPA disagrees that the 

definition of CTRTs should be expanded 

to include dual treated creosote and 

borate ties (dual-treated ties) based on 

the data received. Unlike CTRTs, the 

December 2013 data for dual-treated ties 

cited above was limited to a single data 

point.145 A single data point does not 

provide enough information that the 

data analyzed are truly representative of 

the category of material under 

consideration, and the legitimacy 

criterion for contaminants comparable 

to or less than the traditional fuel the 

unit is designed to burn has been met. 

Thus, no determination can be made 

whether or not the material has been 

discarded, and is a waste or non-waste. 

As the record indicates in previous 

categorical determinations, including 

CTRTs, multiple unique analytical data 

points were considered in making 

categorical determinations. 

Several consequences of not including 

dual-treated ties in this categorical 

determination are identified. The first 

suggested consequence stated that most 

newer ties are treated with borate and 

the utility of a creosote only categorical 

listing would be short-lived. As 

indicated, this final rule determination 

on dual-treated ties is based on a single 

data point, however, the EPA could 

revisit that determination in the future 

should additional data be made 

available. Further, not including dualtreated ties in this rule’s CTRT 

categorical determination does not 

necessarily preclude suppliers from 

determining that dual-treated ties are 

non-wastes. Instead of relying on this 

rule’s categorical non-waste 

determination, the suppliers can instead 

follow the procedures outlined in 40 

CFR 241.3 to make a non-waste 

determination specific to their product. 

The commenter also suggests that 

suppliers and CTRT processing facilities 

may have difficulty in distinguishing 

between CTRTs and dual-treated ties. 

These statements, however, are 

inconsistent with information received 

by the Agency on management of 

CTRTs. As stated in section V.C.1. of 

this preamble, contracts for the 

purchase and combustion of CTRTs may 

include fuel specifications limiting 

contaminants, such as metal, and 

precluding the receipt of wood treated 

with preservatives other than creosote. 

Comment: The EPA does not indicate 

in the proposal how CTRTs are to be 

processed to qualify as a non-waste fuel. 

The EPA has also not included in the 

proposal any requirements that 

processing of CTRTs must be conducted 

using best management practices. The 

EPA should include in the final rule 

requirements for processing of CTRTs 

that include specific criteria for best 

management practices. 

Response: The Agency agrees the rule 

should include language identifying 

how CTRTs are to be processed to 

qualify as a non-waste fuel. The 

language in the proposed rule stated the 

following was a categorical non-waste 

under 40 CFR 241.4 ‘‘Creosote-treated 

railroad ties that are processed 

(emphasis added) and combusted in 

units designed to burn both biomass and 

fuel oil.’’ 

Ties that are not processed into a new 

product fuel that meets legitimacy 

criteria would be considered discarded, 

but the rule did not specifically identify 

how the ties should be processed. As 

discussed in section V.C.4. of this 

preamble, certain practices are standard 

within the industry for the processing of 

cross-ties into fuel by reclamation/

processing companies. Specifically, 

metals (spikes, nails, plates, etc.) are 

removed using a magnet which may 

occur several times during the process. 

The cross-ties are then ground or 

shredded to a specified size depending 

on the particular needs of the end-use 

combustor. 

To provide specificity as to how 

CTRTs must be processed to meet the 

requirements of the categorical nonwaste standard, the language pertaining 

to CTRTs as a categorical non-waste fuel 

under 40 CFR 241.4 is amended as 

follows: ‘‘Creosote-treated railroad ties 

that are processed and then combusted 

in units designed to burn both biomass 

and fuel oil as part of normal operations 

and not solely as part of start-up or shutdown operations. Processing must 

include, at a minimum, metal removal 

and shredding or grinding. 

Comment: The EPA bases its 

treatment of CTRTs as fuel on an 

incorrect, arbitrary conclusion, reflected 

in this preamble statement: ‘‘CTRTs 

removed from service and stored in a 

railroad right of way or other location 

for long periods of time—that is, a year 

or longer, without a determination 

regarding their final end use (e.g., 


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146 Included in the docket for the final rule. 147See 76 FR 15486. 

landscaping, as a fuel or land filled) 

indicates that the material has been 

discarded and is a solid waste.’’ This 

statement reflects a complete 

misunderstanding of how CTRTs are 

processed and treated in the 

marketplace. Often times, CTRTs are 

transported a significant distance to the 

end user of the ties and therefore, those 

ties may need to be stored long enough 

to provide a shipment at a cost-effective 

freight rate. The availability of CTRTs 

may not always match the demand for 

CTRTs. Significant deconstruction of a 

railway could occur at a time when the 

marketplace for CTRTs as a fuel is 

flooded. Thus, storage of CTRTs is 

reasonable and by no means indicates 

that CTRTs are discarded. 

Response: The EPA disagrees that lack 

of cost-effective freight rates and 

variability in demand would result in a 

determination that CTRTs are not 

discarded. Such factors show that the 

value of ties as a commodity in the 

marketplace is predicated in part on 

these variables. The material would, in 

such cases, be speculatively 

accumulated with no clear market 

value. The fact that they may at some 

point in the future have value as a 

commodity does not render them nonwastes. Thus, the Agency sees no reason 

to reconsider its conclusion that CTRTs 

removed from service that may be stored 

in a railroad right of way or other 

location for long periods of time—that 

is, a year or longer, without a 

determination regarding their final end 

use shows that the material has been 

discarded and is a solid waste. 

c. Comments and Information Received 

on Other Types of Treated Railroad Ties 

The Agency received a petition from 

the Treated Wood Council in April 2013 

requesting that nonhazardous treated 

wood (including borate and copper 

naphtenate) be categorically listed as 

non-waste fuels in 40 CFR 241.4(a). 

Under the April 2013 petition, 

nonhazardous treated wood would 

include waterborne borate based 

preservatives, waterborne organic based 

preservatives, waterborne copper based 

wood preservatives (ammoniacal/

alkaline copper quat, copper azole, 

copper HDO, alkaline copper betaine, or 

copper naphthenate); creosote; oilborne 

copper naphthenate; 

pentachlorophenol; or dual-treated with 

any of the above. In the course of EPA’s 

review of the petition, additional data 

was requested and received, and 

meetings were held between TWC and 

EPA representatives. 

In an August 21, 2015 letter from 

TWC to Barnes Johnson,146 TWC 

requested that the Agency move forward 

quickly on a subset of materials that 

were identified in the original April 

2013 petition which are creosote borate, 

copper naphtenate, and copper 

naphtenate-borate treated railroad ties. 

In the letter, TWC indicated that these 

types of ties are increasingly being used 

as alternatives to creosote treated ties, 

and that the ability to reuse the ties is 

an important consideration in rail tie 

purchasing decisions. The letter stated 

that TWC will discuss the remaining 

treated wood materials with EPA as a 

separate matter. 

The Agency has reviewed TWC 

information on the three treated railroad 

ties, creosote borate, copper naphtenate, 

and copper naphtenate-borate, 

submitted on September 11, 2015 and 

has requested additional contaminant 

data which was submitted on October 5, 

2015 and October 19, 2015. Based on 

information provided to the Agency to 

date, we believe these three treated 

railroad ties are candidates for 

categorical non-waste listings and 

expect to begin development of a 

proposed rule under 40 CFR 241.4(a) 

regarding those listings in the near 

future. 

The Agency understands the 

importance of the January 31, 2016 

compliance deadline for existing boiler 

units and the need to make decisions on 

fuel use by that deadline. Agency action 

on the three treated railroad ties, 

however, must follow required action 

development processes including public 

notice and comment required under the 

Administrative Procedures Act. Due to 

such processes, the categorical nonwaste listing could not be completed 

prior to the January deadline. The 

Agency emphasizes, however, that 

facilities may also make selfdeterminations of their material under 

40 CFR 241.3(b). In order to be regulated 

under CAA section 112 rather than CAA 

section 129, a combustion source can 

make a non-waste determination for the 

NHSM used as fuel when managed 

within their control (241.3(b)(1)); or for 

fuel or products produced from 

processed discarded NHSM 

(241.3(b)(4)). Prior to the effective date 

of this rule, such self-determinations 

may apply to materials categorically 

listed as non-wastes by this rule. 

In an October 5, 2015 meeting with 

the Office of Management and Budget 

under EO 12866, industry 

representatives indicated that although 

the three types of RR ties are just 

coming into use, a few may have to be 

replaced, collected and mixed in with 

cresosote treated railroad ties by 

processor prior to being sent to the 

combustor. Industry representatives 

were concerned that the presence of 

these small amounts of creosote borate, 

copper naphtenate, and copper 

naphtenate-borate, since they are not 

included in the categorical 

determination, would render all of the 

creosote treated processed ties into solid 

wastes. The Agency has determined that 

small (de minimis) amounts of such 

materials would not result in 

determinations that the creosote ties 

being combusted are solid wastes. This 

is supported by the rulemaking record, 

specifically the discussion in the March 

2011 final rule where commenters 

argued that there should be a de 

minimis exemption for processed C&D 

wood to address small or de minimis 

amounts of material remaining on the 

wood. In response, the EPA 

acknowledged that ‘‘C&D-derived wood 

can contain de minimis amounts of 

contaminants and other materials 

provided it meets the legitimacy 

criterion for contaminant levels’’ and 

thus, did not find it necessary to finalize 

a de minimis exemption.147 That 

discussion supports the application of a 

de minimis principle. 

VI. Technical Corrections 

A. Change to 40 CFR 241.3(b)(2) 

NHSMs that are not solid wastes 

when combusted are identified under 40 

CFR 241.3(b). Paragraphs (i) and (ii) of 

40 CFR 241.3(b)(2) were reserved in 

response to the 40 CFR 241.4(a)(1) 

categorical non-waste standards in the 

February 7, 2013 rulemaking. Those 

standards had eliminated the need for 

previous standards under 40 CFR 

241.3(b)(2)(i) and (ii) related to scrap 

tires managed under established tire 

collection programs and resinated wood 

(see section IV.A. History of NHSM 

Rulemakings). However, reserving only 

40 CFR 241.3(b)(2)(i) and (ii), and not 

the introductory sentence, led to some 

confusion with the categorical nonwaste standards. For clarity, and to 

ensure consistent numbering with the 

following sections, we proposed to 

amend 40 CFR 241.3(b)(2) by reserving 

paragraph (b)(2) in its entirety. 

B. Change to 40 CFR 241.3(c)(1) 

The description of the petition 

process identified in 40 CFR 241.3(c)(1) 

contains a typographical error. 

Specifically, the last sentence of the 40 

CFR 241.3(c)(1) regulatory text from the 

February 2013 final rule is stated as 


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Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 6739 

148 76 FR 15456, March 21, 2011 (page 15545). 

149 76 FR 15456, March 21, 2011 (page 15546). 

150Excluding minor administrative burden/cost 

(e.g., rule familiarization). 

151U.S. EPA, Office of Resource Conservation and 

Recovery, ‘‘Assessment of the Potential Costs, 

Benefits, and Other Impacts for the Final Rule: 

Categorical Non-Waste Determination for Selected 

Non Hazardous Secondary Materials (NHSMs): 

Construction and Demolition Wood, Recycling 

Process Residuals, and Creosote-Treated Railroad 

Ties’’ May 22, 2015. 

follows: ‘‘The determination will be 

based on whether the non-hazardous 

secondary material that has been 

discarded is a legitimate fuel as 

specified in paragraph (d)(1) of this 

section and on the following criteria:’’ 

However, the intent of this sentence is 

to say that the determination is based on 

‘‘whether it has or has not been 

discarded’’ in addition to other factors. 

Therefore, we proposed to amend the 

regulatory text to add a ‘‘not’’ before 

‘‘been discarded’’ and remove ‘‘that’’ 

after ‘‘non-hazardous secondary 

material.’’ The proposed regulatory text, 

therefore, was ‘‘. . . The determination 

will be based on whether the nonhazardous secondary material has not 

been discarded is a legitimate fuel as 

specified in paragraph (d)(1) of this 

section and on the following criteria:’’ 

A comment was received on the 

proposed amendments stating the word 

‘‘that’’ appears to have been omitted in 

the last sentence, and should be add to 

the sentence as shown in italics below: 

‘‘The determination will be based on 

whether the non-hazardous secondary 

material that has not been discarded is 

a legitimate fuel as specified in 

paragraph (d)(1) of this section and on 

the following criteria . . .’’ 

The Agency agrees with the 

commenter. The word ‘‘that’’ clarifies 

the sentence’s meaning and should not 

have been omitted. Thus, the sentence 

in the final rule reads: ‘‘The 

determination will be based on whether 

the non-hazardous secondary material 

that has not been discarded is a 

legitimate fuel as specified in paragraph 

(d)(1) of this section and on the 

following criteria . . .’’ 

C. Change to 40 CFR 241.3(d)(1)(iii) 

The Agency also proposed to make a 

technical correction to 40 CFR 

241.3(d)(1)(iii) to clarify that the 

provision applies to cement kilns, as 

well as boilers. Specifically, that section 

of the rule identifies the legitimacy 

criteria for NHSMs relating to 

contaminant comparisons between the 

traditional fuel(s) a unit is designed to 

burn and the NHSM. It states that a 

person may choose a traditional fuel 

that can be burned in any type of boiler 

(emphasis added), whereas the rest of 

the sentence refers to the combustion 

unit. Like a boiler, a cement kiln that 

combusts any non-hazardous solid 

waste is subject to regulation as a CISWI 

unit pursuant to section 129(g)(1) of the 

CAA. In order for a cement kiln not to 

be classified as a CISWI unit, it must use 

a fuel that is/has been determined to be 

a non-waste fuel under 40 CFR part 241 

when combusted. Consistent with the 

section as a whole, the word boiler is 

replaced with combustion unit to clarify 

that a person may choose a traditional 

fuel that can be or is burned in a 

combustion unit, which can be a cement 

kiln, as well as a boiler. Thus, the 

proposed regulatory text was ‘‘. . . In 

determining which traditional fuel(s) a 

unit is designed to burn, persons may 

choose a traditional fuel that can be or 

is burned in the particular type of 

combustion unit, whether or not the 

combustion unit is permitted to burn 

that traditional fuel . . . .’’ The EPA 

received no comments on this technical 

change and is issuing the rule in final, 

as proposed. 

VII. Effect of This Rule on Other 

Programs 

Beyond expanding the list of NHSMs 

that categorically qualify as non-waste 

fuels, this rule does not change the 

effect of the NHSM regulations on other 

programs as described in the March 21, 

2011 NHSM final rule, as amended on 

February 7, 2013 (78 FR 9138). Refer to 

section VIII of the preamble to the 

March 21, 2011 NHSM final rule 148 for 

the discussion on the effect of the 

NHSM rule on other programs. 

VIII. State Authority 

A. Relationship to State Programs 

This final rule does not change the 

relationship to state programs as 

described in the March 21, 2011 NHSM 

final rule. Refer to section IX of the 

preamble to the March 21, 2011 NHSM 

final rule 149 for the discussion on state 

authority including, ‘‘Applicability of 

State Solid Waste Definitions and 

Beneficial Use Determinations’’ and 

‘‘Clarifications on the Relationship to 

State Programs.’’ The Agency, however, 

would like to reiterate that this rule (like 

the March 21, 2011 and the February 7, 

2013 final rules) is not intended to 

interfere with a state’s program 

authority over the general management 

of solid waste. 

B. State Adoption of the Rulemaking 

No federal approval procedures for 

state adoption of this final rule are 

included in this rulemaking action 

under RCRA subtitle D. Although the 

EPA does promulgate criteria for solid 

waste landfills and approves state 

municipal solid waste landfill 

permitting programs, RCRA does not 

provide the EPA with authority to 

approve state programs beyond those 

landfill permitting programs. While 

states are not required to adopt 

regulations promulgated under RCRA 

subtitle D, some states incorporate 

federal regulations by reference or have 

specific state statutory requirements that 

their state program can be no more 

stringent than the federal regulations. In 

those cases, the EPA anticipates that, if 

required by state law, the changes being 

proposed in this document, if finalized, 

will be incorporated (or possibly 

adopted by authorized state air 

programs) consistent with the state’s 

laws and administrative procedures. 

IX. Cost and Benefits 

The value of any regulatory action is 

traditionally measured by the net 

change in social welfare that it 

generates. This rulemaking establishes a 

categorical non-waste listing for selected 

NHSMs under RCRA. This categorical 

non-waste determination allows these 

materials to be combusted as a product 

fuel in units, subject to the section 112 

CAA emission standards, without being 

subject to a detailed case-by-case 

analysis of the material(s) by individual 

combustion facilities, provided they 

meet the conditions of the categorical 

listing. The rule establishes no direct 

standards or requirements relative to 

how these materials are managed or 

combusted. As a result, this action alone 

does not directly invoke any costs 150 or 

benefits. Rather, this RCRA proposal is 

being developed to simplify the rules for 

identifying which NHSMs are not solid 

wastes and to provide additional clarity 

and direction for owners or operators of 

combustion facilities. In this regard, this 

proposal provides a procedural benefit 

to the regulated community, as well as 

the states through the establishment of 

regulatory clarity and enhanced 

materials management certainty. 

Because this RCRA action is 

definitional only, any costs or benefits 

indirectly associated with this action 

would not occur without the 

corresponding implementation of the 

relevant CAA rules. However, in an 

effort to ensure rulemaking 

transparency, the EPA prepared an 

assessment in support of this action that 

examines the scope and direction of 

these indirect impacts, for both costs 

and benefits.151 A document discussing 

the effects of the proposed rule was 

available in the docket for review. No 

comments were received on the 

assessment and the document reflecting 


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6740 Federal Register / Vol. 81, No. 25 / Monday, February 8, 2016 / Rules and Regulations 

the final rule has been placed in the 

rulemaking docket. 

X. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is a significant regulatory 

action that was submitted to the Office 

of Management and Budget (OMB) for 

review, because it may raise novel legal 

or policy issues [3(f)(4)] arising out of 

legal mandates, although it is not 

economically significant. Any changes 

made in response to OMB 

recommendations have been 

documented in the docket. The EPA 

prepared an economic analysis of the 

potential costs and benefits associated 

with this action. This analysis, 

‘‘Assessment of the Potential Costs, 

Benefits, and Other Impacts for the 

Final Rule—Categorical Non-Waste 

Determination for Selected NonHazardous Secondary Materials 

(NHSMs): Construction and Demolition 

Wood, Recycling Process Residuals, and 

Creosote-Treated Railroad Ties’’, is 

available in the docket. Interested 

persons are encouraged to read and 

comment on this document. 

B. Paperwork Reduction Act 

The information collection activities 

in this rule will be submitted for 

approval to the Office of Management 

and Budget (OMB) under the PRA. The 

Information Collection Request (ICR) 

document that the EPA prepared has 

been assigned EPA ICR number 2493.03. 

You can find a copy of the ICR in the 

docket for this rule, and it is briefly 

summarized here. The information 

collection requirements are not 

enforceable until OMB approves them. 

This action will impose a direct RCRA 

related burden associated with reading 

and understanding the rule. This burden 

is estimated at approximately $102 per 

entity and would impact facilities that 

generate the NHSMs, and those that 

combust these materials as a fuel 

product. Combustors of C&D wood must 

also request a written certification from 

C&D processing facilities that the C&D 

wood that they intend to burn as a nonwaste fuel has been processed by 

trained operators in accordance with 

best management practices, as defined 

in the rule. The preparation of the 

certification statement and the need to 

maintain certification status is the 

responsibility of the processor. The 

combustors also would be required to 

maintain the certification statement on 

file; however, there is already an 

existing requirement for combustors to 

maintain records that show how they 

are in compliance with the 40 CFR 

241.3 and 241.4 requirements (40 CFR 

60.2740(u) (Emissions Guidelines) and 

40 CFR 60.2175(w) (New Source 

Performance Standards) for CISWI units 

and 40 CFR 63.11225(c)(2)(ii) for area 

source boilers and 40 CFR 63.7555(d)(2) 

for major source boilers). Because there 

are already existing recordkeeping 

requirements for combustors to 

maintain records that show how they 

are in compliance with the 40 CFR 

241.3 and 241.4 requirements, the 

requirement to maintain the 

certification statement provided by the 

processor would simply be in place of 

records that would need to be 

maintained for processed C&D wood, 

absent a categorical non-waste fuel 

determination. OMB has previously 

approved the information collection 

requirements contained in the existing 

NHSM regulation at 40 CFR part 241 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2050–0205. 

Respondents/affected entities: 

Processors and combustors of C&D 

wood. 

Respondent’s obligation to respond: 

Mandatory per 40 CFR 241.4(a)(5)(iii) 

and (iv). 

Estimated number of respondents: 

605. 

Frequency of response: Annual. 

Total estimated burden: 2,252 hours 

(per year). Burden is defined at 5 CFR 

1320.3(b). 

Total estimated cost: $230,111 (per 

year), includes $0 annualized capital or 

operation & maintenance costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

OMB approves this ICR, the Agency will 

announce that approval in the Federal 

Register and publish a technical 

amendment to 40 CFR part 9 to display 

the OMB control number for the 

approved information collection 

activities contained in this final rule. 

C. Regulatory Flexibility Act 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 

determination, the impact of concern is 

any significant adverse economic 

impact on small entities. An agency may 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, has 

no net burden or otherwise has a 

positive economic effect on the small 

entities subject to the rule. The addition 

of the three NHSMs to the list of 

categorical non-waste fuels will 

indirectly reduce materials management 

costs. In addition, this action will 

reduce regulatory uncertainty associated 

with these materials and help increase 

management efficiency. We have 

therefore concluded that this final rule 

will relieve regulatory burden for all 

affected small entities. We continue to 

be interested in the potential impacts of 

the final rule on small entities and 

welcome comments on issues related to 

such impacts outside the scope of this 

rule. 

D. Unfunded Mandates Reform Act 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action has tribal implications. 

However, it will neither impose 

substantial direct compliance costs on 

federally recognized tribal governments, 

nor preempt tribal law. Potential aspects 

associated with the categorical nonwaste fuel determinations under this 

final rule may invoke minor indirect 

implications to the extent that entities 

generating or consolidating these 

NHSMs on tribal lands could be 

affected. However, any impacts are 

expected to be negligible. 

The proposed rule solicited comment 

from tribal officials on actions contained 

in the rule. As no comments were 

received, the above determination is 

adopted for this final rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866, and because the 


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152U.S. EPA, Office of Resource Conservation and 

Recovery. Summary of Environmental Justice 

Impacts for the Non-Hazardous Secondary Material 

(NHSM) Rule, the 2010 Commercial and Industrial 

Solid Waste Incinerator (CISWI) Standards, the 

2010 Major Source Boiler NESHAP and the 2010 

Area Source Boiler NESHAP. February 2011. 

153The absence of site-specific coordinates for 

area sources prevents assessments of the 

demographics of populations located near these 

sources. 

154U.S. EPA, Office of Resource Conservation and 

Recovery. Summary of Environmental Justice 

Impacts for the Non-Hazardous Secondary Material 

(NHSM) Rule, the 2010 Commercial and Industrial 

Solid Waste Incinerator (CISWI) Standards, the 

2010 Major Source Boiler NESHAP and the 2010 

Area Source Boiler NESHAP. February 2011. 

155U.S. EPA, Office of Resource Conservation and 

Recovery. Summary of Environmental Justice 

Impacts for the Non-Hazardous Secondary Material 

(NHSM) Rule, the 2010 Commercial and Industrial 

Solid Waste Incinerator (CISWI) Standards, the 

2010 Major Source Boiler NESHAP and the 2010 

Area Source Boiler NESHAP. February 2011. The 

findings of that study, based on the most recent 

census data, are not expected to change as a result 

of this action. 

156This figure is for overall population minus 

white population and does not include the Census 

group defined as ‘‘White Hispanic.’’ 

EPA does not believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. Based on the discussion 

below, the Agency finds that the 

populations of children near potentially 

affected boilers are either not 

significantly greater than national 

averages, or in the case of landfills, may 

potentially result in reduced discharges 

near such populations.152

The final rule may indirectly 

stimulate the increased fuel use of one 

or more of the three NHSMs by 

providing enhanced regulatory clarity 

and certainty. This increased fuel use 

may result in the diversion of a certain 

quantity of these NHSMs away from 

current baseline management practices. 

Any corresponding disproportionate 

impacts among children would depend 

upon: (1) Any potential change in 

emissions from combustion units 

subject to the CAA section 112 

standards, relative to baseline 

management patterns, and (2) whether 

children make up a disproportionate 

share of the population near the affected 

combustion units. Therefore, to assess 

the potential for the final rule to result 

in an indirect disproportionate effect on 

children, we conducted a demographic 

analysis for this population group 

surrounding CAA section 112 major 

source boilers, municipal solid waste 

landfills, and C&D landfills, and cement 

kilns.153 We assessed the share of the 

population under the age of 18 living 

within a three-mile (approximately five 

kilometers) radius of these facilities. 

For major source boilers, our findings 

indicate that the percentage of the 

population in these areas under age 18 

years of age is generally the same as the 

national average.154 In addition, while 

the fuel source and corresponding 

emission mix for some of these boilers 

may change as an indirect response to 

this rule, emissions from these sources 

remain subject to the CAA section 112 

standards. 

For municipal solid waste and C&D 

landfills, we do not have demographic 

results specific to children. However, 

using the population below the poverty 

level as a rough surrogate for children, 

we found that within three miles of 

facilities that may experience diversions 

of one or more of these NHSMs, lowincome populations, as a percent of the 

total population, are disproportionately 

high relative to the national average. 

Thus, to the extent that these NHSMs 

are diverted away from municipal solid 

waste or C&D landfills, any landfillrelated emissions, discharges, or other 

negative activity potentially impacting 

low-income (children) populations 

living near these units are likely to be 

reduced. Finally, transportation 

emissions associated with the diversion 

of some of this material away from 

landfills to boilers are likely to be 

generally unchanged, while these 

emissions are likely to be reduced for 

on-site generators of paper recycling 

residuals that would reduce off-site 

shipments. 

The public was invited to submit 

comments or identify peer-reviewed 

studies and data that assess effects of 

early life exposure to the specific 

NHSMs addressed in the proposal. The 

Agency did not receive comments or 

studies in these subject areas, and is 

therefore adopting the determinations 

described above for this final rule. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not ‘‘significant energy 

action’’ because it is not likely to have 

a significance adverse effect on the 

supply, distribution or use of energy. 

The selected NHSMs affected by this 

final action are not generated in 

quantities sufficient to significantly 

(adversely or positively) impact the 

supply, distribution, or use of energy at 

the national level. 

I. National Technology Transfer and 

Advancement Act 

This final rulemaking does not 

involve technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. This is because the overall 

level of emissions, or the emissions mix 

from boilers, will not change 

significantly as the three categorically 

listed non-waste fuels are comparable to 

the types of fuels that the combustors 

would otherwise burn. 

Potential indirect impacts on minority 

and/or low-income citizens have been 

assessed by looking at the following: (1) 

Any change in emissions or the 

emissions mix from combustion units 

subject to the CAA section 112 

standards that may accept increased 

quantities of one or more of the three 

NHSMs addressed in this final rule, (2) 

any change in emissions resulting from 

the diversion of these NHSMs from their 

current baseline management methods, 

and (3) any other impacts related to 

material diversion (e.g., noise, 

aesthetics, water pollution, etc.). These 

factors were considered in conjunction 

with our assessment of the demographic 

characteristics surrounding the affected 

areas. 

Our environmental justice 

assessment 155 for the March 21, 2011 

final rule, based on the most recent 

census data, reviewed the distributions 

of minority and low-income groups that 

might be impacted by the sources 

indirectly affected by this rule. We 

focused on census blocks within three 

miles (approximately five kilometers) of 

the indirectly affected sources. We then 

determined the demographic 

composition (e.g., race, income, etc.) of 

these census blocks and compared them 

to the corresponding national 

compositions. Our findings show that 

populations living within three miles of 

major source boilers represent areas 

with minority and low-income 

populations that are higher than the 

national averages. In these areas, the 

minority share 156 of the population was 

found to be 33 percent, compared to the 

national average of 25 percent. For these 

same areas, the percent of the 

population below the poverty line (16 

percent) is also higher than the national 

average (13 percent). 

We also considered the potential for 

non-combustion environmental justice 

concerns related to the potential 

incremental increase in NHSMs 

diversions from current baseline 

management practices. These include 

the following: 


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• Reduced upstream emissions 

resulting from the reduced production 

of virgin fuel: Any reduced upstream 

emissions that may indirectly occur in 

response to reduced virgin fuel mining 

or extraction may result in a human 

health and/or environmental benefit to 

minority and low-income populations 

living near these projects. 

• Alternative materials transport 

patterns: Transportation emissions 

associated with NHSMs diverted from 

landfills to boilers are likely to be 

similar, except for on-site paper 

recycling residuals, where the potential 

for less off-site transport to landfills may 

result in reduced truck traffic and 

emissions where such transport patterns 

may pass through minority or lowincome communities. 

• Change in emissions from baseline 

management units: The diversion of 

some of these NHSMs away from 

disposal in landfills may result in a 

marginal decrease in activity at these 

facilities. This may include non-adverse 

impacts, such as marginally reduced 

emissions, odors, groundwater and 

surface water impacts, noise pollution, 

and reduced maintenance cost to local 

infrastructure. Because municipal solid 

waste and C&D landfills were found to 

be located in areas where minority and 

low-income populations are 

disproportionately high relative to the 

national average, any reduction in 

activity and emissions around these 

facilities is likely to benefit the citizens 

living near these facilities. 

Finally, this rule, in conjunction with 

the corresponding CAA rules, may help 

accelerate the abatement of any existing 

stockpiles of the targeted NHSMs. To 

the extent that these stockpiles may 

represent negative human health or 

environmental implications, minority 

and/or low-income populations that live 

near such stockpiles may experience 

marginal health or environmental 

improvements. Aesthetics may also be 

improved in such areas. 

As previously discussed, this RCRA 

action alone does not directly require 

any change in the management of these 

materials. Thus, any potential materials 

management changes stimulated by this 

action, and corresponding impacts to 

minority and low-income communities, 

are considered to be indirect impacts, 

and would only occur in conjunction 

with the corresponding CAA rules. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 241 

Environmental protection, Air 

pollution control, Waste treatment and 

disposal. 

Dated: January 21, 2016. 

Gina McCarthy, 

Administrator. 

For the reasons stated in the 

preamble, Title 40, chapter I, of the 

Code of Federal Regulations is amended 

as follows: 

PART 241—SOLID WASTES USED AS 

FUELS OR INGREDIENTS IN 

COMBUSTION UNITS 

■ 1. The authority citation for part 241 

continues to read as follows: 

Authority: 42 U.S.C. 6903, 6912, 7429. 

Subpart A—General 

■ 2. Section 241.2 is amended by adding 

in alphabetical order the definitions 

‘‘Construction and demolition (C&D) 

wood’’, ‘‘Creosote treated railroad ties’’, 

‘‘Paper recycling residuals’’ and ‘‘Power 

producer’’ to read as follows: 

§ 241.2 Definitions. 

* * * * * 

Construction and demolition (C&D) 

wood means wood that is generated 

from the processing of debris from 

construction and demolition activities 

for the purposes of recovering wood. 

C&D wood from construction activities 

results from wood generated during any 

installation activity or from purchasing 

more wood than a project ultimately 

requires. C&D wood from demolition 

activities results from dismantling 

buildings and other structures, 

removing materials during renovation, 

or from natural disasters. 

* * * * * 

Creosote treated railroad ties means 

railway support ties treated with a wood 

preservative containing creosols and 

phenols and made from coal tar oil. 

* * * * * 

Paper recycling residuals means the 

secondary material generated from the 

recycling of paper, paperboard and 

corrugated containers composed 

primarily of wet strength and short 

wood fibers that cannot be used to make 

new paper and paperboard products. 

Paper recycling residuals that contain 

more than small amounts of non-fiber 

materials including polystyrene foam, 

polyethylene film, other plastics, waxes 

and adhesives, dyes and inks, clays, 

starches and other coating and filler 

material are not paper recycling 

residuals for purposes of this definition. 

* * * * * 

Power producer means a boiler unit 

producing electricity for sale to the grid. 

The term does not include units meeting 

the definition of electricity generating 

unit under 40 CFR 63.10042. 

* * * * * 

Subpart B—Identification of NonHazardous Secondary Materials That 

Are Solid Wastes When Used as Fuels 

or Ingredients in Combustion Units 

■ 3. Section 241.3 is amended by 

revising paragraphs (c)(1) introductory 

text and (d)(1)(iii) to read as follows: 

§ 241.3 Standards and procedures for 

identification of non-hazardous secondary 

materials that are solid wastes when used 

as fuels or ingredients in combustion units. 

* * * * * 

(c) * * * 

(1) Submittal of an application to the 

Regional Administrator for the EPA 

Region where the facility or facilities are 

located or the Assistant Administrator 

for the Office of Land and Emergency 

Management for a determination that 

the non-hazardous secondary material, 

even though it has been transferred to a 

third party, has not been discarded and 

is indistinguishable in all relevant 

aspects from a fuel product. The 

determination will be based on whether 

the non-hazardous secondary material 

that has not been discarded is a 

legitimate fuel as specified in paragraph 

(d)(1) of this section and on the 

following criteria: 

* * * * * 

(d) * * * 

(1) * * * 

(iii) The non-hazardous secondary 

material must contain contaminants or 

groups of contaminants at levels 

comparable in concentration to or lower 

than those in traditional fuel(s) that the 

combustion unit is designed to burn. In 

determining which traditional fuel(s) a 

unit is designed to burn, persons may 

choose a traditional fuel that can be or 

is burned in the particular type of 

combustion unit, whether or not the 

unit is permitted to burn that traditional 

fuel. In comparing contaminants 

between traditional fuel(s) and a nonhazardous secondary material, persons 

can use data for traditional fuel 

contaminant levels compiled from 

national surveys, as well as contaminant 

level data from the specific traditional 

fuel being replaced. To account for 

natural variability in contaminant 

levels, persons can use the full range of 

traditional fuel contaminant levels, 

provided such comparisons also 

consider variability in non-hazardous 

secondary material contaminant levels. 

Such comparisons are to be based on a 


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direct comparison of the contaminant 

levels in both the non-hazardous 

secondary material and traditional 

fuel(s) prior to combustion. 

* * * * * 

■ 4. Section 241.4 is amended by adding 

paragraphs (a)(5) through (7) to read as 

follows: 

§ 241.4 Non-waste Determinations for 

Specific Non-Hazardous Secondary 

Materials When Used as a Fuel. 

(a) * * * 

(5) Construction and demolition 

(C&D) wood processed from C&D debris 

according to best management practices. 

Combustors of C&D wood must obtain a 

written certification from C&D 

processing facilities that the C&D wood 

has been processed by trained operators 

in accordance with best management 

practices. Best management practices for 

purposes of this categorical listing must 

include sorting by trained operators that 

excludes or removes the following 

materials from the final product fuel: 

non-wood materials (e.g., polyvinyl 

chloride and other plastics, drywall, 

concrete, aggregates, dirt, and asbestos), 

and wood treated with creosote, 

pentachlorophenol, chromated copper 

arsenate, or other copper, chromium, or 

arsenical preservatives. In addition: 

(i) Positive sorting. C&D processing 

facilities that use positive sorting— 

where operators pick out desirable 

wood from co-mingled debris—or that 

receive and process positive sorted C&D 

wood must either: 

(A) Exclude all painted wood (to the 

extent that only de minimis quantities 

inherent to processing limitations may 

remain) from the final product fuel, 

(B) Use X-ray Fluorescence to ensure 

that painted wood included in the final 

product fuel does not contain leadbased paint, or 

(C) Require documentation that a 

building has been tested for and does 

not include lead-based paint before 

accepting demolition debris from that 

building. 

(ii) Negative sorting. 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: 

(A) Remove all painted wood (to the 

extent that only de minimis quantities 

inherent to processing limitations may 

remain), 

(B) Use X-ray Fluorescence to detect 

and remove lead-painted wood, or 

(C) Require documentation that a 

building has been tested for and does 

not include lead-based paint before 

accepting demolition debris from that 

building. 

(iii) Training. Processors must train 

operators to exclude or remove the 

materials as listed in paragraph (a)(5) of 

this section from the final product fuel. 

Records of training must include date of 

training held and must be maintained 

on-site for a period of three years. 

(iv) Written certification. A written 

certification must be obtained by the 

combustor for every new or modified 

contract, purchase agreement, or other 

legally binding document, from each 

final processor of C&D wood and must 

include the statement: the processed 

C&D wood has been sorted by trained 

operators in accordance with best 

management practices. 

(6) Paper recycling residuals 

generated from the recycling of 

recovered paper, paperboard and 

corrugated containers and combusted by 

paper recycling mills whose boilers are 

designed to burn solid fuel. 

(7) Creosote-treated railroad ties that 

are processed and then combusted in 

the following types of units. Processing 

must include, at a minimum, metal 

removal and shredding or grinding. 

(i) Units designed to burn both 

biomass and fuel oil as part of normal 

operations and not solely as part of 

start-up or shut-down operations, and 

(ii) Units at major source pulp and 

paper mills or power producers subject 

to 40 CFR part 63, subpart DDDDD, that 

combust CTRTs and had been designed 

to burn biomass and fuel oil, but are 

modified (e.g. oil delivery mechanisms 

are removed) in order to use natural gas 

instead of fuel oil, as part of normal 

operations and not solely as part of 

start-up or shut-down operations. The 

CTRTs may continue to be combusted as 

product fuel under this subparagraph 

only if the following conditions are met, 

which are intended to ensure that the 

CTRTs are not being discarded: 

(A) CTRTs must be burned in existing 

(i.e. commenced construction prior to 

April 14, 2014) stoker, bubbling bed, 

fluidized bed, or hybrid suspension 

grate boilers; and 

(B) CTRTs can comprise no more than 

40 percent of the fuel that is used on an 

annual heat input basis. 

* * * * * 

[FR Doc. 2016–01866 Filed 2–5–16; 8:45 am] 

BILLING CODE 6560–50–P 


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