[Federal Register Volume 81, Number 25 (Monday, February 8, 2016)]
[Rules and Regulations]
[Pages 6688-6743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01866]



[[Page 6687]]

Vol. 81

Monday,

No. 25

February 8, 2016

Part III





Environmental Protection Agency





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40 CFR Part 241





Additions to List of Categorical Non-Waste Fuels; Final Rule

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

[[Page 6688]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

[EPA-HQ-RCRA-2013-0110; FRL-9929-56-OLEM]
RIN-2050-AG74


Additions to List of Categorical Non-Waste Fuels

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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: <a href="/cdn-cgi/l/email-protection#b1d7d0d8c2dedf9fd6d4dec3d6d4f1d4c1d09fd6dec7"><span class="__cf_email__" data-cfemail="deb8bfb7adb1b0f0b9bbb1acb9bb9ebbaebff0b9b1a8">[email protected]</span></a>.

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:

[[Page 6689]]



 Generators and Potential Users \a\ of the New Materials To Be Added to
                 the List of Categorical Non-Waste Fuels
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        Primary industry category or sub category            NAICS \b\
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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:            487110
 Railroad, scenic and sightseeing)......................
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 case-by-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
SO<INF>2</INF> 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 Sec.  241.4(a). These new 
categorical listings are for:
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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.
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    <bullet> Construction and demolition (C&D) wood processed from C&D 
debris according to best management practices.

[[Page 6690]]

    <bullet> 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.
    <bullet> 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.
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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.
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    (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 
non-waste 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:
    <bullet> 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));
    <bullet> 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));
    <bullet> Discarded NHSM has been sufficiently processed to produce 
a fuel or ingredient that meets the legitimacy criteria (40 CFR 
241.3(b)(4)); or
    <bullet> 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

[[Page 6691]]

and 241.3, added 40 CFR 241.4, and included the following: \4\
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    \3\ See 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).
    \4\ See 78 FR 9112 (February 7, 2013) for a discussion of the 
rule and the Agency's basis for its decisions.
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    <bullet> 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.''
    <bullet> 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.
    <bullet> 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 non-waste fuel, persons that generate or burn these NHSMs will not 
need to make individual determinations, as required under the existing 
rules, that these NHSMs meet the legitimacy criteria. Except where 
otherwise noted, combustors of these materials will not be required to 
provide further information demonstrating their non-waste status. Based 
on all available information, the EPA determined 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\
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    \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.

-- 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.

    <bullet> 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 non-waste 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.
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    \6\ 78 FR 9160.
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    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 non-waste 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

[[Page 6692]]

preamble or the regulatory text for a full description of this 
categorical listing).
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    \7\ As noted above, the Agency also received a petition from the 
Treated Wood Council asking that non-hazardous treated wood be 
categorically listed--a broad category that would include creosote-
treated railroad ties. Other treated wood addressed in the petition 
included waterborne borate-based preservatives, waterborne organic-
based preservatives, waterborne copper-based wood preservatives 
(ammoniacal/alkaline copper quat, copper azole, copper HDO, alkaline 
copper betaine, or copper naphthenate); creosote; oilborne copper 
naphthenate; pentachlorophenol; or dual-treated with any of the 
above. The Agency is in the process of reviewing that petition and 
supplementary information submitted subsequent to the petition. 
Accordingly, while 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..
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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 non-waste 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.
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    \8\ For a full discussion regarding the petition process for 
receiving a categorical non-waste determination, see 78 FR 9111, 
February 7, 2013 (page 9158-9159).
    \9\ Supplementary information received from by M.A. Energy 
Resources (February 2013) in support of the crosstie derived fuel 
was submitted as a categorical petition in accordance 40 CFR 
241.4(b).
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    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\
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    \10\ Two 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.
    \11\ Materials Characterization Paper: Construction and 
Demolition Materials. February 3, 2011. EPA-HQ-RCRA-2008-0329-1811.
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    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.
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    \12\ Clean C&D wood is included in the definition of ``clean 
cellulosic biomass'' and thus, may be combusted as a traditional 
fuel if it does not contain contaminants at concentrations not 
normally associated with virgin wood. Conversely, C&D wood that is 
not ``clean'' is that which must be processed to remove contaminants 
such as lead-painted wood, treated wood containing contaminants, 
such as arsenic and chromium, metals and other non-wood materials. 
(See 76 FR 15485, March 21, 2011; 78 FR 9138-39, February 7, 2013; 
and 40 CFR 241.2).
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    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

[[Page 6693]]

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.
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    \13\ This 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.
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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).<SUP>16 17</SUP>
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    \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.''
    \16\ Recordkeeping 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).
    \17\ While the combustor would be responsible for maintaining 
the records that such NHSM met the legitimacy criteria, the 
combustor could request that the person that generated the C&D wood 
provide documentation that the processing operations meet the 
definition of processing, as well as the legitimacy criteria, 
especially the contaminant legitimacy criterion.
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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.
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    \18\ Comments 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.
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    <bullet> It is utilized in combination with other biomass materials 
to optimize and manage combustion in boilers due to its low moisture/
high heat characteristics.
    <bullet> It is sufficiently processed to remove impurities.
    <bullet> 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.
    <bullet> Commenters detail the processing and test data available 
for C&D materials, which demonstrates their value as a fuel.
    <bullet> 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 
lead-painted wood or fines or through other means as specified in 
applicable state law). Commenters also compiled a dataset of 
contaminant concentrations in processed C&D wood from nine combustion 
facilities in seven states to demonstrate the efficacy of the 
identified practices.
    Case-by-case analysis is not necessary, the trade organizations 
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

[[Page 6694]]

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.
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    \19\ Comments 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.
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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 non-waste 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 X-ray Fluorescence to 
ensure that painted wood included in the final product fuel does not 
contain lead-based paint, or require documentation that a building has 
been tested for and does not include lead-based paint before accepting 
demolition debris from that building.
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    \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).
    \21\ Although industry trade groups did not list creosote 
treated wood as wood that is excluded or removed, they provided 
information indicating that C&D debris can include creosote treated 
wood. Based upon the contaminants present in creosote treated wood 
and the types of boilers that burn C&D wood (i.e., those that are 
designed to burn clean wood and biomass), 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.
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    C&D processing facilities that use negative sorting (where 
operators remove contaminated or otherwise undesirable materials from 
co-mingled debris) must remove fines, i.e., small-sized particles that 
may contain relatively high concentrations of lead and other 
contaminants, and either remove painted wood, use X-ray Fluorescence to 
detect and remove lead-painted wood, or require documentation that a 
building has been tested for and does not include lead-based paint 
before accepting demolition debris from that building.
    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.
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    \22\ See 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).
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    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

[[Page 6695]]

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.
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    \23\ Management of disaster debris can involve significantly 
greater volumes. For example, prior to the 1994 Northridge 
earthquake in Los Angeles, one local company processed 150 tons of 
C&D debris per day. After the earthquake, the city picked up as much 
as 10,000 tons of C&D debris per day.
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    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.''
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    \24\ See comments from American Forest & Paper Association (EPA-
HQ-RCRA-2013-0110-0076) and Waste Management (EPA-HQ-RCRA-2013-0110-
0094.
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    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

[[Page 6696]]

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 
non-waste 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 non-waste fuel or non-waste ingredient, 
including operations necessary to: Remove or destroy contaminants; 
significantly improve the fuel characteristics (e.g., sizing or drying 
of the material, in combination with other operations); chemically 
improve the as-fired energy content; or improve the ingredient 
characteristics. Minimal operations that result only in modifying the 
size of the material by shredding do not constitute processing for the 
purposes of the definition.
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    \25\ This rulemaking does not change the waste status of C&D 
wood prior to processing, up to which point the material would 
likely be a solid waste subject to appropriate federal, state, and 
local requirements unless it meets the definition of ``clean 
cellulosic biomass.''
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    Compared to mixed C&D debris, processed C&D wood will have 
significantly fewer contaminants and improved fuel characteristics. 
Specifically, the removal or exclusion of specified materials, such as 
creosote-treated wood (PAHs, dibenzofuran), pentachlorophenol-treated 
wood (pentachlorophenol, dioxins), CCA-treated wood (chromium, 
arsenic), other copper, chromium, and arsenical treated wood, plastics 
(chlorine), drywall (sulfur), lead-based paint (lead), as well as 
insulation and other materials containing asbestos,\26\ will result in 
significant contaminant removal. In addition, the removal of concrete, 
aggregates, dirt, and other non-combustible material will significantly 
increase the material's energy value. Finally, grinding all remaining 
wood to a specified size will allow combustors to transport, store, and 
use processed C&D wood in the same manner as virgin wood and biomass 
materials.
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    \26\ CAA 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).
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    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 non-waste 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

[[Page 6697]]

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 non-waste 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.
---------------------------------------------------------------------------

    \27\ See December 7, 2012 letter from Susan Bodine to Suzanne 
Rudzinski, page 3. EPA-HQ-RCRA-2008-0329-2009.
---------------------------------------------------------------------------

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 boilers\29\ 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.
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    \28\ Appendix 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.
    \29\ Major sources are
    \30\ USEPA, Office of Air Quality Planning and Standards, 
Emissions Database for Boilers and Process Heaters Containing Stack 
Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and 
ICR No. 2286.03 (Version 6). EPA Docket/Document Number EPA-HQ-OAR-
2002-0058-3255. February 2011.
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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\
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    \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.
---------------------------------------------------------------------------

    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 mercury-containing devices present in 
buildings; chlorine due to PVC and other plastics; sulfur due to 
plaster or drywall containing gypsum, a sulfate mineral; formaldehyde 
due to resinated wood; and pentachlorophenol due to utility poles and 
other treated wood products currently accepted by some combustion 
facilities. Although sources of fluorine in C&D debris are less clear, 
the contaminant's presence may be due to its use in flame retardants 
incorporated into carpet, furniture, and other building materials.

                             Table 1--Comparison of Contaminants in Clean Wood/Biomass and Processed C&D Wood \32\ \33\ \34\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Clean Wood/Biomass                                      Processed C&D Wood
              Contaminant               ----------------------------------------------------------------------------------------------------------------
                                                     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

[[Page 6698]]

 
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
--------------------------------------------------------------------------------------------------------------------------------------------------------


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    \32\ Sources: Clean Wood/Biomass ranges taken from a combination 
of EPA data and literature sources, as presented in EPA document 
Contaminant Concentrations in Traditional Fuels: Tables for 
Comparison, November 29, 2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm. Processed C&D Wood data from April 26, 
2013, submittal by Susan Bodine on behalf of BPA and CMRA, available 
in the Docket at EPA-HQ-RCRA-2013-0110.
    \33\ All units expressed in parts per million (ppm) on a dry 
weight basis.
    \34\ Upper Prediction Limit (UPL) calculations were made by 
commenters using EPA's ProUCL software, using either a lognormal 
distribution or nonparametric statistics, as appropriate.
---------------------------------------------------------------------------

    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:
    <bullet> 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).<SUP>35 36</SUP> Thus, the final rule does not include 
controls specific to fluorine.
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    \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.
---------------------------------------------------------------------------

    <bullet> 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

[[Page 6699]]

debris into a product fuel in all cases that would warrant processed 
C&D wood being categorically listed as a non-waste 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).
    <bullet> 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.
---------------------------------------------------------------------------

    \37\ Based on discussions with plant staff during an EPA tour of 
Industrial Disposal Services, Inc. Broad Run Recycling facility in 
Manassas, Virginia on May 23, 2013. The facility processes discarded 
C&D wood into a product fuel.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \38\ See 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.
---------------------------------------------------------------------------

    <bullet> 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 off-
specification 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 non-wastes 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\

[[Page 6700]]

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.
---------------------------------------------------------------------------

    \39\ On 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/.
---------------------------------------------------------------------------

    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 non-waste 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-by-case 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 CCA-treated 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\
---------------------------------------------------------------------------

    \40\ Fattah, Hassan Abdel, et al. ``Online Sorting of Recovered 
Wood Waste Using Automated X-Ray Technology'' Final Report; November 
30, 2009. See p. 2. Available in EPA-HQ-RCRA-2013-0110.
    \41\ Blassino, Monika, et al. ``Methods to control Fuel Quality 
at Wood Burning Facilities.'' Available in EPA-HQ-RCRA-2013-0110-
0033.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \42\ PAN stands for the chemical name of 1-(2-pyridylazo)-2-
naphthol, an orange-red solid with a molecular formula C15H11N3O. It 
is used to determine the presence of almost all metals excluding 
alkali metals. The stain is not specific to arsenic within CCA. It 
reacts with the copper, so that wood treated with any copper-based 
preservative will also test positive using this stain.
---------------------------------------------------------------------------

    Again, the Agency's concern was based on anticipated increases of 
CCA-treated wood in C&D debris, as well as the accuracy of visual 
sorting among C&D processors. Therefore, the Agency 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

[[Page 6701]]

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 non-
waste 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 CCA-treated wood is introduced 
into C&D debris.
---------------------------------------------------------------------------

    \43\ Blassino, Monika, et al. ``Methods to Control Fuel Quality 
at Wood Burning Facilities.'' EPA-HQ-RCRA-2013-0110-0033.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \44\ 76 FR 15478 (March 21, 2011); codified at 40 CFR 241.2.
    \45\ Management of disaster debris can involve significantly 
greater volumes. For example, prior to the 1994 Northridge 
earthquake in Los Angeles, one local company processed 150 tons of 
C&D debris per day. After the earthquake, the city picked up as much 
as 10,000 tons of C&D debris per day.
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    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

[[Page 6702]]

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\
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    \46\ 40 CFR 241.4 lists the categorical or ``Non-waste 
determinations for specific non-hazardous secondary materials when 
used as a fuel.''
    \47\ These 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 
non-waste under 40 CFR 241.4(a).''
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    The Agency has determined that a written certification statement 
developed specifically to address requirements of the categorical non-
waste 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,

[[Page 6703]]

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\
---------------------------------------------------------------------------

    \48\ 74 FR 54 (January 2, 2009), 75 FR 31883 (June 4, 2010), and 
76 FR 15526 (March 21, 2011).
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    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.
---------------------------------------------------------------------------

    \49\ 76 FR 15525-26.
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    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 non-waste. 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.
---------------------------------------------------------------------------

    \50\ See 76 FR 15491-92.
---------------------------------------------------------------------------

    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

[[Page 6704]]

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 non-
hazardous 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&D-derived 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 lead-based 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 non-wood 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\
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    \51\ For 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).
---------------------------------------------------------------------------

    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.<SUP>52 53</SUP> As a result, we have 
determined that copper should remain on the list.
---------------------------------------------------------------------------

    \52\ 75 FR 31863 and 76 FR 15484.
    \53\ Since 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.
---------------------------------------------------------------------------

    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)

[[Page 6705]]

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.
---------------------------------------------------------------------------

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

    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.
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    \55\ See 71 FR 21011 (April 14, 2014).
    \56\ See Blassino, Monika, et al. ``Methods to Control Fuel 
Quality at Wood Burning Facilities,'' EPA-HQ-RCRA-2013-0110-0033.
    \57\ Please 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.
---------------------------------------------------------------------------

    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 lead-based 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

[[Page 6706]]

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 non-waste 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 lead-based. 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.
---------------------------------------------------------------------------

    \58\ See 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.
---------------------------------------------------------------------------

    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 lead-based. The Agency finds that the lead 
elimination options for both XRF and documentation that a building has 
been tested for and does not include lead-based 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\
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    \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.
---------------------------------------------------------------------------

    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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    \60\ See Attachment 1 of comment submitted by Covanta Energy 
Corporation in Docket: EPA-HQ-RCRA-2013-0110-0084.

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[[Page 6707]]

    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 non-wood 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.
---------------------------------------------------------------------------

    \61\ 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.
---------------------------------------------------------------------------

    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

[[Page 6708]]

discussed above, it is a component of a product that is a commodity 
fuel.\62\
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    \62\ Comments 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.
---------------------------------------------------------------------------

    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 non-waste listing for resinated wood, which discussed 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 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 non-waste listing.
---------------------------------------------------------------------------

    \63\ Because 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.
    \64\ See 76 FR 80477 (December 23, 2011) for a broader 
discussion.
---------------------------------------------------------------------------

    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 CCA-treated 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\
---------------------------------------------------------------------------

    \65\ April 26, 2013 letter from Susan Bodine to Suzanne 
Rudzinski, available at Docket ID: EPA-HQ-RCRA-2013-0110-0025.
---------------------------------------------------------------------------

    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

[[Page 6709]]

who choose to exclude or remove CCA-treated 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.
---------------------------------------------------------------------------

    \66\ Blassino, Monika, et al. ``Methods to Control Fuel Quality 
at Wood Burning Facilities.'' Docket ID EPA-HQ-RCRA-2013-0110-0033.
---------------------------------------------------------------------------

    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

[[Page 6710]]

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 pre-sorts 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

[[Page 6711]]

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.
---------------------------------------------------------------------------

    \67\ A state may choose, however, to require a third party 
sampling program as an additional condition of this categorical non-
waste listing.
---------------------------------------------------------------------------

    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 non-hazardous 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

[[Page 6712]]

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 (in-lieu 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 non-
waste 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 semi-volatile 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.
---------------------------------------------------------------------------

    \68\ See Table 1 attached to PCA's comments on the proposed 
rule, Docket ID: EPA-HQ-RCRA-2013-0110-0081.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \69\ For a discussion of ``small acceptable range'' with regard 
to contaminant comparisons, see 76 FR 15523-24, (March 21, 2011).
---------------------------------------------------------------------------

    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 well-controlled 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 non-waste 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

[[Page 6713]]

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\
---------------------------------------------------------------------------

    \70\ See Attachment 4, page 1, footnote 2 of AF&PA's Comments to 
Docket: EPA-HQ-RCRA-2008-0329-0871.
    \71\ Because the incoming feedstock may contain a number of 
other materials, including metals, metals may also be recovered and 
sent for recycling.
---------------------------------------------------------------------------

    This final rule addresses only the PRR material that may be used as 
a non-waste 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 non-fiber 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 non-fiber 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 on-site 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.
---------------------------------------------------------------------------

    \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).
    \74\ A cogeneration plant is one that generates electricity and 
useful heat (instead of releasing it into the environment via 
cooling towers, for example) for heating purposes either on-site or 
for use nearby.
    \75\ National Council for Air and Stream Improvement, Inc. 
Technical Bulletin (TB) No. 806, ``Beneficial Use of Secondary Fiber 
Rejects,'' pp. 10-11. See attachment to AF&PA Comments to Docket, 
August 3, 2010 (docket document ID number: EPA-HQ-RCRA-2008-0329-
0871).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \76\ Another 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).
---------------------------------------------------------------------------

    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 cost-effectively 
recover energy from these materials. Last, the information submitted 
also demonstrated that OCC rejects are managed as a valuable commodity 
as they are managed in the same manner as the analogous fuel--bark (76 
FR 15456-7, March 21, 2011). Therefore, the Agency generally concluded 
that OCC rejects burned as a fuel within the control of the generator

[[Page 6714]]

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 off-
site 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\
---------------------------------------------------------------------------

    \77\ Generation, Management, and Processing of Paper Processing 
Residuals. Industrial Economics Corporation, October 26, 2012.
    \78\ 78 FR 9111, February 7, 2013 (page 9173).
---------------------------------------------------------------------------

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 co-products, generated from the recycling of 
paper, paperboard and corrugated containers.
---------------------------------------------------------------------------

    \79\ Secondary materials are materials that are 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.
---------------------------------------------------------------------------

    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 Non-
Hazardous 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 on-site 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.

[[Page 6715]]

a. Discard
    When deciding whether an NHSM should be listed as a categorical 
non-waste 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.
---------------------------------------------------------------------------

    \80\ AF&PA Technical Bulletin, Attachment 4, Recycling Process 
Residuals, p 2. September 10, 2009.
---------------------------------------------------------------------------

    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 non-fiber 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 waste-like, we considered the following attributes:
    <bullet> 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.
    <bullet> When these PRRs are combusted in mill boilers that burn 
solid fuel, they recover meaningful heating value;
    <bullet> Paper recycling mills that can combust PRRs burn a 
significant amount of what they generate on-site: 55 percent-100 
percent.
    <bullet> 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 off-site 
combustion), with mills optimizing their operation around boiler 
design.

[[Page 6716]]

Thus, we have determined that such off-site 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.
---------------------------------------------------------------------------

    \81\ American Forest and Paper Association phone communication 
to EPA, November 11, 2014 included in the docket to the final rule.
---------------------------------------------------------------------------

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 over-fire and/or under-grate air that assists in the efficient 
burning of wetter fuels. This allows paper recycling mills to burn 
clean cellulosic biomass fuels, such as hog fuel and bark, which is the 
primary fuel, as well as PRRs that have varying degrees of moisture 
content. 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\
---------------------------------------------------------------------------

    \82\ See AF&PA Comments, p 62, to Docket document ID: EPA-HQ-
RCRA-2008-0329-0871.
    \83\ See ``AF&PA-AWC Responses to EPA's Questions on PRR and 
Railroad Ties (May 2013).''
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 6717]]

combusted both on-site and offsite.\86\ See Table 2 of this preamble.
---------------------------------------------------------------------------

    \86\ In response to the ANPRM, commenters submitted data for OCC 
rejects, which show that OCC rejects meet the contaminant criterion.

          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
----------------------------------------------------------------------------------------------------------------
\a\ All 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.
\e\ Other PRR sample results indicate mercury was non-detect at 0.1 ppm; therefore, some samples could have been
  between the highest recorded value of 0.0724 ppm and the non-detect limit of 0.1 ppm.
\f\ Other PRR sample results indicate that selenium was non-detect at 7 ppm; therefore, some samples could have
  been between the highest recorded value of 3.29 ppm and the non-detect limit of 7 ppm.
\g\ Fluorine was not detected in any samples; the highest non-detect level is listed.

    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.<SUP>88 89</SUP> 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).
---------------------------------------------------------------------------

    \87\ National Council for Air and Stream Improvement, Inc. 
Technical Bulletin (TB) No. 806, ``Beneficial Use of Secondary Fiber 
Rejects,'' Appendix B, Table B1. TCLP Analysis of OCC Rejects. See 
attachment to AF&PA Comments to Docket, August 3, 2010 (document ID 
number; EPA-HQ-RCRA-2008-0329-0871).
    \88\ Section 1.2 of Method 1311 (Toxicity Characteristic 
Leaching Procedure) allows for a total constituent analysis in lieu 
of a TCLP analysis. That is, the Agency allows calculating a solid 
phase's maximum theoretical concentration expected in a TCLP extract 
by dividing a sample's total constituent concentration by 20, 
representing 20:1 liquid-to-solid ratio (by weight) employed in the 
TCLP procedure. See http://www.epa.gov/osw/hazard/testmethods/faq/faq_tclp.htm. While leaching extract concentrations do not reflect 
total constituent concentrations, multiplying the extract 
concentration (0.004 ppm) by 20 provides the minimum total 
concentration in the waste. However, because toluene is somewhat 
soluble in water (515 mg/L at 20[deg] 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.
    \89\ Concentrations in Traditional Fuels: Tables for Comparison, 
November 29, 2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm and in the docket (EPA-HQ-RCRA-2008-0329).
---------------------------------------------------------------------------

    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

[[Page 6718]]

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 make-up 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
    \92\ National Council for Air and Stream Improvement, Inc. 
Technical Bulletin (TB) No. 806, ``Beneficial Use of Secondary Fiber 
Rejects,'' pp. 10-11. See attachment to AF&PA Comments to Docket, 
August 3, 2010 (document ID: EPA-HQ-RCRA-2008-0329-0871).
    \93\ The Agency had stated that limited information indicated 
that OCC rejects are ``burned in municipal or commercial energy 
facilities (which appear to be municipal or commercial incinerators) 
and thus, would clearly indicate discard . . .'' 76 FR 15487.
---------------------------------------------------------------------------

    While the information generally indicates that these PRRs are 
managed much the same way as those burned on-site, it is based on only 
two cases and lacks sufficient detail to determine that PRRs when sent 
off-site for energy recovery continue to meet the legitimacy criteria 
and are not discarded. Therefore, we 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

[[Page 6719]]

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\
---------------------------------------------------------------------------

    \94\ See ``AF&PA-AWC Responses to EPA's Questions on PRR and 
Railroad Ties (May 2013).''
---------------------------------------------------------------------------

    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 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. (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\
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    \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.
---------------------------------------------------------------------------

    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 as-received 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).
---------------------------------------------------------------------------

    \96\ NCASI Technical Bulletin 806 included in docket number EPA-
HQ_RCRA-0329-0871.
---------------------------------------------------------------------------

    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 non-fiber 
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

[[Page 6720]]

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.
---------------------------------------------------------------------------

    \97\ Standard specifications for buying and selling of materials 
issued by the Institute of Scrap Recycling Industries Inc.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 off-site 
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 on-site 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 solid-
fuel 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.

[[Page 6721]]

    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 NO<INF>X</INF> 
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.
---------------------------------------------------------------------------

    \99\ Included in the docket for the final rule.
---------------------------------------------------------------------------

    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 co-product 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 co-products, 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

[[Page 6722]]

burned in solid fuel boilers that are designed to burn wet fuels.
---------------------------------------------------------------------------

    \100\ Secondary materials are materials that are 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.
---------------------------------------------------------------------------

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

    \101\ AWPA Standard P1/P13 and P2 provide specifications for 
coal-tar creosote used for preservative treatment of piles, poles 
and timber for marine, land and freshwater use. The character of the 
tar used, the method of distillation, and the temperature range in 
which the creosote fraction is collected all influence the 
composition of the creosote, and the composition may vary with the 
requirement of standard specifications. April 2010. Forest Products 
Laboratory. 2010 Wood Handbook. General Technical Report FPL_GTR-
190. Madison, WI.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \102\ American Forest & Paper Association, American Wood 
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \103\ In some cases, the reclamation company sells the crossties 
to a separate company for processing.
    \104\ American Forest & Paper Association, American Wood 
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \105\ M.A. Energy Resources LLC, Petition submitted to 
Administrator, EPA. February 2013.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \106\ American Forest & Paper Association, American Wood 
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------

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

[[Page 6723]]

contaminants at levels that are not comparable to or lower than those 
found in wood or coal, the fuel that creosote-treated 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.
---------------------------------------------------------------------------

    \107\ For 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.
---------------------------------------------------------------------------

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.
    <bullet> 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).
---------------------------------------------------------------------------

    \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.
    \109\ American Forest and Paper Association and American Wood 
Council's letter to George Faison, EPA. March 7, 2013.
---------------------------------------------------------------------------

    <bullet> 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    <bullet> 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.<SUP>111 112</SUP> 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 SO<INF>2</INF> emissions from sources and thus, encourage 
greater use of biomass or natural gas rather than fuel oil.\113\
---------------------------------------------------------------------------

    \111\ To the extent that any of these boilers burn fuel derived 
from waste, or any other solid waste, they would be subject to the 
CAA section 129 CISWI standards, and the Agency's rule in this 
document would not impact their regulatory status.
    \112\ American Forest and Paper Association and American Wood 
Council's letter to George Faison, EPA. March 7, 2013.
    \113\ Examples 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.
---------------------------------------------------------------------------

    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 non-waste fuel has to be able to burn the NHSM in the combustion 
unit, which in the case of CTRTs, would require the installation of a 
nozzle for the delivery of liquid fuel into the boiler, to meet the 
contaminant legitimacy criterion. 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

[[Page 6724]]

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.)
---------------------------------------------------------------------------

    \114\ See 78 FR 9149
---------------------------------------------------------------------------

    <bullet> 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.
    <bullet> Laboratory analyses for contaminants known or reasonably 
suspected to be present in creosote-treated railroad ties, and 
contaminants known to be significant components of creosote, 
specifically polycyclic aromatic hydrocarbons (i.e., PAH-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.
---------------------------------------------------------------------------

    \115\ The Agency requested these analyses based on the limited 
information previously available concerning the chemical makeup of 
CTRTs. That limited information included one well-studied sample 
from 1990 (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 post-combustion 
emissions.
---------------------------------------------------------------------------

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:
    <bullet> CTRTs must be burned in an existing stoker, bubbling bed 
or fluidized bed boiler;
    <bullet> the CTRTs can comprise no more than 40 percent of the fuel 
that is used on a monthly basis; \116\
---------------------------------------------------------------------------

    \116\ Statements 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.
---------------------------------------------------------------------------

    <bullet> the boiler that burned the CTRTs must have been designed 
to burn both fuel oil and biomass; and
    <bullet> 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:
    <bullet> 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

[[Page 6725]]

    <bullet> 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 
non-waste 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.
---------------------------------------------------------------------------

    \117\ As discussed in the NHSM final rule (76 FR 15520), 
``reasonable time frame'' is not specifically defined as such time 
frames vary among the large number of non-hazardous secondary 
materials and industries involved.
---------------------------------------------------------------------------

    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 as-fired energy content; or improve 
the ingredient characteristics. Minimal operations that result only in 
modifying the size of the material by shredding do not constitute 
processing for the purposes of the definition. Specifically, the Agency 
concludes that CTRTs meet the definition of processing in 40 CFR 241.3 
because:
    <bullet> Contaminants (spikes, nails, plates, etc.) are removed 
using a magnet. This magnetic removal of metals may occur several times 
during processing.
    <bullet> 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

[[Page 6726]]

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 end-
use 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 front-end 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\
---------------------------------------------------------------------------

    \118\ Prior to the CTRTs being processed as a product fuel, the 
CTRTs are considered solid wastes and would be subject to 
appropriate federal, state, and local requirements.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \119\ See 76 FR 15541.
    \120\ Fuel 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.
---------------------------------------------------------------------------

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

[[Page 6727]]

 
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.
\c\ Total VOC and SVOC ranges do not represent a simple sum of the minimum and maximum values for each
  contaminant. This is because minimum and maximum concentrations for individual VOCs and SVOCs do not always
  come from the same sample.
\d\ 16-PAH includes: Acenaphthene, acenaphthylene, anthracene, benz(a)anthracene, benzo(a)pyrene,
  benzo(b)fluoranthene, benzo(g,h,i)perylene, benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene,
  fluoranthene, fluorene, indeno(1,2,3-cd)pyrene, naphthalene, phenanthrene, and pyrene. 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 semi-volatile organic compound (SVOC) 
levels are not comparable to biomass. Given that CTRTs are a type of 
treated wood biomass, and any unit burning CTRTs typically burns 
untreated wood, 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.
---------------------------------------------------------------------------

    \121\ We note that for several SVOCs--cresols, 
hexachlorobenzene, and 2,4-dinitrotoluene, which were expected to be 
in creosote, and for which information was specifically requested in 
the February 7, 2013 NHSM final rule (78 FR 9111), the data 
demonstrate that they were not detectable, or were present at levels 
so low to be considered comparable.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \122\ As 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 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.

---------------------------------------------------------------------------

[[Page 6728]]

    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 
well-mixed and maintain temperatures within unit specifications.
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \124\ American Forest and Paper Association and American Wood 
Council's letter to George Faison, EPA. March 7, 2013. EPA-HQ-RCRA-
2013-0110-003.
    \125\ American Forest and Paper Association and American Wood 
Council's letter to George Faison, EPA. March 7, 2013. EPA-HQ_RCRA-
2013-0110-003.
    \126\ The 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.
---------------------------------------------------------------------------

    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 non-existent). 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.
---------------------------------------------------------------------------

    \127\ Contaminant 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).
---------------------------------------------------------------------------

    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).

[[Page 6729]]



                                              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.
\c\ Total VOC and SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum and maximum
  concentrations for individual VOCs and SVOCs do not always come from the same sample.
\d\ 16-PAH includes: Acenaphthene, acenaphthylene, anthracene, benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(g,h,i)perylene,
  benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene, fluoranthene, fluorene, indeno(1,2,3-cd)pyrene, naphthalene, phenanthrene, and pyrene. 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)

[[Page 6730]]

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).
---------------------------------------------------------------------------

    \128\ American Forest and Paper Association and American Wood 
Council--Letter to George Faison, EPA March 7, 2013. EPA-HQ-RCRA-
0110-003.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \129\ When 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.
---------------------------------------------------------------------------

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 non-
waste 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 re-define or ignore the ``design to 
burn'' concept, industry identified additional relevant factors to be 
considered in a categorical listing for CTRTs. Specifically:
    <bullet> 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.<SUP>130 131</SUP>
---------------------------------------------------------------------------

    \130\ Petitioner 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.
    \131\ To further support a finding of functional equivalency, 
petitioners submitted data claiming that stack emissions of PAHs 
(PAHs are higher in railroad ties than in coal or biomass), are 
controlled in the same way as all organic constituents present in 
the other fuels used by the boilers that combust railroad tie fuel. 
The Air Emissions Impact of Burning Railroad Tie-Derived Fuel. 
NCASI, January 2014.
---------------------------------------------------------------------------

    <bullet> 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.
    <bullet> CTRTs are commodity fuels--users pay $20-$30 per ton thus 
industry believe that the material is not being discarded.
    <bullet> 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.
---------------------------------------------------------------------------

    \132\ Petitioners 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.
---------------------------------------------------------------------------

    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

[[Page 6731]]

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.
---------------------------------------------------------------------------

    \133\ Section 112(a)(1) of the CAA defines the term ``major 
source'' to mean any stationary source or group of stationary 
sources located within a contiguous area that emit or have the 
potential to emit in the aggregate, 10 tons per year or more of any 
hazardous air pollutant or 25 tons per year or more of any 
combination of hazardous air pollutants.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \134\ The Agency recognizes natural gas as a source of clean 
energy. The burning of natural gas produces nitrogen oxides and 
carbon dioxide, but in lower quantities than burning coal or oil. 
Methane, a primary component of natural gas and a greenhouse gas, 
can also be emitted into the air when natural gas is not burned 
completely. Similarly, methane can be emitted as the result of leaks 
and losses during transportation. Emissions of sulfur dioxide and 
mercury compounds from burning natural gas are negligible. (See 
http://www.epa.gov/cleanenergy/energy-and-you/affect/natural-gas.html.)
---------------------------------------------------------------------------

    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:
    <bullet> 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
    <bullet> 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

[[Page 6732]]

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 co-generation 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

[[Page 6733]]

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\
---------------------------------------------------------------------------

    \135\ See EPA-HQ-RCRA-2013-0110-0076 in the docket for this 
final rule.
    \136\ http://www.rta.org/assets/docs/RTASponsoredResearch/Environmental/creosote%20tie%20evaluation%20article%20_4_.pdf.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \137\ See docket comment EPA-HQ-RCRA-2013-0110-0082.
---------------------------------------------------------------------------

    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 
non-waste determination for units that have been modified to burn 
biomass and natural gas instead of biomass and fuel oil.\138\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 record-keeping 
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 Sec.  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

[[Page 6734]]

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-to-biomass 
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 case-
by-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 (tire-derived fuel) as a categorical 
non[hyphen]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[hyphen]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[hyphen]waste fuel 
listing for CTRTs is inconsistent with previous rulemakings and 
non[hyphen]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[hyphen]waste fuel, not 
to put limitations on the use of the NHSM as non[hyphen]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[hyphen]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 gas-fired 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.<SUP>139 140</SUP> The Agency did not

[[Page 6735]]

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.
---------------------------------------------------------------------------

    \139\ See 78 FR 9154.
    \140\ See 76 FR 15494.
---------------------------------------------------------------------------

    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 non-
waste 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.
---------------------------------------------------------------------------

    \141\ We note that for several SVOCs--cresols, 
hexachlorobenzene, and 2,4-dinitrotoluene, which were expected to be 
in creosote, and for which information was specifically requested in 
the February 7, 2013 NHSM final rule (78 FR 9111), the data 
demonstrate that they were not detectable, or were present at levels 
so low to be considered comparable.
---------------------------------------------------------------------------

    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-non-waste 
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[hyphen]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

[[Page 6736]]

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 
non-waste 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 non-existent). 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.
---------------------------------------------------------------------------

    \142\ Contaminant 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \143\ As 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.
---------------------------------------------------------------------------

    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)).

[[Page 6737]]

    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.
---------------------------------------------------------------------------

    \144\ Included in the docket for this final rule.
---------------------------------------------------------------------------

    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 
borate-treated 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.
---------------------------------------------------------------------------

    \145\ See also discussion under Comments and Information 
Received on Other Types of Treated Wood section V.A.6.c.
---------------------------------------------------------------------------

    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 dual-treated 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 non-waste 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 shut-down 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.,

[[Page 6738]]

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 non-wastes. 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.
---------------------------------------------------------------------------

    \146\ Included in the docket for the final rule.
---------------------------------------------------------------------------

    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 
non-waste listing could not be completed prior to the January deadline. 
The Agency emphasizes, however, that facilities may also make self-
determinations 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.
---------------------------------------------------------------------------

    \147\ See 76 FR 15486.
---------------------------------------------------------------------------

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 non-waste 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

[[Page 6739]]

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 non-hazardous secondary material has not been discarded 
is a legitimate fuel as specified in paragraph (d)(1) of this section 
and on the following criteria:''
    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.
---------------------------------------------------------------------------

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

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.
---------------------------------------------------------------------------

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

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.
---------------------------------------------------------------------------

    \150\ Excluding minor administrative burden/cost (e.g., rule 
familiarization).
---------------------------------------------------------------------------

    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

[[Page 6740]]

the final rule has been placed in the rulemaking docket.
---------------------------------------------------------------------------

    \151\ U.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.
---------------------------------------------------------------------------

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 Non-Hazardous 
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 non-waste 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 non-waste 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

[[Page 6741]]

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\
---------------------------------------------------------------------------

    \152\ U.S. EPA, Office of Resource Conservation and Recovery. 
Summary of Environmental Justice Impacts for the Non-Hazardous 
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial 
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source 
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
---------------------------------------------------------------------------

    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.
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    \153\ The absence of site-specific coordinates for area sources 
prevents assessments of the demographics of populations located near 
these sources.
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    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.
---------------------------------------------------------------------------

    \154\ U.S. EPA, Office of Resource Conservation and Recovery. 
Summary of Environmental Justice Impacts for the Non-Hazardous 
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial 
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source 
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
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    For municipal solid waste and C&D landfills, we do not have 
demographic results specific to children. However, using the population 
below the poverty level as a rough surrogate for children, we found 
that within three miles of facilities that may experience diversions of 
one or more of these NHSMs, low-income populations, as a percent of the 
total population, are disproportionately high relative to the national 
average. Thus, to the extent that these NHSMs are diverted away from 
municipal solid waste or C&D landfills, any landfill-related emissions, 
discharges, or other negative activity potentially 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).
---------------------------------------------------------------------------

    \155\ U.S. EPA, Office of Resource Conservation and Recovery. 
Summary of Environmental Justice Impacts for the Non-Hazardous 
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial 
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source 
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011. 
The findings of that study, based on the most recent census data, 
are not expected to change as a result of this action.
    \156\ This figure is for overall population minus white 
population and does not include the Census group defined as ``White 
Hispanic.''
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    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:

[[Page 6742]]

    <bullet> 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.
    <bullet> Alternative materials transport patterns: Transportation 
emissions associated with NHSMs diverted from landfills to boilers are 
likely to be similar, except for on-site paper recycling residuals, 
where the potential for less off-site transport to landfills may result 
in reduced truck traffic and emissions where such transport patterns 
may pass through minority or low-income communities.
    <bullet> 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

0
1. The authority citation for part 241 continues to read as follows:

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

Subpart A--General

0
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:


Sec.  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 Non-Hazardous Secondary Materials That 
Are Solid Wastes When Used as Fuels or Ingredients in Combustion 
Units

0
3. Section 241.3 is amended by revising paragraphs (c)(1) introductory 
text and (d)(1)(iii) to read as follows:


Sec.  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 non-
hazardous secondary material, persons can use data for traditional fuel 
contaminant levels compiled from national surveys, as well as 
contaminant level data from the specific traditional fuel being 
replaced. To account for natural variability in contaminant levels, 
persons can use the full range of traditional fuel contaminant levels, 
provided such comparisons also consider variability in non-hazardous 
secondary material contaminant levels. Such comparisons are to be based 
on a

[[Page 6743]]

direct comparison of the contaminant levels in both the non-hazardous 
secondary material and traditional fuel(s) prior to combustion.
* * * * *

0
4. Section 241.4 is amended by adding paragraphs (a)(5) through (7) to 
read as follows:


Sec.  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 lead-based 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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