[Federal Register Volume 79, Number 71 (Monday, April 14, 2014)]
[Proposed Rules]
[Pages 21005-21033]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07375]



[[Page 21005]]

Vol. 79

Monday,

No. 71

April 14, 2014

Part III





Environmental Protection Agency





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40 CFR Part 241





Additions to List of Section 241.4 Categorical Non-Waste Fuels; 
Proposed Rule

Federal Register / Vol. 79 , No. 71 / Monday, April 14, 2014 / 
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

[EPA-HQ-RCRA-2013-0110; FRL-9900-55-OSWER]
RIN-2050-AG74


Additions to List of Section 241.4 Categorical Non-Waste Fuels

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
proposing amendments to the Non-Hazardous Secondary Materials (NHSM) 
regulation under the Resource Conservation and Recovery Act (RCRA). The 
NHSM 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 a February 7, 
2013 rule, EPA listed particular non-hazardous secondary materials as 
``categorical non-waste fuels'' provided certain conditions are met. 
EPA also indicated that it would consider adding additional non-
hazardous secondary materials to the categorical listings. Today's 
action proposes to add three materials to the list of categorical non-
waste fuels: Construction and demolition (C&D) wood processed from C&D 
debris according to best management practices; Paper recycling 
residuals, including old corrugated cardboard (OCC) 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; and Creosote treated railroad ties that are processed 
and combusted in units designed to burn both biomass and fuel oil.

DATES: Comments must be received on or before June 13, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2013-0110 by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Email: Comments may be sent by electronic mail (email) to 
rcra-docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA-2013-0110.
     Mail: Send comments to: RCRA Docket, EPA Docket Center, 
Mail Code 28221T, Environmental Protection Agency, 1200 Pennsylvania 
Avenue NW., Washington DC 20460, Attention Docket ID No. EPA-HQ-RCRA-
2013-0110. Please include two copies of your comments. In addition, 
please mail a copy of your comments on the information collection 
provisions to the Office of Information and Regulatory Affairs, Office 
of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th 
St. NW., Washington DC 20503.
     Hand delivery: Deliver two copies of your comments to: 
Environmental Protection Agency, EPA Docket Center, Room 3334, 1301 
Constitution Avenue NW., Washington DC, Attention Docket ID No. EPA-HQ-
RCRA-2013-0110. Such deliveries are only accepted during the docket's 
normal hours of operation and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2013-0110. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through http://www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, such as CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
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: For more detailed information on 
specific aspects of this rulemaking, 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; fax number: 703-308-0509; email: faison.george@epa.gov.

SUPPLEMENTARY 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:

 Generators and Potential Users \a\ of the New Materials Proposed 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

[[Page 21007]]

 
Landscaping Services.......................................       561730
Solid Waste Collection.....................................       562111
Solid Waste Landfill.......................................       562212
Solid Waste Combustors and Incinerators....................       562213
Marinas....................................................       713930
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\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 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. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or email. Clearly mark all information that 
you claim to be CBI. For CBI information in a disk or CD-ROM that you 
mail to EPA, mark the outside of the disk or CD-ROM as CBI and then 
identify electronically within the disk or CD-ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed as CBI must be 
submitted for inclusion in the public docket. Information so marked 
will not be disclosed, except in accordance with the procedures set 
forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions. The Agency may ask commenters to 
respond to specific questions or organize comments by referencing a 
Code of Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If estimating burden or costs, explain methods used to 
arrive at the estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate any concerns and 
suggest alternatives. Make sure to submit comments by the comment 
period deadline identified above.

C. How do I obtain a copy of this document and other related 
information?

    The docket number for this proposed action is Docket ID No. EPA-HQ-
RCRA-2013-0110. In addition to being available in the docket, an 
electronic copy of the proposed action is available on EPA's Web site 
at http://www.epa.gov/epawaste/nonhaz/define/. EPA posted a copy of the 
proposed action on this Web site, as well as other information related 
to this proposed action.
    Organization of this Document. The following outline is provided to 
aid in locating information in this preamble.

Preamble Outline

I. Statutory Authority
II. List of Abbreviations and Acronyms
III. Introduction
IV. Background
    A. History of the NHSM Rulemakings
    B. Background to Today's Proposed Rule
    C. How will EPA make a categorical non-waste determination?
V. Proposed Categorical Non-Waste Listing Determinations
    A. Construction and Demolition (C&D) Debris Processed According 
to Best Management Practices
    1. Detailed Description of C&D Wood
    2. C&D Wood Under Current NHSM Final Rules
    3. Comments Submitted on C&D Wood in the December 2011 Proposed 
Rule
    4. Scope of Proposed Categorical Non-Waste Listing for C&D Wood
    5. Rationale for Proposed Listing
    6. Summary and Request for Comment
    B. Paper Recycling Residuals (PRRs)
    1. Detailed Description of PRRs
    2. OCC Rejects Under Current NHSM Rules
    3. Scope of Proposed Categorical Non-Waste Listing for PRRs
    4. Rationale for Proposed Listing
    5. Summary and Request for Comment
    C. Creosote-Treated Railroad Ties (CTRTs)
    1. Detailed Description of CTRTs
    2. CTRTs Under Current NHSM Rules
    3. Scope of Proposed Categorical Listing for CTRTs
    4. Rationale for Proposed Listing
5. Summary and Request for Comment
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 Today's Proposal 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

I. Statutory Authority

    The EPA is proposing that additional non-hazardous secondary 
materials (NHSMs) be categorically listed as non-waste fuels in 40 CFR 
part 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).

II. List of Abbreviations and Acronyms

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

[[Page 21008]]

CISWI Commercial and Industrial Solid Waste Incinerator
CTRT Creosote-Treated Railroad Tie
EPA U.S. Environmental Protection Agency
FR Federal Register
HAP Hazardous Air Pollutant
ICR Information Collection Request
MACT Maximum Achievable Control Technology
NAICS North American Industrial Classification System
ND Non-detect
NESHAP National Emission Standards for Hazardous Air Pollutants
NHSM Non-Hazardous Secondary Material
OCC Old Corrugated Cardboard
OMB Office of Management and Budget
PAH Polycyclic Aromatic Hydrocarbons
ppm Parts Per Million
PRR Paper Recycling Residual
PVC Polyvinyl Chloride
RCRA Resource Conservation and Recovery Act
RIN Regulatory Information Number
SBA Small Business Administration
SO2 Sulfur Dioxide
SVOC Semi-volatile organic compound
TCLP Toxicity Characteristic Leaching Procedure
UMRA Unfunded Mandates Reform Act
UPL Upper Prediction Limit
U.S.C. United States Code
VOC Volatile organic compound
WWW Worldwide Web
XRF X-Ray Fluorescence

III. Introduction

    The Resource Conservation and Recovery Act (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.
    The meaning of ``solid waste,'' as defined under RCRA, is of 
particular importance as it relates to section 129 of the Clean Air Act 
(CAA). If material is a solid waste under RCRA, a combustion unit 
burning it 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. 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). 
CAA section 129 further states that 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.
    Regulations concerning non-hazardous secondary materials (NHSM) 
used as fuels or ingredients in combustion units are codified in 40 CFR 
part 241.\1\ Today's action proposes to amend the part 241 regulations 
by adding three NHSMs to the list of categorical non-waste fuels 
codified in 241.4(a). These new proposed categorical listings are for:
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    \1\ See 40 CFR 241.2 for the definition of non-hazardous 
secondary material.
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     Construction and demolition (C&D) wood processed from C&D 
debris according to best management practices (refer to Section V of 
the preamble or the proposed regulatory text for a full description of 
the categorical listing).
     Paper recycling residuals, including old corrugated 
cardboard (OCC) 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.
     Creosote-treated railroad ties that are processed and 
combusted in units designed to burn both biomass and fuel oil.

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 EPA made final on March 21, 2011 (76 FR 15456).
    The March 2011, NHSM final rule codified the standards and 
procedures to be used for identifying which NHSMs are ``solid waste'' 
when used as fuels or ingredients in combustion units. Under that rule, 
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. In addition, the Agency identified the following 
NHSMs as not being solid wastes:
     The NHSM is used as a fuel and remains under the control 
of the generator (whether at the site of generation or another site the 
generator has control over) that meets the legitimacy criteria (40 CFR 
241.3(b)(1));
     The NHSM is used as an ingredient in a manufacturing 
process (whether by the generator or outside the control of the 
generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));
     The NHSM has been sufficiently processed to produce a fuel 
or ingredient that meets the legitimacy criteria (40 CFR 241.3(b)(4)); 
or
     Through a case-by-case petition process, it has been 
determined that the NHSM handled outside the control of the generator 
has not been discarded, 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 that it would be initiating a 
new rulemaking proceeding to revise certain aspects of the NHSM 
rule.\2\ On December 23, 2011, EPA published a proposed rule, which 
addressed specific targeted amendments and clarifications to the 40 CFR 
part 241 regulations (76 FR 80452). These proposed 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 EPA originally intended. The amendments to the part 241 regulations 
were made final on February 7, 2013 with modifications to Sec.  241.2, 
Sec.  241.3 and the addition of Sec.  241.4, and include the following: 
\3\
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    \2\ See October 14, 2011, Letter from Administrator Lisa P. 
Jackson to Senator Olympia Snowe. See docket (EPA-HQ-RCRA-2008-0329-
1873).
    \3\ 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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     Revised Definitions: EPA revised three definitions 
discussed in the proposed rule: (1) ``clean cellulosic biomass,'' (2) 
``contaminants,'' and (3) ``established tire collection programs.'' In 
addition, based on comments received on the proposed rule, the Agency 
revised the definition of ``resinated wood.''
     Contaminant Legitimacy Criterion for NHSMs Used as Fuels: 
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. \4\

[[Page 21009]]

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.
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    \4\ Under 40 CFR 241.3(d)(1), the legitimacy criteria for fuels 
include: (1) management of the material as a valuable commodity 
based on the following factors--storage prior to use must not exceed 
reasonable time frames, and management of the material must be in a 
manner consistent with an analogous fuel, or where there is no 
analogous fuel, adequately contained to prevent releases to the 
environment; (2) the material must have a meaningful heating value 
and be used as a fuel in a combustion unit that recovers energy; and 
(3) the material must contain contaminants at levels comparable to 
or less than those in traditional fuels which the combustion unit is 
designed to burn.
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     Categorical Non-Waste Determinations for Specific NHSMs 
Used as Fuels: 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 that the following 
NHSMs are not solid wastes when burned as a fuel in combustion units 
and has categorically listed them in 241.4(a).\5\ (1) 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;
    (2) Resinated wood; (3) Coal refuse that has been recovered from 
legacy piles and processed in the same manner as currently-generated 
coal refuse;
    (4) 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.
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    \5\ In the March 2011 NHSM rule, 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.
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     Rulemaking Petition Process for Other Categorical Non-
Waste Determinations: EPA made final a rulemaking process in Sec.  
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 Sec.  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.
    The February 2013 amendments under Sec.  241.4, entitled ``Non-
Waste Determinations for Specific Non-Hazardous Secondary Materials 
When Used as a Fuel'' were in response to issues raised after 
promulgation of the March 2011, NHSM final rule concerning application 
of the legitimacy criteria, and the extent of information required to 
make a demonstration that an NHSM is not a solid waste. To provide 
additional clarity and assist in implementation of the rule, the Agency 
also codified in Sec.  241.4(b) a process for determining that certain 
NHSMs are not solid wastes when used as a fuel for the purpose of 
energy recovery, where the Agency has sufficient information and 
knowledge that these NHSMs are not wastes.
    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 (How Will EPA Make a Categorical Non-Waste Determination?) 
below for details on the process.

B. Background to Today's Proposed Rule

    As discussed in the February 2013 final rule,\6\ the Agency 
received comments on the December 23, 2011, proposed rule 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 final rule noted, however, that two NHSMs--paper 
recycling residuals (including 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 \7\ and expected to propose those listings in a subsequent 
rulemaking.
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    \6\ 78 FR 9111, February 7, 2013 (page 9172 in a section called 
``Other Materials for Which Additional Information Was Not 
Requested'').
    \7\ Comments on December 23, 2011 proposed rule supporting a 
categorical non-waste determination for paper recycling residuals: 
American Forest & Paper Association, et al. EPA-HQ-RCRA-2008-0329-
1946-A1; Georgia-Pacific LLC (GP) EPA-HQ-RCRA-2008-0329-1902-A1; 
National Alliance of Forest Owners (NAFO) EPA-HQ-RCRA-2008-0329-
1950-A2; Packaging Corporation of America (PCA) EPA-HQ-RCRA-2008-
0329-1966-A1; and United Steelworkers (USW) EPA-HQ-RCRA-2008-0329-
1910-A1. Comments supporting a categorical non-waste determination 
for paper recycling residuals and C&D wood: American Forest & Paper 
Association, et al. EPA-HQ-RCRA-2008-0329-1946-A1; Construction 
Materials Recycling Association (CMRA) EPA-HQ-RCRA-2008-0329-1928-
A1; Covanta Energy Corporation (Covanta) EPA-HQ-RCRA-2008-0329-1893-
A; Energy Recovery Council (ERC) EPA-HQ-RCRA-2008-0329-1927-A1; 
Georgia-Pacific LLC (GP) EPA-HQ-RCRA-2008-0329-1902-A1; Michigan 
Biomass EPA-HQ-RCRA-2008-0329-1905-A1; National Alliance of Forest 
Owners (NAFO) EPA-HQ-RCRA-2008-0329-1950-A2; United Steelworkers 
(USW) EPA-HQ-RCRA-2008-0329-1910-A1; Waste Management (WM) EPA-HQ-
RCRA-2008-0329-1957-A2; and Weyerhaeuser EPA-HQ-RCRA-2008-0329-1930-
A1.
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    In addition to the comments identified in the February 2013 rule, 
the Agency received supplementary information on these two NHSMs from 
stakeholders (see Section V). As discussed in the following sections, 
EPA believes that the information received to date, when taken 
together, supports a categorical determination of these materials as 
non-waste fuels and is today proposing to list them as categorical non-
waste fuels in section 241.4(a).
    Furthermore, the Agency identified creosote-treated railroad ties 
in the February 2013 final rule as a potential candidate for a 
categorical non-waste listing. However, the Agency also indicated that 
additional information would need to be submitted before this NHSM 
could be addressed. If such information supported the representations 
made by the 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

[[Page 21010]]

for this material as well.8 9 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 that 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.
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    \8\ The additional information EPA cited in the preamble to the 
final rule for which it solicited comment included: (1) a list of 
industry sectors, in addition to forest product mills, that burn 
creosote-treated railroad ties for energy recovery, (2) the types of 
boilers (e.g., kilns, stoker boilers, circulating fluidized bed, 
etc.) that burn creosote-treated railroad ties for energy recovery, 
(3) the traditional fuels and relative amounts (e.g., startup, 30%, 
100%) of these traditional fuels that could otherwise generally be 
burned in these types of boilers, (4) the extent to which non-
industrial boilers (e.g., commercial or residential boilers) burn 
creosote-treated railroad ties for energy recovery, and (5) 
laboratory analyses for contaminants known to be present in 
creosote-treated railroad ties or known to be significant components 
of creosote, specifically, polycyclic aromatic hydrocarbons (i.e., 
PAH-16), dioxins, dibenzofurans, hexachlorobenzene, biphenyl, 
quinoline, cresols, and 2,4-dinitrotoluene.
    \9\ 78 FR 9111, February 7, 2013 (page 9172)
---------------------------------------------------------------------------

    The Agency has reviewed the information submitted from stakeholders 
regarding creosote-treated railroad ties. As discussed in the following 
sections, EPA believes that the information received to date, when 
taken together, supports a categorical determination of the processed 
creosote-treated railroad ties as non-waste fuels when combusted in 
units designed to burn both biomass and fuel oil and is today proposing 
to list them as categorical non-waste fuels in section 241.4(a).

C. How will EPA make a categorical non-waste determination?

    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. The proposed determinations 
regarding processed C&D wood, paper recycling residuals, and creosote-
treated railroad ties described in the following sections are based on 
information submitted during the February 7, 2013, rulemaking effort, 
as well as supplementary information received since issuance of the 
rule.
    While the proposed categorical non-wastes are not based on 
rulemaking petitions, the criteria EPA used to assess these NHSMs as 
categorical non-wastes matches the criteria to be used by the 
Administrator to determine whether to grant or deny the categorical 
non-waste petitions.10 11 These determinations follow the 
criteria set out in Sec.  241.4(b)(5) to assess additional categorical 
non-waste petitions and follow the statutory standards as interpreted 
by EPA in the NHSM rule for deciding whether secondary materials are 
wastes. Pursuant to these criteria, the supporting information will 
ultimately need to demonstrate that each NHSM has not been previously 
discarded (i.e., was not initially abandoned or thrown away), or if 
discarded, has been sufficiently processed, and is legitimately used as 
a product fuel. The information (including supporting tests or studies) 
must also demonstrate that each NHSM is used as a non-waste fuel in a 
combustion unit and that it either meets the legitimacy criteria as 
described in Sec.  241.3(d)(1) or, if the NHSM does not meet the 
legitimacy criteria, that the NHSM is a legitimate product fuel, after 
balancing the legitimacy criteria with other relevant factors (e.g. the 
non-hazardous secondary material is integrally tied to production 
practices, or the material is functionally the same as the comparable 
traditional fuel, etc.).
---------------------------------------------------------------------------

    \10\ For a full discussion regarding the petition process for 
receiving a categorical non-waste determination, see 78 FR 9111, 
February 7, 2013 (page 9158).
    \11\ 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).
---------------------------------------------------------------------------

    Based on comments received on this information, the Agency will 
determine whether (or not) to list the three proposed NHSMs as 
categorical non-wastes in a final rule. Specific preliminary 
determinations on whether processed C&D wood, paper recycling 
residuals, and creosote-treated railroad ties should be listed as 
categorical non-wastes and how the information was assessed by EPA 
according to the criteria in Sec.  241.4(b)(5) are discussed in detail 
in Section V.
    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 creosote treated railroad ties is included in the 
current proposal, other treated wood materials identified in the 
Treated Wood Council's petition are not addressed in today's proposal. 
If upon completion of the Agency's review of the Treated Wood Council's 
petition 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.

V. Proposed Categorical Non-Waste Listing Determinations

    The sections below describe the three additional NHSMs that EPA is 
proposing to categorically list in section 241.4(a) as not being solid 
wastes when burned as a fuel in combustion units. Definitions for these 
three NHSMs are also proposed to be defined in 40 CFR 241.2 and we are 
taking comment on those definitions.

A. Construction and Demolition (C&D) Debris Processed According to Best 
Management Practices

1. Detailed Description of C&D Wood
    C&D wood is generated from the processing of debris from 
construction and demolition activities for the purposes of recovering 
wood. At construction activities, this debris results from cutting wood 
down to size during installation or from purchasing more wood than a 
project ultimately requires, while at demolition activities, this 
debris results from dismantling buildings and other structures or 
removing materials during renovation. Information previously compiled 
by the Agency indicates that C&D activities generate an estimated 33 to 
49 million tons of scrap wood each year, approximately half of which is 
of acceptable size, quality, and condition to be considered available 
for recovery. However, information on the amount of processed C&D wood 
that is burned for energy recovery is unavailable, although sources 
surveyed by EPA for the 2010 proposed Commercial and Industrial Solid 
Waste Incinerator (CISWI) rule and the National Emission Standards for 
Hazardous Air Pollutants for Area and Major Industrial, Commercial, and 
Institutional Boilers (Boilers) rule indicate that between 4.7 to 11.2 
million tons per year of processed C&D wood may be burned for energy 
recovery.\12\
---------------------------------------------------------------------------

    \12\ Materials Characterization Paper: Construction and 
Demolition Materials. February 3, 2011. EPA-HQ-RCRA-2008-0329-1811.
---------------------------------------------------------------------------

    Also, as discussed below, because clean C&D wood is considered 
``clean

[[Page 21011]]

cellulosic biomass'' and is already excluded from being a solid waste, 
we believe that today's proposal addresses C&D wood generated 
predominantly from demolition activities.\13\ However, clean C&D wood 
generated from construction activities, that is mixed with C&D debris 
that contains contaminated material would be subject to the same 
proposed practices and requirements described in this proposed 
rulemaking because it is not within the definition of ``clean 
cellulosic biomass.''
---------------------------------------------------------------------------

    \13\ 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. (See 78 FR 9138, February 7, 
2012 and 40 CFR 241.2.) Conversely, C&D wood that is not ``clean'' 
is that which must be processed to remove contaminants such as lead-
painted wood, treated wood containing contaminants, such as arsenic 
and chromium, metals and other non-wood materials. (See 78 FR 9139, 
February 7, 2013).
---------------------------------------------------------------------------

    Although contractors may segregate C&D debris at building sites, 
the common practice--at demolition sites in particular--is to send co-
mingled debris to independent C&D recycling or processing facilities. 
At these facilities, operators recover wood scraps from a mixture of 
building materials that often includes metals, concrete, plastics, and 
other items that are unsuitable for energy recovery in combustion 
units. Some operators use ``positive sorting'' techniques, meaning they 
specifically remove wood scraps from the co-mingled debris, picking out 
only desirable wood and leaving all other C&D debris behind for 
disposal or other recycling processes. Other operators use ``negative 
sorting'' techniques, meaning they achieve a similarly clean final 
product by removing or excluding contaminated or otherwise undesirable 
material from the C&D debris. Regardless of whether they use positive 
or negative sorting, processing facilities then grind the recovered 
wood to a specified size and deliver it to energy recovery facilities.
    C&D wood processing facilities can use a variety of techniques to 
remove or exclude debris unsuitable for a fuel product. Typically, 
processors use some combination of source control, inspection, sorting, 
and screening to meet the specifications identified by their customers 
(i.e., combustion facilities). The nature of the incoming C&D debris, 
the extent of material segregation prior to arrival at the processing 
facility, whether positive or negative sorting is employed, and the 
scale of the processing facility (e.g., the degree of sorting and 
number of screening devices) help determine which combination of 
practices will be most effective. Individual states also have different 
requirements related to the processing and combustion of C&D wood.\14\ 
Despite the variety of options, certain practices, which are described 
below in Section V.A.4 (Rationale for Proposed Listing), are essential 
to ensuring that processing the C&D debris produces a legitimate 
product fuel. In addition to excluding or removing a set list of C&D 
materials known to contain contaminants (e.g., certain types of treated 
wood), processors must take steps to minimize less obvious contaminant 
sources (e.g., lead-based paint). Consequently, the standards proposed 
in this rule are designed to ensure that the contaminants in the fuel 
that is burned will not be unpredictable, even though the sources of 
the wood may vary.
---------------------------------------------------------------------------

    \14\ This rulemaking does not change or replace existing state 
requirements regarding C&D wood. See Section VIII, State Authority, 
for further explanation.
---------------------------------------------------------------------------

2. C&D Wood Under Current NHSM Final Rules
    In both the March 2011 and February 2013 NHSM final rules, EPA 
discussed two scenarios under which the Agency would consider C&D wood 
to be a non-waste fuel.\15\ 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. Second, the Agency 
believes that wood recovered from C&D debris (i.e., contaminated wood) 
can be sufficiently processed to meet the legitimacy criteria and, 
thus, would be a non-waste fuel, although combustion facilities burning 
the material would need to keep records documenting the material's non-
waste status. Records would need to document not only how the 
processing operations meet the definition of processing in section 
241.2, but also how the fuel product meets the NHSM legitimacy 
criteria.16 17 The Agency believes that much of the C&D wood 
recovered from construction activities is unused and untreated, thereby 
falling under the definition of ``clean cellulosic biomass'' (i.e., the 
first scenario), and that much of the C&D wood currently recovered from 
demolition activities can be sufficiently processed to meet the 
legitimacy criteria (i.e., the second scenario).
---------------------------------------------------------------------------

    \15\ 76 FR 15456, March 21, 2011 (page 15485); and 78 FR 9111, 
February 7, 2013 (page 9138).
    \16\ Recordkeeping requirements for area source boilers are 
found at Sec.  63.11225(c)(2)(ii), while recordkeeping requirements 
for major source boilers are found at Sec.  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 them with documentation that the processing operations meets 
the definition of processing, as well as the legitimacy criteria, 
especially the contaminant legitimacy criterion.
---------------------------------------------------------------------------

3. Comments Submitted on C&D Wood in the December 2011 Proposed Rule
    Although the December 2011 NHSM proposed rule did not discuss or 
solicit comments on processed C&D wood, a number of commenters 
submitted comments arguing that processed C&D wood (i.e., that is 
recovered from demolition activities) should be categorically listed as 
a non-waste fuel under section 241.4(a), or otherwise a non-waste.\18\ 
The commenters' rationale for listing processed C&D wood as a non-waste 
fuel includes the following.
---------------------------------------------------------------------------

    \18\ Comments have been included in docket: EPA-HQ-RCRA-2008-
0329. Specifically, see the document ID's ending in -1902, 
-1910, -1950, -1930, -1928, -1946, -1957, -1927, -1893, and -1905.
---------------------------------------------------------------------------

     It is utilized in combination with other biomass materials 
to optimize and manage combustion in boilers due to its low moisture/
high heat characteristics.
     It is sufficiently processed to remove impurities.
     From a practical materials management standpoint, C&D 
materials are not discarded; collection of most of these materials is 
planned for, with C&D recycle sorting and processing yards receiving 
the materials as a destination and the point of generation of the fuel 
product.
     Comments detail the processing and test data available for 
C&D materials, which demonstrates their value as a fuel.
     Commenters noted that EPA has already included clean C&D 
materials in their proposed clean cellulosic biomass definition for 
traditional fuels, but EPA elsewhere identifies C&D materials that are 
not clean as subject to the legitimacy criteria.

The commenters argue, therefore, that EPA should remove doubt and list 
these materials in the newly proposed Sec.  241.4(a) as a non-waste 
fuel given their demonstrated fuel value and the industry that has been 
established for recycling these non-hazardous secondary materials into 
useful product fuel.
    Expanding further on these comments, several trade organizations 
submitted information in support of a categorical non-waste 
determination that would list processed C&D wood as a product fuel when 
burned in combustion units. The information suggested that a non-waste 
listing include all C&D wood processed in

[[Page 21012]]

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 
contend, to ensure that sufficient processing occurs and that C&D wood 
products--produced by different processors using different sorting 
techniques--are consistently managed as a valuable commodity, have 
meaningful heating values, and contain contaminants at levels 
comparable to or lower than traditional fuels. Instead, they argue that 
persons burning C&D wood for energy recovery only need to certify that 
the processed C&D wood came from a facility using the aforementioned 
sorting practices.
    Other commenters on the December 2011 NHSM proposed rule asserted 
that C&D wood should be regulated as a solid waste based on what they 
described as highly unpredictable contaminant levels. The commenters 
referenced specific combustion facilities that accepted C&D wood, 
including lead-painted wood and CCA-treated wood, as well as plastics 
and foreign debris.
4. Scope of Proposed Categorical Non-Waste Listing for C&D Wood
    EPA has reviewed the information submitted, including the study of 
contaminants in processed C&D wood from seven states. Based on this 
review, the Agency is proposing a categorical non-waste listing as 
follows: Construction and demolition (C&D) wood processed from C&D 
debris according to best management practices. Combustors of C&D wood 
must obtain a written certification from C&D processing facilities that 
the C&D wood has been processed by trained operators in accordance with 
best management practices.\19\ 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,\20\ pentachlorophenol, chromated copper arsenate, or 
other copper, chromium, or arsenical preservatives. In addition:
---------------------------------------------------------------------------

    \19\ If a person does not believe that the processed C&D wood 
meets the categorical listing, the processed C&D wood may still be 
considered a non-waste fuel (on a case-by-case basis), although any 
combustor that burns such processed C&D wood would need to keep 
records documenting the materials non-waste status pursuant to Sec.  
63.11225(c)(2)(ii) and Sec.  63.7555(d)(2).
    \20\ Although industry trade groups did not list creosote 
treated wood as wood that is excluded or removed, they provided 
information indicating that C&D debris can include creosote treated 
wood. Based upon the contaminants present in creosote treated wood 
and the types of boilers that burn C&D wood (i.e., those that are 
designed to burn clean wood and biomass), we believe it appropriate 
to require operators to exclude or remove creosote treated wood. 
With respect to creosote and as discussed later in Section C, the 
Agency evaluated data provided for creosote-treated railway ties and 
determined that boiler design was an integral factor in satisfying 
the contaminant legitimacy criterion.
---------------------------------------------------------------------------

    (i) 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.
    (ii) C&D processing facilities that use negative sorting--where 
operators remove contaminated or otherwise undesirable materials from 
co-mingled debris--must remove fines (i.e., small-sized particles that 
may contain relatively high concentrations of lead and other 
contaminants) and either remove painted wood, use X-ray Fluorescence to 
detect and remove lead-painted wood, or require documentation that a 
building has been tested for and does not include lead-based paint 
before accepting demolition debris from that building.
5. Rationale for Proposed Listing
a. Processing of C&D Wood
    EPA considers the wood present in C&D debris to be a solid waste 
prior to processing, and persons must transform the debris into a 
legitimate product fuel in order to burn the material as a non-waste 
fuel.\21\ Based on the information submitted to date, EPA concludes 
that C&D wood processed according to best management practices--
provided those management practices satisfy the conditions set forth in 
today's proposal--would be sufficiently processed such that it would be 
transformed into a non-waste fuel product. In accordance with 40 CFR 
241.2, processing must include operations that transform discarded NHSM 
into a non-waste fuel or non-waste ingredient, including operations 
necessary to: remove or destroy contaminants; significantly improve the 
fuel characteristics (e.g., sizing or drying of the material, in 
combination with other operations); chemically improve the as-fired 
energy content; or improve the ingredient characteristics. Minimal 
operations that result only in modifying the size of the material by 
shredding do not constitute processing for the purposes of the 
definition.
---------------------------------------------------------------------------

    \21\ 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.''
---------------------------------------------------------------------------

    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,\22\ would result in 
significant contaminant removal. In addition, the removal of concrete, 
aggregates, dirt, and other non-combustible material will significantly 
increase the material's energy value. Finally, grinding all remaining 
wood to a specified size will allow combustors to transport, store, and 
use processed C&D wood in the same manner as virgin wood and biomass 
materials.
---------------------------------------------------------------------------

    \22\ CAA regulations provide additional safeguards to ensure 
asbestos is removed from buildings prior to demolition. Part 61, 
subpart M, Sec.  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).
---------------------------------------------------------------------------

    As noted earlier in Section V.A.1 (Detailed Description of C&D 
Wood), the

[[Page 21013]]

nature of the incoming C&D debris, the extent of material segregation 
prior to arrival at the processing facility, whether positive or 
negative sorting is employed, and the scale of the processing facility 
(e.g., the degree of sorting and number of screening devices) determine 
which combination of practices will be most effective. The Agency 
believes that the proposed best management practices when performed by 
trained operators will address the variability within the industry, 
such that C&D processing facilities will produce a non-waste fuel 
product with contaminants that are no greater than clean biomass, 
regardless of the characteristics (e.g., extent of material segregation 
prior to arrival at the processing facility) that can influence the 
level of contaminants in the final wood product. Thus, the Agency 
believes that such processing meets the definition of processing in 40 
CFR 241.2.
    Further, to ensure that the C&D wood is processed according to best 
management practices, the Agency believes it is important for the 
processor to certify that they are meeting such best management 
practices, using trained operators.\23\ Therefore, we are also 
proposing that the combustor be required to obtain a written 
certification from the C&D processor(s) that they have used trained 
operators in processing the C&D debris in accordance with best 
management practices to produce processed C&D wood. The combustor has 
the ultimate responsibility to determine that the C&D wood has been 
sufficiently processed.
---------------------------------------------------------------------------

    \23\ Results from a pilot study conducted in the state of 
Florida indicate that the processing facilities that were highly 
successful in identifying treated wood (i.e., CCA-treated wood) had 
extensive worker training programs in place. See Blassino, Monika, 
et al. ``Methods to Control Fuel Quality at Wood Burning 
Facilities.''
---------------------------------------------------------------------------

b. Legitimacy Criteria
    In determining whether to list processed C&D wood as a categorical 
non-waste fuel in Sec.  241.4(a), the Agency evaluated the legitimacy 
criteria in 40 CFR 241.3(d)(1)--that is, whether it is managed as a 
valuable commodity, whether it has a meaningful heating value and is 
used as a fuel in a combustion unit to recover energy, and whether 
contaminants or groups of contaminants are at levels comparable to or 
less than those in the traditional fuel the unit is designed to burn. 
To the extent that processed C&D wood does not meet one or more of the 
legitimacy criteria, the Agency may consider other relevant factors in 
determining whether to propose to list C&D wood as a categorical non-
waste fuel (40 CFR 241.4(b)(5)(ii)) (see discussion on formaldehyde 
below).
i. Managed as a Valuable Commodity
    Regarding the first legitimacy criterion, EPA believes that C&D 
trade organizations have demonstrated that both processors and 
combustors manage processed C&D wood as a valuable commodity. 
Specifically, after processing, including grinding to size, processors 
ship the material to energy recovery facilities in covered chip vans or 
semi-trailers. The material is then stored on-site at the combustion 
facilities in wood fuel storage yards and generally used within 90 days 
of delivery. Because storage does not exceed reasonable time frames, 
and management is similar to that of virgin wood and biomass, the 
Agency has determined that processed C&D wood meets this legitimacy 
criterion.
ii. Meaningful Heating Value and Used as a Fuel To Recover Energy
    With respect to the second legitimacy criterion, EPA believes C&D 
trade organizations have demonstrated that processed C&D wood has a 
meaningful heating value and is used as a fuel to recover energy. 
Specifically, information submitted to the Agency demonstrates that 
processed C&D wood has an average as-fired energy content of 6,640 Btu/
lb,\24\ which is greater than 5,000 Btu/lb, which the Agency considers 
to have a meaningful heating value (see 76 FR 15541, March 21, 2011). 
This also compares favorably to information compiled by EPA in 2011, in 
which 95 samples of unadulterated timber burned by major source boilers 
across the country exhibited an average as-fired energy content of 
5,150 Btu/lb.\25\ According to C&D trade organizations, energy recovery 
facilities purchase processed C&D wood and burn the material as fuel to 
generate electricity. Thus, EPA has determined that processed C&D wood 
meets this legitimacy criterion.
---------------------------------------------------------------------------

    \24\ Appendix A of April 26, 2013, submittal from Susan Bodine 
on behalf of BPA and CMRA.
    \25\ 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.
---------------------------------------------------------------------------

iii. Contaminants Comparable to or Lower Than Traditional Fuels
    To address the third legitimacy criterion, C&D trade organizations 
provided EPA with contaminant analyses of more than 220 samples of 
processed C&D wood from nine combustion facilities in California, 
Maine, Massachusetts, Minnesota, New York, the state of Washington, and 
Wisconsin. EPA has compared the contaminant levels found in the 
processed C&D wood to the contaminant levels found in clean wood and 
biomass materials since any unit burning processed C&D wood can clearly 
burn clean wood and biomass materials as well.
    Summary results for the contaminant comparisons are presented in 
Table 1, with the contaminants most likely to be present in unprocessed 
C&D debris listed first. Specifically, arsenic and chromium are likely 
present due to CCA-treated wood; lead due to lead-based paint chips; 
mercury due to light bulbs, ballasts, thermostats and other mercury-
containing devices present in buildings; chlorine due to PVC and other 
plastics; sulfur due to plaster or drywall containing gypsum, a sulfate 
mineral; formaldehyde due to resinated wood; and pentachlorophenol due 
to utility poles and other treated wood products currently accepted by 
some combustion facilities. Although sources of fluorine in C&D debris 
are less clear, the contaminant's presence may be due to its use in 
flame retardants incorporated into carpet, furniture, and other 
building materials.

            Table 1--Comparison of Contaminants in Clean Wood/Biomass and Processed C&D Wood 26 27 28
----------------------------------------------------------------------------------------------------------------
                                   Clean Wood/                          Processed C&D wood
                                     Biomass     ---------------------------------------------------------------
          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
Chromium......................  ND--340.........         n = 212            45.0             116             283

[[Page 21014]]

 
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            1567            3521
Fluorine......................  ND--300.........          n = 86            45.9             139             313
Sulfur........................  ND--8700........         n = 183            1300            2200            7300
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            3900            8000           12600
----------------------------------------------------------------------------------------------------------------

     
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    \26\ 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.
    \27\ All units expressed in parts per million (ppm) on a dry 
weight basis.
    \28\ 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:
     Fluorine: While only one sample out of 45 samples of 
processed C&D wood exceed the range for fluorine in clean wood and 
biomass, the Agency still considers fluorine to be at levels comparable 
to those found in clean wood and biomass since this lone sample is 
present within a small acceptable range (i.e., 313 ppm is comparable to 
300 ppm).29 30
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    \29\ 76 FR 15523-24, March 21, 2011.
    \30\ 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.
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     Lead: Despite efforts by C&D processing facilities to 
remove lead, the data demonstrate that some processing facilities do a 
better job than others, with isolated samples from Massachusetts 
reaching 407 and 437 ppm lead, and one of seven samples from Wisconsin 
reaching 482 ppm lead. While most of the 224 samples detected lead 
within the range found in clean wood and biomass materials (ND--340 
ppm), it is important to recognize that each high sample could 
represent a large amount of processed C&D wood produced by an outlier 
facility. Accordingly, an overly broad categorical non-waste listing 
could include processed C&D wood from facilities where the final 
product consistently contains high lead levels, amounts that would not 
be considered a normal part of clean wood or biomass. In this instance, 
one facility in Massachusetts provided a composite sample for each of 
seven days, and two out the seven samples exceeded the range of lead 
values found in clean wood and biomass. That could mean more than 28 
percent of the processed C&D wood produced by that facility exceeds 
lead levels found in clean wood and biomass. C&D processing facilities 
have options for minimizing lead concentrations in the processed C&D 
wood they produce, and information submitted with the contaminant 
dataset indicates that the two facilities (one in Massachusetts, the 
other in Wisconsin) exhibiting the highest lead levels shared similar 
lead minimization strategies. Although both facilities accept painted 
wood, neither uses X-ray Fluorescence (XRF) analyzers to detect and 
remove lead-based painted wood. Nor do they require documentation of a 
building inspection that includes testing for lead-based paint. By 
comparison, the Washington facility included in the dataset requires 
documentation of XRF testing before accepting demolition debris from a 
particular building, and as evidenced by a maximum lead concentration 
of 26 ppm, lead concentrations in the processed C&D wood it burns 
tested lower than for any other facility in the dataset. The Minnesota 
facility included in the dataset does not accept painted wood, and as 
evidenced by a maximum lead concentration of 110 ppm, lead 
concentrations in the processed C&D wood it burns are also well within 
the range of clean wood and biomass materials. Both the Massachusetts 
facility and the Wisconsin facility relied solely on removing ``fines'' 
to control lead levels. Fines are small-sized particles that may 
contain relatively high concentrations of contaminants, and facilities 
can remove them before and after shredding via screens or flotation. 
EPA does not dispute that the removal of fine particles can reduce the 
levels of lead and other contaminants, particularly for C&D processing 
facilities using negative sorting. Without additional measures, 
however, this strategy does not appear to remove sufficient lead to 
transform the C&D debris into a product fuel in all cases that would 
warrant processed C&D wood being categorically listed as a non-waste 
fuel. As a result, the Agency is proposing conditions related to lead 
removal as part of the categorical listing for processed C&D wood. 
Specifically, EPA is proposing the following conditions:
    [cir] Facilities using positive sorting must either: (1) Exclude 
painted wood

[[Page 21015]]

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.
    [cir] Facilities using negative sorting must remove fine particles, 
which may include asbestos fibers and other contaminants in addition to 
lead, and they must also either: (1) remove painted wood via the 
sorting process, (2) use XRF to detect and remove lead-painted wood, or 
(3) require documentation that a building has been tested for and does 
not include lead-based paint before accepting demolition debris from 
that building.
    The Agency believes, based on the available information, that 
facilities complying with these conditions would produce processed C&D 
wood that contains lead at levels comparable to those in clean wood and 
biomass.
     Pentachlorophenol: The presence of pentachlorophenol in 
some processed C&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. EPA 
restricted the use and sale of pentachlorophenol in 1987, with no 
registered residential uses allowed for the past 26 years. The Agency 
believes that the pentachlorophenol concentrations in processed C&D 
wood are a direct result of easily identified wood products, 
predominantly utility poles, that processing facilities can choose to 
exclude or remove prior to grinding recovered C&D wood.\31\ Therefore, 
under the regulatory conditions proposed in today's rule, processing 
facilities must exclude or remove these known sources of 
pentachlorophenol from their final product fuel for it to be considered 
a categorical non-waste fuel.
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    \31\ 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.
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     Formaldehyde: For C&D debris processed pursuant to best 
management practices, inclusive of the regulatory conditions in today's 
proposal, formaldehyde (present in concentrations as high as 176.8 ppm 
versus 27 ppm in clean wood/biomass) is the only remaining contaminant 
that raises questions as to whether it meets the contaminant legitimacy 
criterion. Although the situation appears similar to the categorical 
non-waste listing for resinated wood in section 241.4(a)(2), details 
surrounding use of the two NHSMs as fuel are not the same. In the case 
of resinated wood, as defined in section 241.2, the Agency determined 
that energy recovered from the combustion of manufacturing process 
residues and off-specification resinated wood is integrally tied to the 
industrial production process. The equivalent for C&D wood would be 
sawmills reliant on recovering energy from sawdust and off-
specification lumber to power the construction lumber production 
process. Sawmills may do this, but that is not the scenario commenters 
have described and the Agency is evaluating.
    While EPA disagrees with petitioners' claims that resinated wood 
components in C&D debris are categorical non-wastes and the corollary 
that formaldehyde concentrations are therefore irrelevant, the Agency 
agrees that additional factors are worth considering in determining 
whether to propose to list processed C&D wood categorically as a non-
waste fuel. First, formaldehyde concentrations in processed C&D wood 
may reach 176.8 ppm, but are lower than in pure resinated wood, which 
may reach 200 ppm. National rules developed by the CARB Composite Wood 
ATCM, per Public Law 111-199, will ensure that newly produced resinated 
wood will contain even less formaldehyde in the future by setting 
limits on how much formaldehyde may be released.\32\ Second, for many 
combustors, processed C&D wood scraps that include resinated wood 
components, actually have added value and are either selected for (in 
the case of positive sorting) or specifically not removed (in the case 
of negative sorting) because the wood has been kiln-dried prior to use 
in construction. Kiln-dried wood has a greater heating value than 
virgin wood, almost double in some cases. Kiln-dried wood also has a 
more consistent moisture content; an equally important benefit to 
combustors because a consistent fuel improves combustion efficiency and 
leads to reduced emissions of particulate matter, carbon monoxide and 
other organic hazardous air pollutants.\33\
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    \32\ On May 29, 2013, EPA proposed two rules to protect the 
public from the risks associated with exposure to formaldehyde. The 
proposals would implement the Formaldehyde Standards for Composite 
Wood Products Act (Title VI of the Toxic Substances Control Act): 
one will implement the Act's emission standards and the other will 
ensure products meet the TSCA formaldehyde emission standards. See 
http://www.epa.gov/oppt/chemtest/formaldehyde/.
    \33\ At this time, the Agency is not requiring resinated wood to 
be excluded or removed from C&D debris as part of best management 
practices, but is requesting comment on the decision to balance 
elevated formaldehyde levels with greater heating value and 
consistent moisture content. See Section 6. Summary and Request for 
Comments.
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    Therefore, based on all available information, including a careful 
analysis of contaminant levels, the Agency is proposing to 
categorically list in 40 CFR 241.4(a) processed C&D wood using trained 
operators in accordance with best management practices and certified as 
such by the processor as a non-waste fuel.\34\ After weighing the 
evidence, the Agency has concluded that, provided the regulatory 
conditions in today's proposal are met, the processing of mixed C&D 
debris transforms the material into a product fuel.
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    \34\ The categorical listing proposed in this rule would allow 
material to be considered clean biomass without having to test each 
batch of processed wood for contaminant levels. Instead, the 
material could be considered clean biomass if certain practices are 
followed, as described in the rule.
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6. Summary and Request for Comment
    EPA believes it has sufficient information to determine that C&D 
debris that is processed by trained operators according to best 
management practices is not a solid waste when used as a fuel, provided 
those practices meet the criteria proposed today. The Agency invites 
comment on this proposed categorical non-waste determination, and 
specifically on the following items:
    Processing Techniques for lead and pentachlorophenol. We request 
comment on the efficacy of specific processing techniques related to 
lead referenced in today's proposal, 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.
    Formaldehyde levels. The Agency seeks 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.\35\ Any additional factors that

[[Page 21016]]

would be appropriate to consider are welcome.
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    \35\ Where any one of the legitimacy criteria in Sec.  
241.3(d)(1) is not met, ``other relevant factors'' may be considered 
by the Administrator when granting or denying a non-waste 
determination. See Sec.  241.4(b)(5)(ii).
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    CCA-treated wood. As proposed, CCA-treated wood is to be excluded 
or removed from C&D debris. Although the data submitted to the Agency 
indicates that arsenic and chromium concentrations in processed C&D 
wood are comparable to levels found in traditional fuels, there is some 
concern that because a majority of CCA-treated wood is still in use, we 
will see an increase in the amount of CCA-treated wood in C&D debris. 
Currently, CCA-treated wood can represent up to 30% of the C&D wood 
waste stream.\36\ The concern is 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.\37\ 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% and 90% of the pre-sorted wood as untreated wood, had 
provided extensive training to its employees. The third facility 
correctly identified 60% as untreated wood. 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) \38\ 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.
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    \36\ Fattah, Hassan Abdel, et al. ``Online Sorting of Recovered 
Wood Waste Using Automated X-Ray Technology'' Final Report; November 
30, 2009. See p. 2.
    \37\ Blassino, Monika, et al. ``Methods to control Fuel Quality 
at Wood Burning Facilities.''
    \38\ 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 is 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 requests comment on 
the viability of either requiring, as best management practices, C&D 
processors to implement formal training programs that emphasize sorting 
of treated wood from untreated wood \39\ or the use of XRF technology 
to provide greater certainty that CCA-treated wood is removed from the 
processed C&D wood.
---------------------------------------------------------------------------

    \39\ The Agency is proposing sorting by ``trained operators'' 
under best management practices. Here, the Agency requests comment 
regarding whether training programs should include a component 
specific to sorting treated wood from untreated wood.
---------------------------------------------------------------------------

    Disaster Debris. The definition for C&D wood as proposed does not 
include disaster debris. The Agency has defined ``clean cellulosic 
biomass'' to include clean wood found in disaster debris.\40\ However, 
disaster debris wood that is mixed with contaminated materials (e.g., 
lead-based painted wood, asbestos containing materials, etc.) has not 
been specifically addressed. The Agency notes 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.\41\ Despite these concerns, the Agency requests 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 and eligible 
for the categorical non-waste listing. Commenters should provide any 
data or information that demonstrates mixed disaster debris wood, once 
processed, produces wood that contains contaminants comparable to or 
lower than biomass and virgin wood. Further, whether other conditions 
imposed by contingency plans, for example, can facilitate the removal 
of contaminated material found in disaster debris.
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    \40\ 76 FR 15478 (March 21, 2011); codified at Sec.  241.2.
    \41\ 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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    Trained operators. The proposed 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 believes 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 fuel 
product. Therefore, we request comment on whether the Agency should 
require that C&D processors have formal training programs in place as 
part of the best management practices, as well as whether processors 
would be required to keep records as a condition of the categorical 
listing to demonstrate that such operators have been formally trained. 
The Agency is not prescribing what a training program could include at 
this time. 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. Thus, the Agency also seeks comment on 
training program requirements that would be flexible enough to address 
the variability of the incoming C&D debris, but that provide added 
assurance that C&D processing facilities are producing a non-waste fuel 
product with contaminants that are no greater than clean wood/biomass.
    Written Certification. As proposed, the combustor would need 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 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 is the Agency's understanding that 
purchase agreements and contracts are common between a processor/
supplier and combustor. Thus, we request comment 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 this proposal 
would be clearer and more effective. We would note that the existing 
record keeping requirements for combustors that combust NHSMs as fuels 
listed under section 241.4,\42\ the purchase agreement, contract, or 
other document that would meet the written certification requirement 
would be considered a ``record'' which satisfies the record keeping 
requirements of sections 60.2740(u) (Emissions Guidelines) and 
60.2175(w) (New Source Performance Standards) for CISWI units and 
sections 63.11225(c)(2)(ii) for area source boilers and 63.7555(d)(2) 
for major source boilers.\43\
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    \42\ Section 241.4 lists the categorical or ``Non-waste 
determinations for specific non-hazardous secondary materials when 
used as a fuel.''
    \43\ These sections state that for units combusting NHSM as fuel 
per Sec.  241.4, you must keep records documenting that the material 
is listed as a non-waste under Sec.  241.4(a).

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[[Page 21017]]

B. Paper Recycling Residuals (PRRs)

1. Detailed Description of PRRs
    Paper recycling residuals (PRRs) are a co-product of the paper 
recycling manufacturing process and are generated on-site at paper 
recycling mills. The feedstock used in paper recycling mills, where 
PRRs are generated, is post-consumer paper, such as magazines, 
newspaper, office paper, and old corrugated containers obtained through 
various commercial and residential recycling programs or purchased from 
retail establishments.\44\ However, some paper recycling mills' 
feedstock is limited solely to old corrugated containers. The paper 
recycling process generates two materials: (1) Recovered fibers used to 
make new paper and paperboard products; and (2) processing residuals 
(or PRRs) that are not suitable for making new paper products, but are 
landfilled, sent for metals recycling, or used as a fuel.\45\ Today's 
proposal considers only the processing residuals, or ``PRRs,'' that 
primarily consist of unsuitable wood fibers that are used as a 
fuel.\46\ See Section V.B.4 (Rationale for Proposed Listing) below for 
a more detailed description of how and where PRRs are generated in the 
paper recycling process.
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    \44\ See Attachment 4, page 1, footnote 2 of AF&PA's Comments to 
Docket: EPA-HQ-RCRA-2008-0329-0871.
    \45\ Because the incoming feedstock may contain a number of 
other materials, including metals, metals may also be recovered and 
sent for recycling.
    \46\ Although we consider PRRs to be ``primarily'' composed of 
unsuitable fibers, PRRs may also include small amounts of solids and 
non-fiber packaging materials as described by the listing of 
contaminants, when burned as fuel.
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    Current data indicates that 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.\47\ 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.\48\ For the PRRs burned off-site, they appear to be used to 
supplement other fuels burned at either a commercial cogeneration plant 
\49\ or commercial biomass gasification plant.\50\
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    \47\ Generation, Management, and Processing of Paper Processing 
Residuals. Industrial Economics Corporation, October 26, 2012.
    \48\ Generation, Management, and Processing of Paper Processing 
Residuals. Industrial Economics Corporation, October 26, 2012. This 
is posted within the docket for today's rulemaking (Docket: EPA-HQ-
RCRA-2013-0110).
    \49\ 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.
    \50\ 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).
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    The Agency previously understood PRRs to be a term industry 
commonly used to refer to Old Corrugated Container (OCC) rejects.\51\ 
Since publication of the March 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, OCC rejects refers to only one grade of recovered fiber, 
whereas PRRs encompass residuals from all types of fiber grades. 
Therefore, in today's proposal, the Agency is including OCC rejects 
within the broader PRR universe in a proposed categorical non-waste 
determination.
---------------------------------------------------------------------------

    \51\ Another term industry often uses when referring to OCC 
rejects is ``recycling process residuals'' which was identified in 
the March 2011 final rule (76 FR 15486).
---------------------------------------------------------------------------

2. OCC Rejects Under Current NHSM Rules
a. March 2011 NHSM Final Rule
    In the March 2011 NHSM final rule, EPA disagreed with those 
commenters who argued that OCC rejects should be considered a 
traditional or alternative fuel. On the other hand, we believed 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 indicated 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, March 21, 2011 (pages 15486-7). Therefore, the Agency 
generally concluded that OCC rejects burned as a fuel within the 
control of the generator were not solid wastes.
b. February 2013 NHSM Final Rule
    Under the February 2013 final rule, we reiterated our belief that 
paper recycling residuals (which include OCC rejects) are not discarded 
when burned under the control of the generator, since these non-
hazardous secondary materials are part of the industrial process. Also, 
since publication of the March 2011 final rule and during finalization 
of the February 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.\52\ 
Based upon the information received at that time, we stated that we 
believed it supported the categorical listing of PRRs as a non-waste 
fuel burned on-site. On the other hand, 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 information is submitted that supports off-site 
use as a fuel, the Agency may include those PRRs in a subsequent 
rulemaking.\53\
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    \52\ Generation, Management, and Processing of Paper Processing 
Residuals. Industrial Economics Corporation, October 26, 2012.
    \53\ 78 FR 9111, February 7, 2013 (page 9173).
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3. Scope of Proposed Categorical Non-Waste Listing for PRRs
    PRRs generated during the paper recycling manufacturing process 
vary in composition; however, the unsuitable fibers portion make up the 
majority of residual material that is used as a fuel. Although PRRs are 
generated at more than 100 paper recycling mills, only between 15 to 20 
mills can burn them as a fuel because their boilers are designed to 
burn solid fuels. 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.
    As stated in the preceding section, additional data and information 
submitted to the Agency by the industry

[[Page 21018]]

demonstrates that PRRs are not discarded when used as a fuel on-site or 
within the control of the generator. Further, this data and information 
indicates that all three legitimacy criteria are met. Therefore, the 
Agency is proposing to categorically list PRRs as a non-waste fuel for 
those paper recycling mills whose on-site boilers are designed to burn 
solid fuels. The rationale for this proposal is discussed in the 
sections below.
4. Rationale for Proposed Listing
a. Paper Recycling Process
    The level of contamination in recovered paper and paperboard 
products can range from minimal to severe depending upon its original 
manufacture, its finishing and converting operations, and its 
subsequent use and collection. Accordingly, the type, number, and 
sequence of processing equipment vary by mill.\54\ Despite the 
potential differences between mills, the paper recycling manufacturing 
process may be grouped generally, into three steps, for purposes of 
identifying where residuals are generated and, thus, when they are 
discarded or used to produce a product fuel.
---------------------------------------------------------------------------

    \54\ National Council for Air and Stream Improvement, Inc. 
Technical Bulletin (TB) No. 806, ``Beneficial Use of Secondary Fiber 
Rejects,'' p 1. See attachment to AF&PA Comments to Docket, August 
3, 2010 (document ID: EPA-HQ-RCRA-2008-0329-0871).
---------------------------------------------------------------------------

    In the first step of the paper recycling manufacturing process, 
bales of the incoming feedstock 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 of the paper recycling manufacturing process, 
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 destined for fuel 
use. 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 of the paper recycling manufacturing process, 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 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 used 
as a fuel. For example, reject materials that are dispersed and small, 
such as dyes and inks, waxes, and coating adhesives generated from 
recovered magazines and other papers, will not be removed by fine 
screens and therefore, enter the wastewater treatment system. In 
contrast, light reject material generated from recovered corrugated 
containers is captured in fine screens and can be used as a fuel.\55\ 
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.
---------------------------------------------------------------------------

    \55\ 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 
manufacturing process, with the second step producing the bulk of PRRs 
(i.e., unsuitable fibers) destined for use as a fuel. While the 
discussion above provides an overall description of the paper recycling 
process itself, it also demonstrates how PRRs (and other residuals) are 
generated throughout the process. By virtue of the processing steps 
conducted throughout the paper recycling manufacturing process, PRRs 
burned as a fuel require minimal additional processing themselves prior 
to their use as fuel. For the most part, all that is required after 
screening 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 consider the following attributes:
     PRRs that are burned as a fuel are never discarded.
     For paper recycling mills that can burn PRRs, they burn a 
significant amount of what they generate on-site: 55%-100%.
     PRRs are a co-product of the paper recycling manufacturing 
process and are used to replace traditional fuels by as much as 25%.
    Accordingly, PRRs are more product-like than waste-like.
b. Legitimacy Criteria
    As discussed above, EPA considers whether the NHSMs meet the 
legitimacy criteria when deciding whether to list an NHSM categorically 
as a non-waste fuel. If the NHSM meets the legitimacy criteria, the 
Agency can list the material categorically as a non-waste fuel and 
those who use the material would not have to evaluate and document the 
regulatory status of the material on a case-by-case basis. The three 
legitimacy criteria to be evaluated are: (1) The NHSM must be managed 
as a valuable commodity; (2) the NHSM must have a meaningful heating 
value and be used as a fuel in a combustion unit to recover energy; and 
(3) the NHSM must have contaminants or groups of contaminants at levels 
comparable to or less than those in the traditional fuel the unit is 
designed to burn.\56\
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    \56\ We would note that even if the NHSM does not meet one or 
more of the legitimacy criteria, the Agency could still propose to 
list a NHSM categorically as a non-waste fuel by balancing the 
legitimacy criteria with other relevant factors. (See 78 FR 9156, 
February 7, 2013.)
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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 on-
site at the paper recycling mill, such as hogged wood, other clean 
biomass, or coal. 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, while other paper recycling mills convey 
PRRs directly to the fuel feed systems. This demonstrates that PRRs are 
handled promptly, such that after processing, they are fed directly to 
the boiler or when not used immediately, they are managed in containers 
and storage piles along with other traditional fuels used on-site and 
thus, are managed as a valuable commodity.
ii. Meaningful Heating Value and Used as a Fuel To Recover Energy
    With respect to the second legitimacy criterion, PRRs, as fired, 
average 3,700 Btu/lb (or on a dry basis, averages 9,100 Btu/lb).\57\ 
While this is lower than the

[[Page 21019]]

general guideline of 5,000 Btu/lb, as fired,\58\ the Agency has 
previously stated that flexibility exists for facilities with energy 
recovery units that use NHSMs as fuels with an energy content lower 
than 5,000 Btu/lb, as fired. In such cases, a person may demonstrate a 
meaningful heating value is derived from the NHSM if the energy 
recovery unit can cost-effectively recover meaningful energy from the 
NHSM used as fuels. Factors that may be considered by the Agency in 
determining that a combustion unit cost-effectively recovers energy 
from NHSMs include, but are not limited to: whether the facility 
encounters a cost savings due to not having to purchase significant 
amounts of traditional fuels they otherwise would need; whether they 
would purchase the NHSM to use as a fuel; whether the NHSM can self-
sustain combustion; and/or whether the operation produces energy that 
is sold for a profit.\59\
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    \57\ See AF&PA Comments, p 62, to Docket document ID: EPA-HQ-
RCRA-2008-0329-0871.
    \58\ 76 FR 15522.
    \59\ 76 FR 15523.
---------------------------------------------------------------------------

    While some of these specific factors are relevant with respect to 
the combustion of PRRs,\60\ additional factors beyond those listed may 
also demonstrate that a combustion unit can cost-effectively recover 
energy. In the case of PRRs, we would note that the industry has argued 
that paper recycling mills' boilers can cost effectively recover energy 
from PRRs, because of the boiler design itself. Specifically, a trade 
organization representing paper recycling mills has indicated that 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. In fact, the industry has argued that 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. They also argue 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%, and can have Btu values below 5000 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.\61\ 
Therefore, based on all the available information, including the fact 
that PRRs are primarily wood fibers, the Agency believes that PRRs 
meets the meaningful heating value legitimacy criterion, and that they 
are burned as a fuel to specifically recovery energy.
---------------------------------------------------------------------------

    \60\ For example, the industry has provided information 
indicating that: if they were to cease burning PRRs, replacement 
fuel, such as biomass or coal would need to be purchased at a cost 
of over $8 million and several boilers burning PRRs produce 
electricity for on-site use, displacing the need to purchase 
electricity from the local utility. See ``Supplemental Information 
to Support the Listing of Paper Recycling Residuals (PRR) As a Non-
waste Fuel under section 241.1'' (December 12, 2012).
    \61\ See ``AF&PA-AWC Responses to EPA's Questions on PRR and 
Railroad Ties (May 2013).''
---------------------------------------------------------------------------

iii. Contaminants Comparable to or Lower Than Traditional Fuels
    For the third legitimacy criterion, we have conducted an expanded 
(i.e., previous rules only considered OCC rejects) contaminant 
comparison to capture data that is representative of all PRR fuel types 
within EPA's Boiler MACT Database.\62\ See Table 2.
---------------------------------------------------------------------------

    \62\ In response to the ANPRM, commenters submitted data for OCC 
rejects, which generally indicated that OCC rejects would or could 
meet the contaminant criterion.

          Table 2--Comparison of Contaminants in Paper Recycling Residuals (PRRs) and Traditional Fuels
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
          Contaminants \a\               Clean wood/biomass             Coal \b\                 PRRs c d
                                     ---------------------------------------------------------------------------
                                                                         Range
----------------------------------------------------------------------------------------------------------------
Group 1:
    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
Group 2:
    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 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.

[[Page 21020]]

 
\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.

    We compared the contaminant concentrations of those constituents 
found in Table 2 in PRRs to the levels found in coal and biomass, since 
both of these traditional fuels can be burned in boilers at paper 
recycling mills. Data indicate that PRRs 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, there does not appear 
to be any data available on the concentration of these contaminants in 
PRRs. Limited data has been published, however, 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 HAP were detected in the TCLP extracts for OCC 
rejects.\63\ 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.64 65 Likewise, we 
would expect similar results from the broader universe of PRRs, since 
the processing steps that generate PRRs would be equivalent to or more 
than those that generate only OCC rejects (i.e., where the feedstock is 
limited to OCCs), resulting in potentially fewer contaminants.
---------------------------------------------------------------------------

    \63\ 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).
    \64\ 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.
    \65\ 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).
---------------------------------------------------------------------------

5. Summary and Request for Comment
    PRRs are generated from the recycling of recovered paper and 
paperboard products, which consists of several processing steps. These 
processing steps remove contaminants and sort PRRs by passing them 
through a series of screens and cyclones, and increase their Btu value 
in preparation for burning. This fuel product meets the legitimacy 
criteria as described above. Based on current information, the Agency 
believes that PRRs are a non-waste fuel, provided that such units are 
located on-site and the boilers that are used are designed to burn 
solid fuels. The Agency invites comment on this proposed categorical 
non-waste determination, which would categorically list PRRs as a non-
waste fuel in section 241.4(a) and the following specific items:
    Meaningful Heating Value. We request comment on the meaningful 
heating value determination, as well as 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.) that 
typically make-up PRRs. This information may 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.
    Other discarded materials. In addition, although the data provided 
in the boiler database regarding the level of contaminants in the PRRs 
indicates 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 fuel on-site 
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 is 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.
    PRRs burned off-site. Finally, the Agency is considering whether to 
expand the categorical listing to include PRRs that are burned as a 
fuel product off-site (i.e., in cases where the generating mill does 
not have a boiler designed to burn solid fuels) at other paper 
recycling mills and commercial power plants. According to earlier 
comments submitted on subsequent 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).\66\ 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.\67\ Thus, contrary to what the Agency 
previously concluded based on the information it had at the time of the 
March 2011 final rule,\68\ it now appears that the OCC rejects burned 
off-site in commercial power plants can be managed more like a non-
waste fuel than a waste fuel. While the information we have generally 
indicates that these PRRs are managed much the same way as those

[[Page 21021]]

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 request 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.
---------------------------------------------------------------------------

    \66\ In the 2011 final NHSM rule, the agency previously believed 
these facilities to be municipal or commercial incinerators (76 FR 
15487). Subsequent comments have identified these facilities to be 
commercial biomass and cogeneration plants.
    \67\ 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).
    \68\ 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.
---------------------------------------------------------------------------

C. Creosote-Treated Railroad Ties (CTRTs) \69\
---------------------------------------------------------------------------

    \69\ As noted previously, the categorical listing of CTRTs does 
not include other creosote-treated wood. The Agency is currently 
evaluating these NHSMs, based on the petition submitted by the 
Treated Wood Council included in the docket for today's rule.
---------------------------------------------------------------------------

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 
also governed by the standards established by the American Wood 
Protection Association (AWPA). AWPA has established two blends of 
creosote, P1/13 and P2.\70\ Railroad ties are typically manufactured 
using the P2 blend that is more viscous than other blends.
---------------------------------------------------------------------------

    \70\ 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.
---------------------------------------------------------------------------

    Under today's proposed rule, CTRTs are railroad crossties removed 
from service and processed prior to being used as a fuel. Approximately 
17 million crossties are removed from service each year. About one 
third 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.\71\
---------------------------------------------------------------------------

    \71\ 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; \72\ and the 
combustor as third party energy producers. Typically, ownership of the 
crossties are generally transferred directly from the generator to the 
reclamation company that sorts materials for highest value secondary 
uses, and then sells the products to end-users, including those 
combusting the material as fuel. Some reclamation companies sell CTRTs 
to processors who remove metal contaminants and grind the ties into 
chipped wood. Other reclamation companies have their own grinders, do 
their own contaminant removal, and can sell directly to the combusting 
facilities. Information submitted to the Agency indicates there are 
approximately 15 CTRT recovery companies in North America with industry 
wide revenues of $65-75 million. Members of AF&PA report that the value 
of CTRTs is underscored by the approximately $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).\73\
---------------------------------------------------------------------------

    \72\ In some cases, the reclamation company sells the crossties 
to a separate company for processing.
    \73\ 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 indicated that when the 
crossties are temporarily stored, they are stored until their value as 
an alternative fuel can be realized, generally through a contract 
completed for transferal of ownership to the reclamation contractor or 
combustor.\74\ 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.
---------------------------------------------------------------------------

    \74\ M.A. Energy Resources LLC, Petition submitted to 
Administrator, EPA. February 2013.
---------------------------------------------------------------------------

    Typically, reclamation companies receive CTRTs 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. Metal removal may occur several times 
during the process. The crossties are then ground or shredded to a 
specified size depending on the particular needs of the end-use 
combustor, with chip size typically between 1-2 inches. This step may 
occur in several phases, including primary and secondary grinding, or 
in a single phase. Once the crossties are ground to a specific size, 
additional metal may be removed and there is further screening based on 
the particular needs of the end-use combustor. Depending on the 
configuration of the facility and equipment, screening may occur 
concurrently with grinding or at a subsequent stage. Throughout the 
process, a surfactant is applied to the crossties being processed to 
minimize dust.
    Once the processing of CTRTs is complete, the CTRTs are sold 
directly to the end-use combustor for energy recovery. Processed CTRTs 
are delivered to the buyers by railcar or truck. The CTRTs are then 
stockpiled prior to combustion, with a typical storage timeframe 
ranging from a day to a week. When the CTRTs are to be burned for 
energy recovery, the material is then transferred from the storage 
location using a conveyor belt or front-end loader. The CTRTs may be 
combined with other biomass fuels, including hog fuel and bark. CTRTs 
are commonly used to provide the high BTU fuel to supplement low (and 
sometimes wet) BTU biomass to ensure proper combustion, often in lieu 
of coal or other fossil fuels.\75\ The combined fuel may be further 
hammered and screened prior to combustion.
---------------------------------------------------------------------------

    \75\ American Forest & Paper Association, American Wood 
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------

    In general, contracts for the purchase and combustion of CTRTs 
include fuel specifications limiting contaminants, such as metal and 
precluding the receipt of wood treated with preservatives other than 
creosote.
2. CTRTs Under Current NHSM Rules
a. March 2011 NHSM Final Rule
    The March 2011 NHSM final rule indicated that even though most 
creosote-treated wood is non-hazardous, the presence of 
hexachlorobenzene, a

[[Page 21022]]

CAA 112 HAP, as well as other HAP suggested that creosote-treated wood, 
including CTRTs contained contaminants at levels that were not 
comparable to or lower than those found in wood or coal, the fuel that 
creosote-treated wood would replace. In making the assessment at that 
time, the Agency did not consider fuel oil as a traditional fuel that 
CTRTs would replace. Thus, the data provided at that time indicated 
that combustion of creosote-treated wood may result in destruction of 
contaminants contained in those materials, which is an indication of 
incineration, a waste activity. Accordingly, creosote-treated wood, 
including CTRTs when burned, seemed more like a waste than a commodity, 
and did not appear to meet the contaminant legitimacy criterion.\76\ 
This material, therefore, was considered a solid waste when burned and 
units combusting it would be subject to the section 129 CAA emission 
standards. The conclusions from the March 2011 rule regarding creosote-
treated wood are discussed further in Section V.C.4 (Rationale for 
Proposed Listing) below.
---------------------------------------------------------------------------

    \76\ 76 FR 15483.
---------------------------------------------------------------------------

b. February 2013 NHSM Final Rule
    In the February, 2013 NHSM final rule, EPA noted that AF&PA and the 
American Wood Council submitted a letter with supporting information on 
December 6, 2012, seeking a categorical listing for all railroad ties 
combusted in any unit.\77\ 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.
---------------------------------------------------------------------------

    \77\ American Forest & Paper Association, American Wood 
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------

    While this information was useful, it was not sufficient for EPA to 
propose that CTRTs be listed categorically as a non-waste fuel. 
Therefore, to further inform the Agency as to whether to list CTRTs 
categorically as a non-waste fuel, EPA requested that additional 
information be provided, and indicated that if this additional 
information supported and supplemented the representations made in the 
December 2012 letter, EPA would expect to propose a categorical listing 
for CTRTs. The requested information and responses provided are as 
follows:
     A list of 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 CTRT.\78\ Another respondent claimed 
that data \79\ 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).
---------------------------------------------------------------------------

    \78\ Information received subsequent to the request for data in 
the February 13, 2013 rule discussed above claims that 14 entities 
in the utility sector could burn (i.e. are permitted to burn) or are 
burning cross-tie derived fuel (i.e. CTRT). Of the 14 entities, 9 
companies are currently firing or have fired CTRT within the past 
two years. Information on pulp and paper and utility sources 
currently utilizing CTRT indicates that several of these sources use 
between 5,000 and 70,000 tons of CTRT 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.
    \79\ American Forest and Paper Association and American Wood 
Council's letter to George Faison, EPA. March 7, 2013.
---------------------------------------------------------------------------

     The types of boilers (e.g., kilns, stoker boilers, 
circulating fluidized bed, etc.) that burn railroad ties for energy 
recovery: Respondents stated that the types of units operated by those 
end-use combustors that utilize CTRTs as an alternative fuel include 
fluidized bed, traveling grate, and spreader stoker. Forest product 
industry boilers that used to burn railroad ties are generally one of 
three types: stoker, bubbling bed or fluidized bed boilers. In 
addition, cement kilns have combusted CTRTs.\80\
---------------------------------------------------------------------------

    \80\ Petition for Determination Identifying Non-Hazardous 
Secondary Treated Wood Biomass as a Non-Waste under 40 CFR 241.4(a). 
Treated Wood Council April 2013.
---------------------------------------------------------------------------

     The traditional fuels and relative amounts (e.g., startup, 
30%, 100%) of these traditional fuels that could otherwise generally be 
burned in these types of units:
    Respondents also claim that units operated by end-use combustors 
that utilize CTRTs as an alternative 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.81 82 In general, they 
claim that all of the units that burn CTRTs also burn significant 
quantities of biomass given the similarity of the fuels' 
characteristics. In addition, they claim that most of these units are 
permitted to burn fuel oil either during start-up or during normal 
operations. The respondents claim that many factors determine how much 
fuel oil is burned. For example, because natural gas prices are low, 
natural gas is often the fuel of choice, if available. In addition, 
they claim that some states are looking to reduce SO2 
emissions from sources and thus, encourage greater use of biomass or 
natural gas rather than fuel oil.\83\
    Respondents claim 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 EPA makes a determination under section 241.4(a). 
Specifically, the respondents claim that the EPA has interpreted the 
phrase ``designed to burn'' to mean that a combustor that burns NHSMs 
as a non-waste fuel has to be able to burn the NHSM in the combustion 
unit, which in the case of CTRTs, would require the installation of a 
nozzle for the delivery of liquid fuel into the boiler, to meet the 
contaminant legitimacy criterion EPA explained that this standard is to 
avoid the possibility that discard could be occurring in some 
situations.\84\ However, in the context of a specific non-waste 
determination under section 241.4(a), the respondents argue that EPA 
has the opportunity to evaluate all the

[[Page 21023]]

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 argue that EPA has the discretion to recognize that when a 
combustor purchases CTRTs and then burns it in a boiler, that 
combustion is for the purpose of generating energy rather than 
discarding the railroad ties. According to the respondents, any other 
conclusion would lead to the absurd result that one boiler can burn 
CTRTs as a legitimate fuel and another boiler--with essentially the 
same design except for a nozzle feed for fuel oil--would have to 
consider the CTRTs as a solid waste. (The Agency's response to this 
comment is discussed in Section V.C.4 Rationale for Proposed Listing.)
---------------------------------------------------------------------------

    \81\ To the extent that any of these boilers burn fuel derived 
from waste, or any other solid waste, they would be subject to the 
CAA Section 129 CISWI standards, and the Agency's proposal today 
would not impact their regulatory status.
    \82\ American Forest and Paper Association and American Wood 
Council's letter to George Faison, EPA. March 7, 2013.
    \83\ Examples of combustors utilizing a variety of traditional 
and other fuels, including facilities combusting both CTRT and fuel 
oil, is found in documentation provided by the American Associations 
of Railroads (AAR). The document listed 11 non- pulp and paper 
facilities including power generators. All of the facilities listed 
combust CTRT, three facilities combust CTRT and fuel oil, three 
facilities combust CTRT and natural gas. Other fuels combusted 
include tire-derived fuel, and landfill gas. February 2013.
    \84\ See 78 FR 9149
---------------------------------------------------------------------------

     The extent to which non-industrial boilers (e.g. 
commercial or residential boilers) burn CTRTs for energy recovery:
    The respondent understands that the residential use of CTRTs for 
purposes of energy recovery is unlikely. However, they explained that 
several local utilities in the northern Midwest utilize CTRTs for 
purposes of power generation but they have not identified the specific 
facilities.
     Laboratory analyses for contaminants known or reasonably 
suspected to be present in 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: \85\
---------------------------------------------------------------------------

    \85\ The Agency requested these analyses based on the limited 
information previously available concerning the chemical makeup of 
CTRTs. That limited information included one well-studied sample 
from 1990 (which indicated the presence of both PAHs and 
dibenzofuran), past TCLP results (which indicated the presence of 
cresols, hexachlorobenzene and 2,4-dinitrotoluene), Material Safety 
Data Sheets for coal tar creosote (which indicated the potential 
presence of biphenyl and quinoline), and the absence of dioxin 
analyses prior to combustion despite extensive dioxin analyses of 
post-combustion emissions.
---------------------------------------------------------------------------

    Respondents submitted contaminant data for crushed CTRTs, which are 
discussed in Section V.C.4 (Rationale for Proposed Listing) below. With 
the exception of dioxins, which respondents explain will not be present 
in CTRTs, analyses were submitted for all requested constituents and 
many other contaminants.
3. Scope of Proposed Categorical Listing for CTRTs
    As discussed above, AF&PA and the American Wood Council submitted a 
letter and supporting information to EPA on December 6, 2012, seeking a 
categorical listing for CTRTs.\86\ Information also has been provided 
by M.A. Energy Resources, LLC \87\ and the Treated Wood Council 
regarding cross-tie derived fuel.\88\ In addition, information on 
contaminant levels found in CTRTs has been provided by the Association 
of American Railroads.\89\ Based on the additional data and information 
submitted to the Agency, contaminant levels found in CTRTs may not be 
materially different from fuel oil and biomass that these facilities 
are designed to burn as a fuel. Therefore, the Agency is proposing to 
list, categorically, processed CTRTs when used as a fuel in combustion 
units designed to burn both biomass and fuel oil.\90\ The rationale for 
this proposal is discussed in detail in the sections below.
---------------------------------------------------------------------------

    \86\ AF&PA Ibid.
    \87\ M.A. Energy Resources, LLC 40 CFR Part 241, Subpart B--
Crosstie Derived Fuel. February, 2013.
    \88\ Letter from Jeffrey Miller, Treated Wood Council to Lisa 
Feldt. December 17, 2012.
    \89\ Evaluation of Used Railroad Ties Treated with Creosote for 
Polynuclear Organic Material which includes Polynuclear Aromatic 
Hydrocarbons. January 2013. URS Corporation on behalf of American 
Association of Railroads.
    \90\ Fuel oils means fuel oils 1-6, including distillate, 
residual, kerosene, diesel, and other petroleum based oils. It does 
not include gasoline or unrefined crude oil.
---------------------------------------------------------------------------

4. Rationale for Proposed Listing
a. Discard
    When deciding whether an NHSM should be listed as a categorical 
non-waste fuel in accordance with section 241.(4)(b)(5), EPA first 
evaluates whether or not the NHSM has been discarded, and if not 
discarded, whether or not the material is legitimately used as a 
product fuel in a combustion unit. If the material has been discarded, 
EPA evaluates the NHSM as to whether it has been sufficiently processed 
into a material that is legitimately used as a product fuel.
    As discussed above, crossties removed from service are sometimes 
temporarily stored in the railroad right-of-way or at another location 
selected by the reclamation company. This means that not all CTRTs 
originate from crossties removed from service in the same year; some 
CTRTs are processed from crossties removed from service in prior years 
and stored by railroads or removal/reclamation companies until a 
contract for reclamation is in place.
    The December 6, 2012, letter from AF&PA states that in those cases 
where the railroad or reclamation company wait for more than a year to 
realize the value of the CTRTs as a fuel (or in landscaping), it does 
not mean or indicate that the CTRTs have been discarded and cite 76 FR 
15456, 15520 of the March 2011 rule. That section of the rule addresses 
the management of the NHSM as a valuable commodity and states that 
storage of the NHSM must be within a reasonable timeframe.\91\ The 
December 6 letter claims that a robust market for companies engaged in 
railroad tie reclamation, and the cost of this material indicates that 
the material is a valuable commodity and has not been discarded.
---------------------------------------------------------------------------

    \91\ 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 does not believe that any 
explanation (other than a repeat of what the rules say) has been 
provided of why storage that may be longer than a year is not discard, 
especially when they argue that CTRTs are a valuable material. Put 
another way, if the CTRTs have such value as a fuel or landscaping 
material, then why aren't they processed and used as a fuel or 
landscaping material in a relatively short period of time? Therefore, 
without further explanation or information from the public, the Agency 
concludes that CTRTs removed from service and stored in a railroad 
right of way or other location for long periods of time--that is, a 
year or longer, without a determination regarding their final end use 
(e.g. landscaping, as a fuel or land filled) indicates that the 
material has been discarded and is a solid waste (see the preamble 
discussion of discard 76 FR 15463 in the March 2011 rule). Regarding 
the assertion that the CTRTs are a valuable commodity in a robust 
market, the Agency would like to remind persons that NHSMs may have 
value in the marketplace and still be considered solid wastes.
    Since the railroad ties removed from service are considered 
discarded because they can be stored for long periods of time without a 
final determination regarding their final end use, in order for them to 
be considered a non-waste fuel, they must be processed, thus 
transforming the railroad ties into a product fuel that meets the 
legitimacy criteria, or if not meeting the legitimacy criteria, would 
still be considered a non-waste fuel in balancing the legitimacy 
criteria with other relevant factors. The Agency concludes that the 
processing of CTRTs described above in section C.1. meets the 
definition of processing in 40 CFR 241.2. As discussed in Section V.A, 
processing includes operations that transform discarded NHSM into a 
non-

[[Page 21024]]

waste fuel or non-waste ingredient, including operations necessary to: 
remove or destroy contaminants; significantly improve the fuel 
characteristics (e.g., sizing or drying of the material, in combination 
with other operations); chemically improve the as-fired energy content; 
or improve the ingredient characteristics. Minimal operations that 
result only in modifying the size of the material by shredding do not 
constitute processing for the purposes of the definition. Specifically, 
the Agency concludes that CTRTs meet the definition of processing in 40 
CFR 241.3 because:
     Contaminants (spikes, nails, plates, etc.) are removed 
using a magnet. This magnetic removal of metals may occur several times 
during processing.
     The fuel characteristics of the material are improved when 
the crossties are ground or shredded to a specified size depending on 
the particular needs of the end-use combustor. The grinding may occur 
in one or more phases. Once the CTRTs are ground, there may be 
additional screening to bring the material to a specified size.
b. Legitimacy Criteria
    As discussed above, EPA can list a discarded NHSM categorically as 
a non-waste fuel if it has been ``sufficiently processed,'' and meets 
the legitimacy criteria. If the Agency were to list such NHSM 
categorically as a non-waste fuel, those who use the material would not 
have to evaluate and document the regulatory status of the material on 
a case-by-case basis. The three legitimacy criteria to be evaluated 
are: (1) The NHSM must be managed as a valuable commodity, (2) the NHSM 
must have a meaningful heating value and be used as a fuel in a 
combustion unit to recover energy, and (3) the NHSM must have 
contaminants or groups of contaminants at levels comparable to or less 
than those in the traditional fuel the unit is designed to burn.\92\
---------------------------------------------------------------------------

    \92\ We note that even if the NHSM does not meet one or more of 
the legitimacy criteria, the Agency could still propose to list an 
NHSM categorically by balancing the legitimacy criteria with other 
relevant factors.
---------------------------------------------------------------------------

i. Managed as a Valuable Commodity
    The processing of CTRTs is correlated to the particular needs of 
the end-use combustor. Additional screening may take place after the 
grinding and shredding of the CTRTs if deemed necessary. Once the CTRTs 
meet the end use specification, they are then sold directly to the end-
use combustor for energy recovery. CTRTs are delivered to the end-use 
combustors via railcar and/or truck similar to how traditional biomass 
fuels are delivered. While awaiting combustion at the end-user, which 
usually takes place within a week of arrival, the CTRTs are transferred 
and/or handled from storage in a manner consistent with the transfer 
and handling of biomass fuels. Such procedures typically include 
screening by the end-use combustor, combining with biomass fuels, and 
transferring to the combustor via conveyor belt or front-end loader. 
Since processed CTRTs storage does not exceed reasonable time frames 
and are handled/treated similar to analogous biomass fuels by end-use 
combustors, CTRTs meets the criterion for being managed as a valuable 
commodity.\93\
---------------------------------------------------------------------------

    \93\ 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
    EPA received recent information that the heating value of processed 
CTRTs ranges from 6,000-8,000 Btu/lb as fired, and that combustion 
units recover energy by burning the material as fuel. Information 
compiled by EPA in 2011 indicates that CTRTs could replace clean wood 
that has an average as-fired heating value of 5,150 Btu/lb, with a low 
as-fired heating value of 3,440 Btu/lb.\94\ In the March 2011 NHSM 
final rule, the Agency indicated that NHSMs with an energy value 
greater than 5,000 Btu/lb, as fired, are considered to have a 
meaningful heating value.\95\ Thus, CTRTs have greater heating value 
than much of the traditional fuel it replaces and, therefore, meets the 
criterion for meaningful heating value and used as a fuel to recover 
energy.
---------------------------------------------------------------------------

    \94\ Fuel analysis data for unadulterated time. USEPA, Office of 
Air Quality Planning and Standards, Emissions Data for Boilers and 
Process Heaters Containing Stack Test, CEM & Fuel Analysis Data 
Reported Under ICR No.2286.03 (Version 6) EPA Docket Number EPA-HQ-
OAR-2002-0058-3255. February 2011.
    \95\ See 76 FR 15541.
---------------------------------------------------------------------------

iii. Contaminants Comparable to or Lower than Traditional Fuels
    Data on contaminant comparisons. For CTRTs, EPA has compared the 
additional data submitted on contaminant levels by petitioners to 
analogous data for two traditional fuels: biomass (including untreated 
clean wood) and fuel oil. As noted above, the data EPA received on 
CTRTs comes from the following three sources: M.A. Energy Resources 
(MAER), URS Corporation on behalf of the Association of American 
Railroads, and AF&PA. The information submitted by MAER included a 
comprehensive analysis of one CTRT sample. The sample came from a CTRT 
pile located at an end-use combustor. The URS Corporation report 
included three samples of processed CTRT from the National Salvage 
facility in Selma, Alabama, and from a Stella Jones facility in Duluth, 
Minnesota. AF&PA submitted documents comparing contaminant 
concentrations in CTRTs with traditional fuels. AF&PA compiled data 
from various sources in these documents. EPA considers data from these 
eight facilities to be representative of the CTRT universe because the 
composition of the creosote component of the CTRTs is the same-that is, 
the P2 blend of creosote, as well as the fact that multiple samples 
have been taken in different parts of the country at different points 
in the CTRT management chain. Table 3 lists the aggregated CTRT data 
received as it compares to contaminants found in two traditional fuels 
that petitioners claim are used, in varying amounts, at facilities 
burning processed CTRTs for energy recovery.

                            Table 3--Contaminant Ranges in Traditional Fuels and CTRT
                                             [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

[[Page 21025]]

 
    Chromium (Cr)...............................................          ND-340           ND-37         ND-15.3
    Cobalt (Co).................................................          ND-213          ND-8.5              ND
    Lead (Pb)...................................................          ND-340         ND-56.8          ND-9.6
    Manganese (Mn)..............................................       ND-15,800        ND-3,200          63-185
    Mercury (Hg)................................................          ND-1.1          ND-0.2       0.02-0.05
    Nickel (Ni).................................................          ND-540          ND-270           ND-38
    Selenium (Se)...............................................            ND-9            ND-4            ND-1
Non-Metal
    Chlorine (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
    Sulfur (S)..................................................        ND-8,700       ND-57,000       681-3,277
Volatile Organic
    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:
    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...............................................  ..............  ..............              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.

    As shown in Table 3, all contaminant concentration levels for 
metals are within the ranges identified for fuel oil and biomass. We 
note that when comparing the non-metal elemental contaminants, however, 
fluorine and nitrogen levels in CTRTs are not comparable to fuel oil, 
and semi-volatile organic compound (SVOC) levels are not comparable to 
biomass. Given that CTRTs are a type of treated wood biomass, and any 
unit burning CTRTs typically burns untreated wood, EPA considered three 
scenarios that petitioners described.\96\
---------------------------------------------------------------------------

    \96\ We note that contaminant data received also compared coal 
to CTRTs as the traditional fuel for comparison. Like biomass, CTRT 
contaminant concentration levels for SVOCs exceeded those in coal, 
but were comparable to levels in fuel oil. Likewise, contaminant 
levels for nitrogen and fluorine in CTRTs were comparable to those 
in coal, but exceeded those in fuel oil. Thus, units designed to 
burn both biomass and fuel oil may, in addition, burn coal if the 
unit is also designed to burn that material.
---------------------------------------------------------------------------

    In the first scenario, where a combustion unit is designed to only 
burn biomass, EPA compared contaminant levels in CTRT to contaminant 
levels in biomass. In this scenario, the total SVOC levels can reach 
22,883 ppm, driven by high levels of polycyclic aromatic hydrocarbons 
(PAHs) and, to a lesser extent, the levels of dibenzofuran and 
biphenyl.\97\ 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.
---------------------------------------------------------------------------

    \97\ We note that for several SVOCs--cresols, hexachlorobenzene, 
and 2,4-dinitrotoluene, which were expected to be in creosote, and 
for which information was specifically requested in the February 7, 
2013 NHSM final rule (78 FR 9111), the data indicate that they were 
not detectable, or were present at levels so low to be considered 
comparable.
---------------------------------------------------------------------------

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

[[Page 21026]]

contaminant levels in CTRTs to both coal and biomass (see footnote 23). 
Again, however, total SVOCs would not be comparable, and in fact, would 
be present at orders of magnitude higher than found in biomass i.e. up 
to 22,883 ppm in CTRTs.
    In the third scenario, a combustion unit is designed to burn 
biomass and fuel oil. As previously mentioned, fluorine, and nitrogen 
levels in CTRTs are present at elevated levels when compared to fuel 
oil. However, the highest levels of fluorine (100 ppm) and nitrogen 
(14,400 ppm) are comparable to, or well within the levels of these 
contaminants in biomass. Likewise, SVOCs are present in CTRTs (up to 
22,883 ppm) at levels well within the range observed in fuel oil (up to 
54,700 ppm). Accordingly, contaminant concentration levels for 
fluorine, nitrogen, and SVOCs are within the ranges identified for 
either biomass or fuel oil. Therefore, CTRTs have comparable 
contaminant levels to other fuels combusted in units designed to burn 
both biomass and fuel oil, and as such, meet this criterion.
    As stated in the preamble to the February 7, 2013, NHSM final rule, 
EPA believes that combustors may burn NHSMs as a product fuel if they 
compare appropriately to any traditional fuel the unit can or does 
burn. (78 FR 9149) Combustion units are often designed to burn multiple 
traditional fuels, and some units can and do rely on different fuel 
types at different times based on availability of fuel supplies, market 
conditions, power demands, and other factors. Under these 
circumstances, it would be arbitrary to restrict the combustion for 
energy recovery of NHSMs based on contaminant comparison to only one 
traditional fuel if the unit could burn a second traditional fuel 
chosen due to such changes in fuel supplies, market conditions, power 
demands or other factors. If a unit can burn both a solid and liquid 
fuel, then comparison to either fuel would be appropriate.
    In order to make comparisons to multiple fuels, as was also 
discussed in the preamble to the February 7 rule, units must be 
designed to burn those fuels (78 FR 9111, page 9150). 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. 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.
    Available information regarding use of fuel oil. As discussed in 
section 2.b., petitioners indicated during the comment period that 
there are combustion units designed to burn biomass and fuel oil, but 
did not identify specific units. In a March 2013 letter,\98\ 
petitioners stated that the overwhelming majority of creosote-treated 
railroad ties burned at paper mills are burned in boilers that are 
fully capable and permitted to burn at maximum capacity rating. AFPA 
claims that most of these boilers (80%) can or do burn oil during 
operating conditions outside of startup and shutdown periods.\99\
---------------------------------------------------------------------------

    \98\ American Forest and Paper Association and American Wood 
Council's letter to George Faison, EPA. March 7, 2013.
    \99\ American Forest and Paper Association and American Wood 
Council's letter to George Faison, EPA. March 7, 2013.
---------------------------------------------------------------------------

    Additional information was submitted by petitioners subsequent to 
this claim, however.\100\ The new information indicates that while 
stoker, bubbling bed or fluidized bed boilers at major source \101\ 
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 petitioners 
indicated that continued use of fuel oil during operation would result 
in higher compliance costs and higher costs per Btu. Petitioners stated 
that the switch to natural gas for operation requires replacement of 
start-up fuel systems, and that the most efficient and least emitting 
start-up systems use specialized burners for gas.
---------------------------------------------------------------------------

    \100\ E.O. 12866 meeting between Office of Management and Budget 
and American Forest and Paper Association--September 20, 2013. 
Meeting between American Forest and Paper Association and Mathy 
Stanislaus, December 19, 2013. Handouts from the meeting can be 
found in the docket for today's rule.
    \101\ 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.
---------------------------------------------------------------------------

    We note that EPA collected information from owners and operators of 
combustion units across a wide variety of industries 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 (including petitioners and others), EPA concluded 
that units that combust solid fuels generally used fuel oil or natural 
gas only as a startup fuel. EPA concluded that changing the fuel type 
in such units would generally require extensive changes to the fuel 
handling and feeding system, as well as modification to the burners and 
combustion chambers. 75 FR 32006, 32017. For these reasons, EPA treated 
these units as units designed to combust solid fuels (including 
biomass). Further, the information submitted for the ICR indicated that 
some biomass units may combust fuel oil at other times, for example, 
for transient flame stability purposes if they are combusting biomass 
with a high moisture content. However, the ICR did not indicate the 
amount of fuel oil being combusted, or whether fuel oil was combusted 
alone or in conjunction with solid fuel, such as biomass. Therefore, at 
the time of the development of the boiler MACT, EPA did not have any 
information, including information submitted in response to the ICR, 
indicating there are units designed to burn solid fuel which commonly 
switch between combusting biomass and fuel oil or otherwise combusted 
fuel oil as part of normal operation.
    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.
    Petitioners submitted an explanatory document in response to the 
Agency's request.\102\ The document provided additional information 
regarding (a) the presence of dibenzofuran in creosote and creosote-
treated wood, and (b) whether the presence of dibenzofuran can indicate 
the concurrent presence of the polychlorinated versions of these 
compounds, viz., polychlorinated dibenzo p-dioxins and dibenzofurans 
(PCDD/F--often collectively termed dioxins).
---------------------------------------------------------------------------

    \102\ American Forest and Paper Association and American Wood 
Council--Letter to George Faison, EPA March 7, 2013.
---------------------------------------------------------------------------

    The petitioners' data confirms the presence of dibenzofurans. 
Petitioners acknowledged that coal tar creosote used in preparing 
railroad ties may have levels of dibenzofuran up to 4.5% or 45,000 ppm, 
and dibenzofuran concentrations measured in seven samples of railroad 
ties previously treated with creosote ranged from 570 to 1,500 ppm. 
However, as indicated by

[[Page 21027]]

the petitioners, this compound should not be confused with dioxins or 
furans, which refers to a larger group of polychlorinated dibenzofurans 
and dibenzodioxins.
    The Agency agrees with the petitioners explanation that 
dibenzofuran present in the CTRTs should not result in the formation of 
dioxins, but as a HAP itself, dibenzofuran is still appropriate to 
include in the list of SVOCs for comparison to traditional fuels.\103\ 
Regarding dioxins, the document indicted that dioxins should not be 
present in the material. The Agency agrees that the level of chlorine 
during creosote production is not sufficient to form dioxins in coal 
tar creosote and therefore dioxin should not be present in CTRTs prior 
to combustion.
---------------------------------------------------------------------------

    \103\ When making contaminant comparisons for purposes of 
meeting the legitimacy criterion, the Agency allows grouping of 
contaminants. For example, under the grouping concept, individual 
SVOC levels may be elevated above that of the traditional fuel, but 
the contaminant legitimacy criterion will be met as long as total 
SVOCs is comparable to or less than that of the traditional fuel. 
Such an approach is standard practice employed by the Agency in 
developing regulations and is consistent with monitoring standards 
under CAA sections 112 and 129. See 78 FR 9146 for further 
information.
---------------------------------------------------------------------------

    As discussed previously, the March 2011 NHSM final rule noting the 
presence of hexachlorobenzene and dinitrotoluene, suggested that 
creosote-treated lumber include contaminants at levels that are not 
comparable to those found in wood or coal, the fuel that creosote-
treated wood would replace, and would thus be considered solid wastes. 
Today's proposed rule differs in several respects from the conclusions 
in the March 2011 rule. Today's proposal concludes that CTRTs are a 
categorical non-waste when combusted in units designed to burn both 
fuel oil and biomass. The March 2011 rule, using 1990 data on railroad 
cross ties, was based on contaminant comparisons to coal and biomass 
and not fuel oil. As discussed above, when compared to fuel oil, total 
SVOC contaminant 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 today's proposal showed non-
detects for those two contaminants.
c. Other Relevant Factors in a Categorical Non-Waste Determination for 
CTRT
    In their request for a categorical listing of CTRTs and in 
background information submitted subsequent to that request, 
petitioners argue that, in the context of a specific non-waste 
determination under Sec.  241.4(a), the Agency can balance the 
legitimacy criteria against other relevant factors in any decision to 
list an NHSM categorically. See 40 CFR 241.4(b)(5). Specifically, the 
petitioners argue that the phrase ``designed to burn'' can be another 
relevant factor that the Agency can consider in making a decision on 
listing CTRTs categorically as a non-waste fuel. They argue that by 
conducting such balancing, the Agency 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, 
the petitioners request 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, petitioners identified additional relevant factors to 
be considered in a categorical listing for CTRTs. Specifically:
     CTRTs are functionally the same as other comparable 
traditional fuels, such as fossil fuels used in a fuel mix to maintain 
an appropriate BTU level for the biomass boilers., combusted in the 
same units and subject to the same air pollution 
controls.104 105
---------------------------------------------------------------------------

    \104\ Petitioner arguments regarding functional equivalence and 
use of CTRT as a commodity are also outlined in Legal Analysis 
Supporting Listing Railroad Tie Fuel as a Nonwaste under Sec.  
241.4(a)(January 15, 2014.) American Forest and Paper Association.
    \105\ 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.
---------------------------------------------------------------------------

     CTRTs are integral to the production process similar to 
any other fuel used and consistently have lower moisture content and 
higher Btu value than other biomass fuel.
     CTRTs are commodity fuels--users pay $20--$30 per ton thus 
the petitioners believe that the material is not being discarded.
     High levels of PAHs in CTRTs and removal of oil delivery 
mechanisms from units designed to combust fuel oil and CTRTs is not an 
indication that the material is being ``discarded'' and is thus a solid 
waste.\106\ As discussed previously, units will be switching from fuel 
oil to natural gas. Such units designed to combust both fuel oil and 
CTRTs include stoker, bubbling bed and fluidized bed boilers. Boilers 
that have burned fuel oil currently or in the past will discontinue 
using fuel oil, however, petitioners argue that they have clearly 
demonstrated the ability to burn that material as a product fuel.
---------------------------------------------------------------------------

    \106\ Petitioners also argued in their December 19, 2013 
background material that high PAH levels in fuels are not related to 
PAH emission levels. They indicated 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 CTRT increase heat value of the fuel mix improving 
combustion temperature and conditions.
---------------------------------------------------------------------------

    In general, the petitioners argue that any combustor that purchases 
CTRTs for use as a fuel is purchasing the material because of its fuel 
value and that any burning is clearly for generating energy, as opposed 
to discarding CTRTs. Otherwise, they argue it would lead to the absurd 
result that for a boiler that can burn fuel oil and CTRTs, the CTRTs 
would be considered a non-waste fuel, whereas another boiler that 
cannot burn fuel oil, but also burns CTRTs, the CTRTs would be 
considered a solid waste. Some recyclers and combustors, according to 
petitioners, have been managing CTRTs as non-waste fuel, irrespective 
of the type of boiler or combustion unit.
    While we agree with the petitioners that the agency can list an 
NHSM categorically by balancing the legitimacy criteria against other 
relevant factors (40 CFR 241.4(b)(5)(ii), we do not agree that the 
Agency can simply ignore any of the legitimacy criteria, or other 
relevant factors, including the contaminant legitimacy criterion. In 
particular, the petitioners argue that any biomass material regardless 
of the contaminant or how contaminated it is, should be considered a 
non-waste fuel.
    Purchase of the material as a commodity for its fuel value is a 
factor, but not determinative when considering whether discard has 
occurred. Further, elevated levels of contaminants remaining in the 
material can indicate that the material is being discarded. While the 
Agency recognizes that other relevant factors may be considered when 
one of the legitimacy criteria are not met, there is a limit to the 
levels of contamination allowed in balancing other relevant factors 
with the legitimacy criteria.
    We do not agree with petitioner's claim that CTRT are functionally 
the same as other comparable traditional fuels, such as fossil fuels 
that are used in a fuel mix to maintain an appropriate BTU level for 
the biomass boilers, that are combusted in the same units and subject 
to the same air pollution controls. CTRT contains contaminants at 
levels that are not comparable to the

[[Page 21028]]

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 indicate that the material is being discarded. Further, all CTRTs 
are not functionally the same as comparable 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). 
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.
    Nevertheless, we agree with petitioners that the removal of oil 
delivery mechanisms from units designed to combust fuel oil and CTRT is 
not necessarily an indication that the material is being ``discarded.'' 
As discussed above, units designed to combust both fuel oil and CTRT, 
including stoker, bubbling bed and fluidized bed boilers, are switching 
from fuel oil in order to combust natural gas. Boilers that have burned 
fuel oil currently or in the past will discontinue using fuel oil but 
have demonstrated the ability to burn that material.
5. Summary and Request for Comment
    EPA believes it has sufficient information to list CTRTs 
categorically as a non-waste fuel in combustion units that are designed 
to burn both biomass and fuel oil. 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 normal operations and not solely as part 
of start up or shut down operations.
    At the same time, the Agency is considering an approach (based on 
the information described above) that would include as a categorical 
non-waste, CTRTs that are: (1) Combusted as part of normal operations 
in existing units that are designed to burn both CTRTs and fuel oil; 
and, (2) 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. The Agency does not believe that combustion of 
CTRTs in boiler 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 should be considered discard. 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. \107\
---------------------------------------------------------------------------

    \107\ The approach under consideration, if adopted, is in 
addition to the proposed categorical listing of CTRTs combusted in 
units designed to burn biomass and fuel oil. It is not an 
alternative approach or replacement for that proposed listing.
---------------------------------------------------------------------------

    If EPA were to include this additional approach in the categorical 
listing, the CTRT could continue to be combusted only if certain 
conditions are met, which are all intended to ensure that the CTRTs are 
not being discarded. Such conditions include:
     The CTRTs must be burned in an existing stoker, bubbling 
bed or fluidized bed boiler;--
     The CTRTs can comprise no more than 40% percent of the 
fuel that is used on a monthly basis;\108\
---------------------------------------------------------------------------

    \108\ Statements at meeting between American Forest and Paper 
Association and Mathy Stanislaus on December 19, 2013 indicate that, 
CTRT generally comprises 40% of total fuel load.
---------------------------------------------------------------------------

     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 also burn natural 
gas.
    The Agency emphasizes that the approach described above is meant to 
address only the current 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 is 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 have used CTRTs and would 
clearly be in compliance with the legitimacy criteria if they do not 
switch to the cleaner natural gas fuel. EPA believes 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 \109\ would not render the 
CTRTs a waste fuel in view of the historical usage which would be 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.
---------------------------------------------------------------------------

    \109\ 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)
---------------------------------------------------------------------------

    The Agency invites comments on the proposed non-waste categorical 
determination and the additional approach under consideration described 
above. Comments should only be submitted regarding CTRTs. The Agency is 
not accepting comments on other wood treated with creosote. The Agency 
also requests 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 the factual circumstances 
described above. In addition, the Agency requests any additional data 
that should be considered in making the comparability determination.
    Regarding the additional approach under consideration, the Agency 
requests comment whether the approach should be applied to sources at 
other industries in addition to pulp and paper mills, such as utilities 
and co-generation plants. Regarding the condition that CTRTs can 
comprise no more than 40% of the fuel that is used on a monthly basis, 
the Agency requests comment on the appropriateness of the 40% limit as 
a percentage of fuel used, the monthly or yearly basis for the limit, 
and, if the additional approach is applied to other industries, such as 
utilities, what percentage (if any) would be appropriate for that 
industry(s). Finally, the Agency requests comment on whether combustors 
should be required to keep records that the conditions for burning of 
CTRT described above have been met.

VI. Technical Corrections

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

    As NHSMs that are not solid wastes when combusted under 40 CFR 
241.3(b), Sec.  241.3(b)(2) includes reserved sections (i) and (ii). 
Sections (i) and (ii) were reserved in response to the new 40 CFR 
241.4(a)(1) categorical non-waste

[[Page 21029]]

standards in the February 7, 2013 rulemaking. Those standards had 
eliminated the need for previous standards under sections (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 (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 are proposing 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 states 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 the 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 are proposing to amend the 
regulatory text in this proposed rule to add a ``not'' before ``been 
discarded'' and remove ``that'' after ``non-hazardous secondary 
material.''

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

    The Agency is also making a technical correction to 40 CFR 
241.3(d)(1)(iii) to clarify that the provision applies to combustion 
units (not just boilers). Specifically, that section of the rule 
identifies the legitimacy criteria for non-hazardous secondary 
materials 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 Commercial or 
Industrial Solid Waste Incineration (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.

VII. Effect of Today's Proposal on Other Programs

    Beyond proposing to expand the list of NHSMs that categorically 
qualify as non-waste fuels, this proposal does not change the effect of 
the NHSM regulations on other programs as described in the March 2011 
NHSM final rule, as amended in February 2013. Refer to Section VIII of 
the March 2011 NHSM final rule \110\ for the discussion on the effect 
of the NHSM rule on other programs.
---------------------------------------------------------------------------

    \110\ 76 FR 15456, March 21, 2011 (page 15545).
---------------------------------------------------------------------------

VIII. State Authority

A. Relationship to State Programs

    This proposal does not change the relationship to state programs as 
described in the March 2011 NHSM final rule. Refer to Section IX of the 
March 2011 NHSM final rule \111\ 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 proposed rule (like the March 2011 and the February 
2013 final rules) is not intended to interfere with a state's program 
authority over the general management of solid waste.
---------------------------------------------------------------------------

    \111\ 76 FR 15456, March 21, 2011 (page 15546).
---------------------------------------------------------------------------

B. State Adoption of the Rulemaking

    No federal approval procedures for state adoption of today's 
proposed 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 
today, 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, as 
proposed, 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. The proposal 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 \112\ 
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.
---------------------------------------------------------------------------

    \112\ 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, we have prepared an 
assessment in support of this action that examines the potential scope 
and direction of these indirect impacts, for both costs and 
benefits.\113\ This document is available in the docket for review and 
comment. Finally, we recognize that this action would indirectly affect 
various materials management programs and policies, and we are 
sensitive to these concerns. The Agency encourages comment on these 
effects.
---------------------------------------------------------------------------

    \113\ U.S. EPA, Office of Resource Conservation and Recovery, 
``Assessment of the Potential Costs, Benefits, and Other Impacts for 
the Proposed Rule: Categorical Non-Waste Determination for Selected 
Non Hazardous Secondary Materials (NHSMs): Construction and 
Demolition Wood, Recycling Process Residuals, and Creosote-Treated 
Railroad Ties'' July 22, 2013.
---------------------------------------------------------------------------

    The assessment document, as mentioned above, finds that facilities 
operating under CAA section 129 standards that are currently burning 
CTRTs, and no other solid wastes, and who had planned to continue 
burning these materials, may experience cost savings associated with 
the potential modification and operational adjustments of their 
affected units. In this case, the unit-level cost savings are 
estimated, on average, to be

[[Page 21030]]

approximately $266,000 per year. In addition, the increased regulatory 
clarity and certainty associated with this action may stimulate 
increased product fuel use for one or more of these NHSMs, potentially 
resulting in upstream life cycle benefits associated with reduced 
extraction of selected virgin materials.

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action'' because it may raise 
novel legal or policy issues. Accordingly, EPA submitted this action to 
the Office of Management and Budget (OMB) for review under Executive 
Orders 12866 and 13563 (76 FR 3821, January 21, 2011). Any changes made 
in response to OMB recommendations have been documented in the docket 
for this action.

 B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 2493.01.
    This action will impose a direct RCRA related burden associated 
with reading and understanding the rule. This burden is estimated at 
approximately $74 per entity and would impact facilities that generate 
the proposed NHSMs, and those that combust these materials as a fuel 
product. In addition, combustors of C&D wood must 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. We estimate the preparation of this certification would take 
about 4.1 hours for processors to prepare, at a total cost of 
approximately $299 per statement.\114\ In addition, the burner would 
need to receive, review and maintain the certification statement. The 
indirect cost for this activity is estimated at $23.40 per submission. 
Burden is defined at 5 CFR 1320.3(b).
---------------------------------------------------------------------------

    \114\ U.S. EPA, Office of Resource Conservation and Recovery, 
``Assessment of the Potential Costs, Benefits, and Other Impacts for 
the Proposed Rule: Categorical Non-Waste Determination for Selected 
Non Hazardous Secondary Materials (NHSMs): Construction and 
Demolition Wood, Recycling Process Residuals, and Creosote-Treated 
Railroad Ties'' July 22, 2013. [Appendix C]
---------------------------------------------------------------------------

    The preparation of the certification statement and the need to 
maintain certification status is the responsibility of the processor. 
The combustor 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. Thus, 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.
    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 EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, EPA has established a public docket for 
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2013-0110. Submit any comments related to the ICR to EPA and OMB. See 
ADDRESSES section at the beginning of this notice for where to submit 
comments to EPA. Send comments to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street 
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is 
required to make a decision concerning the ICR between 30 and 60 days 
after April 14, 2014, a comment to OMB is best assured of having its 
full effect if OMB receives it by May 14, 2014. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the SBA's regulations at 13 CFR 121.201; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; or (3) a small organization that is any not-for-profit 
enterprise that is independently owned and operated and is not dominant 
in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analysis is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, 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, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    The proposed addition of the three NHSMs to the list of categorical 
non-waste fuels is expected to 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 today's proposed rule will 
relieve regulatory burden for all affected small entities. We continue 
to be interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. UMRA generally excludes from the definition of ``Federal 
intergovernmental mandate'' duties that

[[Page 21031]]

arise from participation in a voluntary Federal program. Affected 
entities are not required to manage the proposed additional NHSMs as 
non-waste fuels. As a result, this action may be considered voluntary 
under UMRA. Therefore, this action is not subject to the requirements 
of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. In addition, this 
proposal will not impose direct compliance costs on small governments.

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, as 
specified in Executive Order 13132. This proposed rule will not impose 
direct compliance costs on state or local governments and will not 
preempt state law. Thus, Executive Order 13132 does not apply to this 
action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed action 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Subject to the Executive Order 13175 (65 FR 67249, November 9, 
2000), EPA may not issue a regulation that has tribal implications, 
that imposes substantial direct compliance costs, and that is not 
required by statute, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by tribal 
governments, or EPA consults with tribal officials early in the process 
of developing the proposed regulation and develops a tribal summary 
impact statement.
    EPA has concluded that this action may have tribal implications. 
However, it will neither impose substantial direct compliance costs on 
tribal governments, nor preempt Tribal law. Potential aspects 
associated with the categorical non-waste fuel determinations under 
this proposed rule may invoke minor indirect tribal 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.
    EPA specifically solicits additional comment on this proposed 
action from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in EO 
12866, and because the Agency 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 found 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.
    The proposed rule, in conjunction with the corresponding CAA rules, 
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 whether children make up a disproportionate share of 
the population living near the affected units. Therefore, to assess the 
potential 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 
construction and demolition (C&D) landfills for the Major and Area 
Source Boilers rules and the CISWI rule.\115\ We assessed the share of 
the population under the age of 18 living within a three-mile 
(approximately five kilometers) radius of these facilities.
---------------------------------------------------------------------------

    \115\ The extremely large number of area source boilers and the 
absence of site-specific coordinates prevented us from assessing the 
demographics of populations located near these sources. In addition, 
we did not assess child population percentages surrounding cement 
kilns that may use some out-of-service railroad crossties for their 
thermal value.
---------------------------------------------------------------------------

    For major source boilers, our findings indicate that the percentage 
of the population in these areas under age 18 years is generally the 
same as the national average.\116\ 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 would 
remain subject to the protective CAA section 112 standards. For 
municipal solid waste and C&D landfills, we do not have demographic 
results specific to children. However, using the population below the 
poverty level as a rough surrogate for children, we found that within 
three miles of facilities that may experience diversions of one or more 
of these NHSMs, 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 affecting 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.
---------------------------------------------------------------------------

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

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.

[[Page 21032]]

    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has concluded that it is not practicable to determine whether 
there would be disproportionately high and adverse human health or 
environmental effects on minority and/or low-income populations from 
this proposed rule. However, the overall level of emissions, or the 
emissions mix from affected boilers are not expected to change 
significantly because the three NHSMs proposed to be categorically 
listed as non-waste fuels are generally comparable to the types of 
fuels that these combustors would otherwise burn. Furthermore, these 
units remain subject to the protective standards established under CAA 
Section 112.
    Our environmental justice demographics assessment conducted for the 
prior rulemaking \117\ remains relevant to this action. This assessment 
reviewed the distributions of minority and low-income groups living 
near potentially affected sources using U.S. Census blocks. A three-
mile radius (approximately five kilometers) was examined in order to 
determine the demographic composition (e.g., race, income, etc.) of 
these blocks for comparison to the corresponding national compositions. 
Findings from this analysis indicated 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 \118\ of the population was 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) was 
higher than the national average (13 percent).
---------------------------------------------------------------------------

    \117\ 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.
    \118\ This figure is for overall population minus white 
population and does not include the Census group defined as ``White 
Hispanic.''
---------------------------------------------------------------------------

    In addition to the demographics assessment described above, 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 may 
include the following:
     Reduced upstream emissions resulting from the reduced 
production of virgin fuel: Any reduced upstream emissions that may 
occur in response to reduced virgin fuel mining or extraction may 
result in a human health and/or environmental benefit to minority and 
low-income populations living near these projects.
     Alternative materials transport patterns: Transportation 
emissions associated with NHSMs diverted from landfills to boilers are 
likely to be similar, except for on-site paper recycling residuals, 
where the potential for less off-site transport to landfills may result 
in reduced truck traffic and emissions where such transport patterns 
may pass through minority or low-income communities.
     Change in emissions from baseline management units: The 
diversion of some of these NHSMs away from disposal in landfills may 
result in a marginal decrease in activity at or near 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 
(even if only marginally) the citizens living near these facilities.
    Finally, this rule may help to accelerate the abatement of any 
existing stockpiles of these NHSM materials. To the extent that these 
stockpiles may have 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 NHSMs. Any potential 
materials management changes, and corresponding impacts to minority and 
low-income communities, should be considered indirect responses to this 
rulemaking, and would only occur when this rule is implemented in 
conjunction with the corresponding CAA rules.

List of Subjects in 40 CFR Part 241

    Environmental protection, Air pollution control, Waste treatment 
and disposal.

    Dated: March 24, 2014.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, Title 40, chapter I, of the 
Code of Federal Regulations is proposed to be 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 the definitions for 
``Construction and demolition (C&D)'', ``Creosote treated railroad 
ties'', and ``Paper recycling residuals'' in alphabetical order 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 cutting wood down to size during 
installation or from purchasing more wood than a project ultimately 
requires. C&D wood from demolition activities results from dismantling 
buildings and other structures or removing materials during renovation.
* * * * *
    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 co-product material generated 
from the paper recycling process and is

[[Page 21033]]

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.
* * * * *

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 (b)(2), (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.

* * * * *
    (b) * * *
    (2) [Reserved]
* * * * *
    (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 Solid Waste and Emergency 
Response 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 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) which 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 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 revising the section heading and adding 
paragraphs (a)(5), (6), and (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) C&D processing facilities that use positive sorting--where 
operators pick out desirable wood from co-mingled debris--must either:
    (A) Exclude all painted wood 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) 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 painted wood,
    (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.
    (6) Paper recycling residuals, including old corrugated cardboard 
(OCC) 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.
    (7) Creosote-treated railroad ties that are processed and combusted 
in units designed to burn both biomass and fuel oil.
* * * * *
[FR Doc. 2014-07375 Filed 4-11-14; 8:45 am]
BILLING CODE 6560-50-P