[Federal Register Volume 81, Number 25 (Monday, February 8, 2016)]
[Rules and Regulations]
[Pages 6688-6743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01866]
[[Page 6687]]
Vol. 81
Monday,
No. 25
February 8, 2016
Part III
Environmental Protection Agency
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40 CFR Part 241
Additions to List of Categorical Non-Waste Fuels; Final Rule
Federal Register / Vol. 81 , No. 25 / Monday, February 8, 2016 /
Rules and Regulations
[[Page 6688]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 241
[EPA-HQ-RCRA-2013-0110; FRL-9929-56-OLEM]
RIN-2050-AG74
Additions to List of Categorical Non-Waste Fuels
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
issuing amendments to the Non-Hazardous Secondary Materials rule,
initially promulgated on March 21, 2011, and amended on February 7,
2013, under the Resource Conservation and Recovery Act. The Non-
Hazardous Secondary Materials rule generally established standards and
procedures for identifying whether non-hazardous secondary materials
are solid wastes when used as fuels or ingredients in combustion units.
In the February 2013 amendments, the EPA listed particular non-
hazardous secondary materials as ``categorical non-waste fuels''
provided certain conditions are met. Persons burning these non-
hazardous secondary materials do not need to evaluate them under the
general case-by-case standards and procedures that would otherwise
apply to non-hazardous secondary materials used in combustion units.
This action adds three materials to the list of categorical non-waste
fuels: Construction and demolition wood processed from construction and
demolition debris according to best management practices; paper
recycling residuals generated from the recycling of recovered paper,
paperboard and corrugated containers and combusted by paper recycling
mills whose boilers are designed to burn solid fuel; and creosote
treated railroad ties that are processed and then combusted in the
following types of units: Units designed to burn both biomass and fuel
oil as part of normal operations and not solely as part of start-up or
shut-down operations, and units at major source pulp and paper mills or
power producers subject to 40 CFR part 63, subpart DDDDD that combust
CTRT and had been designed to burn biomass and fuel oil, but are
modified (e.g. oil delivery mechanisms are removed) in order to use
natural gas instead of fuel oil, as part of normal operations and not
solely as part of start-up or shut-down operations.
DATES: This rule is effective March 9, 2016.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-RCRA-2013-0110. All documents in the docket are
listed on the http://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
at http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
RCRA Docket is (202) 566-0270.
FOR FURTHER INFORMATION CONTACT: George Faison, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460; telephone number: (703) 305-7652;
email: faison.george@epa.gov.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. General Information
A. Does this action apply to me?
B. Why is the EPA taking this action?
II. Statutory Authority
III. Introduction-Summary of Regulations Being Finalized
IV. Background
A. History of the NHSM Rulemakings
B. Background to Final Rule
C. How does the EPA make categorical non-waste determinations?
V. Comments on the Proposed Rule and Rationale for Final Decisions
A. Construction and Demolition Debris Processed According to
Best Management Practices
1. Detailed Description of C&D Wood
2. C&D Wood Under Current NHSM Rules
3. Scope of the Proposed Rule and Final Categorical Non-Waste
Listing for C&D Wood
4. Rationale for Final Rule
5. Summary of Comments Requested
6. Response to Comments
B. Paper Recycling Residuals Used as Fuel at Paper Recycling
Mills
1. Detailed Description of Paper Recycling Residuals
2. PRRs Under Previous NHSM Rules
3. Scope of the Proposed Rule and Final Categorical Non-Waste
Listing for Certain PRRs
4. Rationale for Final Rule
5. Summary of Comments Requested
6. Responses to Comments
C. Creosote-Treated Railroad Ties (CTRTs)
1. Detailed Description of CTRTs
2. CTRTs Under Previous NHSM Rules
3. Scope of the Proposed Rule and Final Categorical Non-Waste
Listing for CTRT
4. Rationale for Final Rule
5. Summary of Comments Requested
6. Responses to Comments
VI. Technical Corrections
A. Change to 40 CFR 241.3(b)(2)
B. Change to 40 CFR 241.3(c)(1)
C. Change to 40 CFR 241.3(d)(1)(iii)
VII. Effect of This Rule on Other Programs
VIII. State Authority
A. Relationship to State Programs
B. State Adoption of the Rulemaking
IX. Cost and Benefits
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Categories and entities potentially affected by this action, either
directly or indirectly, include, but may not be limited to the
following:
[[Page 6689]]
Generators and Potential Users \a\ of the New Materials To Be Added to
the List of Categorical Non-Waste Fuels
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Primary industry category or sub category NAICS \b\
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Utilities............................................... 221
Construction of Buildings............................... 236
Site Preparation Contractors............................ 238910
Manufacturing........................................... 31, 32, 33
Wood Product Manufacturing.............................. 321
Sawmills................................................ 321113
Wood Preservation (includes crosstie creosote treating). 321114
Pulp, Paper, and Paper Products......................... 322
Cement manufacturing.................................... 32731
Railroads (includes line haul and short line)........... 482
Scenic and Sightseeing Transportation, Land (Includes: 487110
Railroad, scenic and sightseeing)......................
Port and Harbor Operations (Used railroad ties)......... 488310
Landscaping Services.................................... 561730
Solid Waste Collection.................................. 562111
Solid Waste Landfill.................................... 562212
Solid Waste Combustors and Incinerators................. 562213
Marinas................................................. 713930
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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 the
EPA is aware that could potentially be affected by this action. Other
types of entities not listed could also be affected. To determine
whether your facility, company, business, organization, etc., is
affected by this action, you should examine the applicability criteria
in this rule. If you have any questions regarding the applicability of
this action to a particular entity, consult the person listed in the
FOR FURTHER INFORMATION CONTACT section.
B. Why is the EPA taking this action?
The Non-Hazardous Secondary Materials (NHSM) regulations at 40 CFR
part 241 generally establish standards and procedures for identifying
whether NHSMs are solid wastes when used as fuels or ingredients in
combustion units. In the February 2013 amendments, the EPA listed
particular NHSMs as ``categorical non-waste fuels'' provided certain
conditions are met. Persons burning these NHSMs do not need to evaluate
them under the general case-by-case standards and procedures that would
otherwise apply to NHSMs used in combustion units. This action adds
three materials to the list of categorical non-waste fuels: (1)
Construction and demolition (C&D) wood processed from C&D debris
according to best management practices, (2) paper recycling residuals
generated from the recycling of recovered paper, paperboard and
corrugated containers and combusted by paper recycling mills whose
boilers are designed to burn solid fuels; and (3) creosote treated
railroad ties that are processed and then combusted in the types of
units described herein.
Abbreviations and Acronyms. The following acronyms and
abbreviations are used in this document.
ATCM Airborne Toxic Control Measure
BMP Best management practice
Btu British thermal unit
C&D Construction and demolition
CAA Clean Air Act
CARB California Air Resources Board
CBI Confidential business information
CCA Chromated copper arsenate
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incinerator
CTRT Cresosote-treated railroad tie
EPA U.S. Environmental Protection Agency
FR Federal Register
HAP Hazardous air pollutant
ICR Information collection request
MACT Maximum achievable control technology
NAICS North American Industrial Classification System
ND Non-detect
NESHAP National emission standards for hazardous air pollutants
NHSM Non-hazardous secondary material
OCC Old Corrugated Cardboard
OMB Office of Management and Budget
PAH Polycyclic aromatic hydrocarbons
ppm Parts per million
PRR Paper recycling residual
PVC Polyvinyl chloride
RCRA Resource Conservation and Recovery Act
RIN Regulatory information number
SBA Small Business Administration
SO2 Sulfur dioxide
SVOC Semi-volatile organic compound
TCLP Toxicity characteristic leaching procedure
UMRA Unfunded Mandates Reform Act
UPL Upper prediction limit
U.S.C. United States Code
VOC Volatile organic compound
XRF X-ray fluorescence
II. Statutory Authority
The EPA is issuing final amendments to list certain NHSMs as
categorical non-waste fuels in 40 CFR 241.4(a) under the authority of
sections 2002(a)(1) and 1004(27) of the Resource Conservation and
Recovery Act (RCRA), as amended, 42 U.S.C. 6912(a)(1) and 6903(27).
Section 129(a)(1)(D) of the Clean Air Act (CAA) directs the EPA to
establish standards for Commercial and Industrial Solid Waste
Incinerators (CISWI), which burn solid waste. Section 129(g)(6) of the
CAA provides that the term ``solid waste'' is to be established by the
EPA under RCRA (42 U.S.C. 7429). Section 2002(a)(1) of RCRA authorizes
the Agency to promulgate regulations as are necessary to carry out its
functions under the Act. The statutory definition of ``solid waste'' is
stated in RCRA section 1004(27).
III. Introduction-Summary of Regulations Being Finalized
Regulations concerning NHSMs used as fuels or ingredients in
combustion units are codified in 40 CFR part 241.\1\ This action amends
the part 241 regulations by adding three NHSMs to the list of
categorical non-waste fuels codified in Sec. 241.4(a). These new
categorical listings are for:
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\1\ 40 CFR 241.2 defines non-hazardous secondary material as a
secondary material that, when discarded, would not be identified as
a hazardous waste under 40 CFR part 261.
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Construction and demolition (C&D) wood processed from C&D
debris according to best management practices.
[[Page 6690]]
Paper recycling residuals generated from the recycling of
recovered paper, paperboard and corrugated containers and combusted by
paper recycling mills whose boilers are designed to burn solid fuel.
Creosote treated railroad ties that are processed and then
combusted in the following types of units: Units designed to burn both
biomass and fuel oil as part of normal operations and not solely as
part of start-up or shut-down operations, and units at major source
pulp and paper mills or power producers \2\ subject to 40 CFR part 63,
subpart DDDDD that combust CTRT and had been designed to burn biomass
and fuel oil, but are modified (e.g. oil delivery mechanisms were
removed) in order to use natural gas instead of fuel oil, as part of
normal operations and not solely as part of start-up or shut-down
operations.
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\2\ 40 CFR 241.2 defines power producer as a boiler unit
producing electricity for sale to the grid. The term does not
include units meeting the definition of electricity generating unit
under 40 CFR 63.10042 of the Utility Mercury and Air Toxics
Standards rule.
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(Refer to section V of this preamble or the regulatory text for a
full description of the categorical listings).
Determining whether a material is a solid waste is of particular
importance as it relates to CAA section 129. That section states the
term ``solid waste'' shall have the meaning ``established by the
Administrator pursuant to the Solid Waste Disposal Act.'' Id at
7429(g)(6). The Solid Waste Disposal Act, as amended, is commonly
referred to as the Resource Conservation and Recovery Act or RCRA. If a
material is a solid waste under RCRA, a combustion unit burning that
material is required to meet the CAA section 129 emission standards for
solid waste incineration units. If the material is not a solid waste,
combustion units are required to meet the CAA section 112 emission
standards for commercial, industrial, and institutional boilers or, if
the combustion unit is a cement kiln, the CAA section 112 emissions
standards for Portland cement kilns. Under CAA section 129, the term
``solid waste incineration unit'' is defined, in pertinent part, to
mean ``a distinct operating unit of any facility which combusts any
solid waste material from commercial or industrial establishments . .
.'' 42 U.S.C. 7429(g)(1). The courts have determined that the CAA
unambiguously requires any unit that combusts ``any solid waste
material at all''--regardless of whether the material is being burned
for energy recovery--to be regulated as a solid waste incineration
unit. See NRDC v. EPA (489 F.3d 1250 (D.C. Cir. 2007)).
RCRA defines ``solid waste'' as ``. . . any garbage, refuse, sludge
from a waste treatment plant, water supply treatment plant, or air
pollution control facility and other discarded material . . . resulting
from industrial, commercial, mining, and agricultural operations, and
from community activities . . .'' (RCRA section 1004 (27) (emphasis
added)). The key concept is that of ``discard'' and, in fact, this
definition turns on the meaning of the phrase, ``other discarded
material,'' since this term encompasses all other examples provided in
the definition. In determining the meaning of discard, the courts have
determined that the ordinary, plain English definition controls, i.e.,
discard means ``disposed of,'' ``thrown away'' or ``abandoned.'' See
American Mining Congress v. EPA 824 F. 2d 1177 (D.C. Dir. 1987); see 76
FR 15460 for a detailed discussion on the RCRA definition of solid
waste and CAA section 129.
IV. Background
A. History of the NHSM Rulemakings
The Agency first solicited comments on how the RCRA definition of
solid waste should apply to NHSMs when used as fuels or ingredients in
combustion units in an advanced notice of proposed rulemaking (ANPRM),
which was published in the Federal Register on January 2, 2009 (74 FR
41). We then published an NHSM proposed rule on June 4, 2010 (75 FR
31844), which the EPA made final on March 21, 2011 (76 FR 15456).
In the March 21, 2011 rule, the EPA finalized standards and
procedures to be used to identify whether NHSMs are solid wastes when
used as fuels or ingredients in combustion units. ``Secondary
material'' was defined for the purposes of that rulemaking as any
material that is not the primary product of a manufacturing or
commercial process, and can include post-consumer material, off-
specification commercial chemical products or manufacturing chemical
intermediates, post-industrial material, and scrap (codified in 40 CFR
241.2). ``Non-hazardous secondary material'' is a secondary material
that, when discarded, would not be identified as a hazardous waste
under 40 CFR part 261 (codified in 40 CFR 241.2). Traditional fuels,
including historically managed traditional fuels (e.g., coal, oil,
natural gas) and ``alternative'' traditional fuels (e.g., clean
cellulosic biomass) are not secondary materials and thus, are not solid
wastes under the rule unless discarded.
A key concept under the March 21, 2011 rule is that NHSMs used as
non-waste fuels in combustion units must meet the legitimacy criteria
specified in 40 CFR 241.3(d)(1). Application of the legitimacy criteria
helps ensure that the fuel product is being legitimately and
beneficially used and not simply being discarded through combustion
(i.e., via sham recycling). To meet the legitimacy criteria, the NHSM
must be managed as a valuable commodity, have a meaningful heating
value and be used as a fuel in a combustion unit that recovers energy,
and contain contaminants or groups of contaminants at concentrations
comparable to (or lower than) those in traditional fuels which the
combustion unit is designed to burn.
Based on these criteria, the March 21, 2011 rule identified the
following NHSMs as not being solid wastes:
The NHSM is used as a fuel and remains under the control
of the generator (whether at the site of generation or another site the
generator has control over) that meets the legitimacy criteria (40 CFR
241.3(b)(1));
The NHSM is used as an ingredient in a manufacturing
process (whether by the generator or outside the control of the
generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));
Discarded NHSM has been sufficiently processed to produce
a fuel or ingredient that meets the legitimacy criteria (40 CFR
241.3(b)(4)); or
Through a case-by-case petition process, it has been
determined that the NHSM handled outside the control of the generator
has not been discarded and is indistinguishable in all relevant aspects
from a fuel product, and meets the legitimacy criteria (40 CFR
241.3(c)).
In October 2011, the Agency announced it would be initiating a new
rulemaking proceeding to revise certain aspects of the NHSM rule.\3\ On
February 7, 2013, the EPA published a final rule, which addressed
specific targeted amendments and clarifications to the 40 CFR part 241
regulations (78 FR 9112). These revisions and clarifications were
limited to certain issues on which the Agency had received new
information, as well as targeted revisions that the Agency believed
were appropriate in order to allow implementation of the rule as the
EPA originally intended. The amendments modified 40 CFR 241.2
[[Page 6691]]
and 241.3, added 40 CFR 241.4, and included the following: \4\
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\3\ See October 14, 2011, Letter from Administrator Lisa P.
Jackson to Senator Olympia Snowe. A copy of this letter has been
placed in the docket for this final rule (EPA-HQ-RCRA-2008-1873).
\4\ See 78 FR 9112 (February 7, 2013) for a discussion of the
rule and the Agency's basis for its decisions.
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Revised Definitions: The EPA revised three definitions
discussed in the proposed rule: (1) ``clean cellulosic biomass,'' (2)
``contaminants,'' and (3) ``established tire collection programs.'' In
addition, based on comments received on the proposed rule, the Agency
revised the definition of ``resinated wood.''
Contaminant Legitimacy Criterion for NHSMs Used as Fuels:
The EPA issued revised contaminant legitimacy criterion for NHSMs used
as fuels to provide additional details on how contaminant-specific
comparisons between NHSMs and traditional fuels may be made. The
revisions include: (1) The ability to compare groups of contaminants
where technically reasonable; (2) clarification that ``designed to
burn'' means can burn or does burn, and not necessarily permitted to
burn; (3) the ability to use traditional fuel data from national
surveys and other sources beyond a facility's current fuel supplier;
and (4) the ability to use ranges of traditional fuel contaminant
levels when making contaminant comparisons, provided the variability of
the NHSM contaminant levels is also considered.
Categorical Non-Waste Determinations for Specific NHSMs
Used as Fuels. The EPA codified determinations that certain NHSMs are
non-wastes when used as fuels. If a material is categorically listed as
a non-waste fuel, persons that generate or burn these NHSMs will not
need to make individual determinations, as required under the existing
rules, that these NHSMs meet the legitimacy criteria. Except where
otherwise noted, combustors of these materials will not be required to
provide further information demonstrating their non-waste status. Based
on all available information, the EPA determined the following NHSMs
are not solid wastes when burned as a fuel in combustion units and has
categorically listed them in 40 CFR 241.4(a).\5\
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\5\ In the March 21, 2011 NHSM rule (76 FR 15456), EPA
identified two NHSMs as not being solid wastes, although persons
would still need to make individual determinations that these NHSMs
meet the legitimacy criteria: (1) Scrap tires used in a combustion
unit that are removed from vehicles and managed under the oversight
of established tire collection programs and (2) resinated wood used
in a combustion unit. However, in the February 2013 NHSM rule, the
Agency amended the regulations and categorically listed these NHSMs
as not being solid wastes.
-- Scrap tires that are not discarded and are managed under the
oversight of established tire collection programs, including tires
removed from vehicles and off-specification tires;
-- Resinated wood;
-- Coal refuse that has been recovered from legacy piles and processed
in the same manner as currently-generated coal that would have been
refuse if mined in the past;
-- Dewatered pulp and paper sludges that are not discarded and are
generated and burned on-site by pulp and paper mills that burn a
significant portion of such materials where such dewatered residuals
are managed in a manner that preserves the meaningful heating value of
the materials.
Rulemaking Petition Process for Other Categorical Non-
Waste Determinations: EPA made final a process in 40 CFR 241.4(b) that
provides persons an opportunity to submit a rulemaking petition to the
Administrator, seeking a determination for additional NHSMs to be
categorically listed in 40 CFR 241.4(a) as non-waste fuels, if they can
demonstrate that the NHSM meets the legitimacy criteria or, after
balancing the legitimacy criteria with other relevant factors, EPA
determines that the NHSM is not a solid waste when used as a fuel.
Based on these non-waste categorical determinations, as discussed
above, facilities burning NHSMs that meet the categorical listing
description will not need to make individual determinations that the
NHSM meets the legitimacy criteria or provide further information
demonstrating their non-waste status on a site-by-site basis, provided
they meet the conditions of the categorical listing. Please refer to
section IV.C of this preamble for details on the petition process.
B. Background to Final Rule
As discussed in the February 2013 final rule,\6\ the Agency had
received comments that additional NHSMs should be categorically listed
as non-waste fuels for which the Agency had not requested information
as a part of that proposal. We did not respond to such comments and
issues since they were beyond the scope of that rulemaking and
indicated that, because the Agency did not specifically solicit
comments or propose that those NHSMs be categorically listed in 40 CFR
241.4(a), the Agency must go through notice and comment rulemaking
before making a final decision. The February 2013 rule noted, however,
that two NHSMs--paper recycling residuals (including old corrugated
cardboard (OCC) rejects) and construction and demolition debris
processed pursuant to best practices--would be good candidates for a
future proposal based on information provided to the Agency and that
EPA expected to propose those listings in a subsequent rulemaking.
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\6\ 78 FR 9160.
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To supplement the comments identified in the February 2013 rule,
the Agency received additional information on these two NHSMs from
stakeholders (see section V of this preamble). As discussed in the
following sections, the EPA has determined the information received to
date, when taken together, supports a categorical determination of
these materials as non-waste fuels and is today listing them as
categorical non-waste fuels in 40 CFR 241.4(a).
In addition to paper recycling residuals and construction and
demolition debris, the Agency identified creosote-treated railroad ties
in the February 2013 final rule as a potential candidate for a
categorical non-waste listing based on comments from stakeholders.
However, the Agency indicated that additional information would need to
be submitted before this NHSM could be addressed. If such information
supported the representations made by industry--that is, the American
Forest & Paper Association (AF&PA) and the American Wood Council--EPA
stated that it expected to propose a categorical listing for this
material as well. Finally, we noted in the February 2013 final rule
that the Agency received a letter from the Treated Wood Council asking
that non-hazardous treated wood be categorically listed--a broad
category that would include creosote-treated railroad ties. The Agency
noted it was in the process of reviewing the information in the letter
and would consider whether to propose a categorical listing for this
broader set of treated wood material.
The Agency has reviewed the information submitted from stakeholders
regarding creosote-treated railroad ties. As discussed in the following
sections, the EPA has determined that the information received to date,
when taken together, supports a categorical determination for creosote-
treated railroad ties when combusted in the types of units described
herein and is listing them as categorical non-wastes fuels in 40 CFR
241.4(a).\7\ (refer to section V of this
[[Page 6692]]
preamble or the regulatory text for a full description of this
categorical listing).
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\7\ As noted above, the Agency also received a petition from the
Treated Wood Council asking that non-hazardous treated wood be
categorically listed--a broad category that would include creosote-
treated railroad ties. Other treated wood addressed in the petition
included waterborne borate-based preservatives, waterborne organic-
based preservatives, waterborne copper-based wood preservatives
(ammoniacal/alkaline copper quat, copper azole, copper HDO, alkaline
copper betaine, or copper naphthenate); creosote; oilborne copper
naphthenate; pentachlorophenol; or dual-treated with any of the
above. The Agency is in the process of reviewing that petition and
supplementary information submitted subsequent to the petition.
Accordingly, while cresosote treated wood railroad ties is included
in the current rule, other treated wood materials identified in the
Treated Wood Council's petition are not addressed in this action. If
upon completion of the Agency's review, the information supports a
categorical listing of one or more of these other treated wood
materials, the Agency would propose those materials in a future
rulemaking. See also discussion under Comments and Information
Received on Other Types of Treated Wood in section V.A.6.c..
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C. How does the EPA make categorical non-waste determinations?
The February 7, 2013 revisions to the NHSM rule discuss the process
and decision criteria whereby the Agency would make additional
categorical non-waste determinations. (See 78 FR 9158.) While the
categorical non-waste determinations in this action are not based on
rulemaking petitions, the criteria the EPA used to assess these NHSMs
as categorical non-wastes match the criteria to be used by the
Administrator to determine whether to grant or deny the categorical
non-waste petitions.\8\ \9\ These determinations follow the criteria
set out in 40 CFR 241.4(b)(5) to assess additional categorical non-
waste petitions and follow the statutory standards as interpreted by
the EPA in the NHSM rule for deciding whether secondary materials are
wastes. Those criteria include: (1) Whether each NHSM has not been
discarded in the first instance (i.e., was not initially abandoned or
thrown away) and is legitimately used as a fuel in a combustion unit
or, if discarded, has been sufficiently processed into a material that
is legitimately used as a fuel; and, (2) if the NHSM does not meet the
legitimacy criteria described in 40 CFR 241.3(d)(1), whether the NHSM
is integrally tied to the industrial production process, the NHSM is
functionally the same as the comparable traditional fuel, or other
relevant factors as appropriate.
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\8\ For a full discussion regarding the petition process for
receiving a categorical non-waste determination, see 78 FR 9111,
February 7, 2013 (page 9158-9159).
\9\ Supplementary information received from by M.A. Energy
Resources (February 2013) in support of the crosstie derived fuel
was submitted as a categorical petition in accordance 40 CFR
241.4(b).
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Based on the information in the rulemaking record, including
stakeholder comments, the Agency is amending 40 CFR 241.4(a) by listing
three additional NHSMs as categorical non-wastes. Specific
determinations regarding C&D wood, paper recycling residuals, and
creosote-treated railroad ties as categorical non-wastes and how the
information was assessed by EPA according to the criteria in 40 CFR
241.4(b)(5) are discussed in detail in section V of this preamble.
V. Comments on the Proposed Rule and Rationale for Final Decisions
In this section, the EPA provides the rationale for its
determination that the three additional NHSMs are appropriate for
listing as categorical non-wastes, under certain conditions. It also
addresses major comments the Agency received regarding the three NHSMs
proposed in the April 14, 2014 rule (79 FR 21005).
A. Construction and Demolition Debris Processed According to Best
Management Practices
The April 14, 2014 proposed rule described C&D wood in detail (79
FR 21010-11), explained the status of C&D wood under current rules,
discussed comments received during previous proceedings, as well as the
scope of the proposed non-waste listing (79 FR 21011-12). The proposed
rationale for the listing is found in the proposal at 79 FR 21012-16
and is summarized and incorporated into this final rule, along with all
sources referenced in that discussion and cited therein. The final
decision in this rule is based on the information in the proposal and
supporting materials in the rulemaking record. Any changes made to the
final rule are based on the rationale, as described below.
1. Detailed Description of C&D Wood
As described in the proposed rule (79 FR 21010-11) and reiterated
here, C&D wood is generated from the processing of debris from
construction and demolition activities for the purposes of recovering
wood. At construction activities, this debris results from cutting wood
down to size during installation or from purchasing more wood than a
project ultimately requires, while at demolition activities, this
debris results from dismantling buildings and other structures or
removing materials during renovation.\10\ Information previously
compiled by the Agency indicates C&D activities generate an estimated
33 to 49 million tons of scrap wood each year, approximately half of
which is of acceptable size, quality, and condition to be considered
available for recovery. However, information on the amount of processed
C&D wood that is burned for energy recovery is unavailable, although
sources surveyed by EPA for the 2010 proposed CISWI rule and the
National Emission Standards for Hazardous Air Pollutants for Area and
Major Industrial, Commercial, and Institutional Boilers (Boilers) rule
indicate that between 4.7 to 11.2 million tons per year of processed
C&D wood may be burned for energy recovery.\11\
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\10\ Two revisions have been made to the definition of C&D wood.
Please refer to section V.A.3. of this preamble for a discussion of
the revisions to the definition of C&D wood for the final rule.
\11\ Materials Characterization Paper: Construction and
Demolition Materials. February 3, 2011. EPA-HQ-RCRA-2008-0329-1811.
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Also, because clean C&D wood is considered ``clean cellulosic
biomass'' and is already excluded from being a solid waste,\12\ the
Agency expected the proposed rule would address C&D wood generated
predominantly from demolition activities. However, the proposal
acknowledged clean C&D wood generated from construction activities that
is mixed with contaminated C&D debris would be subject to the same
practices and requirements described in the proposed rulemaking,
because it is comingled with contaminated materials that would not
constitute ``clean cellulosic biomass.'' The Agency finds, similarly,
the practices and requirements adopted in this final rule, which are
modified slightly from the proposal, also apply to the commingled
materials generated from construction activities. No information was
presented in this rulemaking to cause the Agency to find otherwise.
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\12\ Clean C&D wood is included in the definition of ``clean
cellulosic biomass'' and thus, may be combusted as a traditional
fuel if it does not contain contaminants at concentrations not
normally associated with virgin wood. Conversely, C&D wood that is
not ``clean'' is that which must be processed to remove contaminants
such as lead-painted wood, treated wood containing contaminants,
such as arsenic and chromium, metals and other non-wood materials.
(See 76 FR 15485, March 21, 2011; 78 FR 9138-39, February 7, 2013;
and 40 CFR 241.2).
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With respect to how C&D debris is handled, we noted in the proposal
and find in this final rule that, although contractors may segregate
C&D debris at building sites, the common practice--at demolition sites
in particular--is to send co-mingled debris to independent C&D
recycling or processing facilities. At these facilities, operators
recover wood scraps from a mixture of building materials that often
includes metals, concrete, plastics, and other items that are
unsuitable for energy recovery in combustion units. Some operators use
``positive sorting'' techniques, meaning
[[Page 6693]]
they specifically remove wood scraps from the co-mingled debris,
picking out only desirable wood and leaving all other C&D debris behind
for disposal or other recycling processes. Other operators use
``negative sorting'' techniques, meaning they achieve a similarly clean
final product by removing or excluding contaminated or otherwise
undesirable material from the C&D debris. Regardless of whether they
use positive or negative sorting, processing facilities then grind the
recovered wood to a specified size and deliver it to energy recovery
facilities.
C&D wood processing facilities can use a variety of techniques to
remove or exclude debris unsuitable for a product fuel. Typically,
processors use some combination of source control, inspection, sorting,
and screening to meet the specifications identified by their customers
(i.e., combustion facilities). The nature of the incoming C&D debris,
the extent of material segregation prior to arrival at the processing
facility, whether positive or negative sorting is employed, and the
scale of the processing facility (e.g., the degree of sorting and
number of screening devices) help determine which combination of
practices will be most effective. Individual states also have different
requirements related to the processing and combustion of C&D wood.\13\
Despite the variety of options, the Agency finds certain practices are
essential to ensure processing of the C&D debris produces a legitimate
product fuel. These practices, described in the proposal as best
management practices, have been adopted in this final rule with minor
changes and are discussed later in section V.A.3. of this preamble. In
addition to excluding or removing a set list of C&D materials known to
contain contaminants (e.g., certain types of treated wood), processors
must take steps to eliminate less obvious contaminant sources (e.g.,
lead-based paint). Consequently, the standards proposed and finalized
in this document, ensure that the contaminants in the fuel that is
burned will not be unpredictable, even though the sources of the wood
may vary.
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\13\ This final rulemaking does not change or replace existing
state requirements regarding C&D wood. See section VIII. State
Authority A. Relationship to State Programs of this preamble.
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2. C&D Wood Under Current NHSM Rules
a. March 21, 2011 and February 2013 Final Rules
In both the March 21, 2011 and February 7, 2013 NHSM final rules,
EPA discussed two scenarios under which the Agency would consider C&D
wood to be a non-waste fuel.\14\ First, ``clean'' C&D wood can be
burned as a traditional fuel without any requirement for testing or
recordkeeping--because it is a ``clean cellulosic biomass'' material
indistinguishable in composition from virgin wood.\15\ Second, wood
recovered from C&D debris (i.e., contaminated wood) can be sufficiently
processed to meet the legitimacy criteria and, thus, would be a non-
waste fuel, although combustion facilities burning the material would
need to keep records documenting the material's non-waste status.
Records would need to document not only how the processing operations
meet the definition of processing in 40 CFR 241.2, but also how the
product fuel meets the NHSM legitimacy criteria in 40 CFR
241.3(d)(1).16 17
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\14\ 76 FR 15485, March 21, 2011 and 78 FR 9138, February 7,
2013.
\15\ In the February 7, 2013 final rule (78 FR 9139), the Agency
emphasized that, ``determinations that the cellulosic biomass used
as a fuel or ingredient is clean, do not presuppose any testing of
contaminant levels. Persons can use expert or process knowledge of
the material to justify decisions regarding presence of
contaminants.''
\16\ Recordkeeping requirements for area source boilers are
found at 40 CFR 63.11225(c)(2)(ii), while recordkeeping requirements
for major source boilers are found at 40 CFR 63.7555(d)(2).
\17\ While the combustor would be responsible for maintaining
the records that such NHSM met the legitimacy criteria, the
combustor could request that the person that generated the C&D wood
provide documentation that the processing operations meet the
definition of processing, as well as the legitimacy criteria,
especially the contaminant legitimacy criterion.
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b. December 2011 Proposed Rule
Although the December 2011 NHSM proposed rule did not discuss or
solicit comments on processed C&D wood, a number of commenters
submitted comments arguing processed C&D wood (i.e., recovered from
demolition activities) should be categorically listed as a non-waste
fuel under 40 CFR 241.4(a), or otherwise a non-waste.\18\ The
commenters' rationale for listing processed C&D wood as a non-waste is
as follows.
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\18\ Comments submitted on the December 23, 2011 proposed rule
are included in docket: EPA-HQ-RCRA-2008-0329. Specifically, see the
document ID#'s ending in -1902, -1910, -1950, -1930, -1928, -1946, -
1957, -1927, -1893, and -1905.
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It is utilized in combination with other biomass materials
to optimize and manage combustion in boilers due to its low moisture/
high heat characteristics.
It is sufficiently processed to remove impurities.
From a practical materials management standpoint, C&D
materials are not discarded; collection of most of these materials is
planned for, with C&D recycle sorting and processing yards receiving
the materials as a destination and the point of generation of the fuel
product.
Commenters detail the processing and test data available
for C&D materials, which demonstrates their value as a fuel.
Commenters noted the EPA has already included clean C&D
materials in their proposed clean cellulosic biomass definition for
traditional fuels, but EPA elsewhere identifies C&D materials that are
not clean as subject to the legitimacy criteria.
The commenters argued, therefore, the EPA should remove doubt and
list these materials in the newly proposed 40 CFR 241.4(a) as a non-
waste fuel given both their demonstrated fuel value and the industry
that has been established for recycling these NHSMs into useful product
fuel.
Expanding further on these comments, several trade organizations
submitted information in support of a categorical non-waste
determination that would list processed C&D wood as a product fuel when
burned in combustion units. The information suggested that a non-waste
listing include all C&D wood processed in accordance with industry
practices proven to produce a wood product meeting the NHSM legitimacy
criteria. The commenters identified ``proven practices'' as the sorting
(both mechanical and manual) of C&D material to separate the following
contaminants: Non-wood material, wood treated with pentachlorophenol,
chromated copper arsenic (CCA) treated wood, or other copper, chromium
or arsenical preservatives, and lead (through the separation of either
lead-painted wood or fines or through other means as specified in
applicable state law). Commenters also compiled a dataset of
contaminant concentrations in processed C&D wood from nine combustion
facilities in seven states to demonstrate the efficacy of the
identified practices.
Case-by-case analysis is not necessary, the trade organizations
contended, to ensure sufficient processing occurs and that C&D wood
products--produced by different processors using different sorting
techniques--are consistently managed as a valuable commodity, have
meaningful heating values, and contain contaminants at levels
comparable to or lower than traditional fuels. Instead, they argued
persons burning C&D wood for energy recovery only need to certify the
processed C&D wood came from a facility using the aforementioned
sorting practices.
Other commenters on the December 2011 NHSM proposed rule asserted
that
[[Page 6694]]
C&D wood should be regulated as a solid waste because they view it as
having been discarded similar to scrap tires. Another commenter
requested the EPA require testing for contamination based on what they
described as highly unpredictable contaminant levels. The commenter
referenced specific combustion facilities that accepted C&D wood,
including lead-painted wood and CCA-treated wood, as well as plastics
and foreign debris to support a requirement for testing. In addition,
the same commenter argued that C&D wood should only be compared to
clean untreated wood when conducting a contaminant comparison, not
necessarily what the unit is designed to burn.\19\ The Agency's
decision on this final rule considers the issues raised in these
comments on the December 2011 proposed rule. Responses to the issues
raised in these comments are included in section V.A.6. of this
preamble.
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\19\ Comments submitted on the December 23, 2011 proposed rule
(76 FR 80452) are included in docket: EPA-HQ-RCRA-2008-0329.
Specifically, see the document ID numbers ending in -1959 and -1974.
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3. Scope of the Proposed Rule and Final Categorical Non-Waste Listing
for C&D Wood
Based on information in the record, including comments submitted
before proposal, the Agency proposed the categorical non-waste listing
for wood recovered from C&D debris which has been processed according
to best management practices to remove certain contaminants, as a
categorical non-waste in 40 CFR 241.4(a). Under the proposed rule,
combustors of C&D wood must obtain a written certification from C&D
processing facilities that the C&D wood has been processed by trained
operators in accordance with best management practices.\20\ Such
practices include sorting by trained operators that excludes or removes
non-wood materials (e.g., polyvinyl chloride and other plastics,
drywall, concrete, aggregates, dirt, and asbestos), and wood treated
with creosote,\21\ pentachlorophenol, chromated copper arsenate, or
other copper, chromium, or arsenical preservatives. In addition, C&D
processing facilities that use positive sorting (where operators pick
out desirable wood from co-mingled debris) must either exclude all
painted wood from the final product fuel, use X-ray Fluorescence to
ensure that painted wood included in the final product fuel does not
contain lead-based paint, or require documentation that a building has
been tested for and does not include lead-based paint before accepting
demolition debris from that building.
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\20\ If the processed C&D wood does not meet the categorical
listing, the wood may still be considered a non-waste fuel (on a
case-by-case basis), although any combustor that burns such
processed C&D wood would need to keep records documenting the
materials non-waste status pursuant to 40 CFR 63.11225(c)(2)(ii) and
40 CFR 63.7555(d)(2).
\21\ Although industry trade groups did not list creosote
treated wood as wood that is excluded or removed, they provided
information indicating that C&D debris can include creosote treated
wood. Based upon the contaminants present in creosote treated wood
and the types of boilers that burn C&D wood (i.e., those that are
designed to burn clean wood and biomass), operators must exclude or
remove creosote treated wood. With respect to creosote and as
discussed later in section V.C of this preamble, the Agency
evaluated data provided for creosote-treated railway ties and
determined that boiler design was an integral factor in satisfying
the contaminant legitimacy criterion.
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C&D processing facilities that use negative sorting (where
operators remove contaminated or otherwise undesirable materials from
co-mingled debris) must remove fines, i.e., small-sized particles that
may contain relatively high concentrations of lead and other
contaminants, and either remove painted wood, use X-ray Fluorescence to
detect and remove lead-painted wood, or require documentation that a
building has been tested for and does not include lead-based paint
before accepting demolition debris from that building.
This rule finalizes the criteria and requirements discussed in the
proposal for reasons explained in the proposal, with three changes to
the regulatory language for lead elimination requirements for both
positive and negative sorting facilities, two changes to the definition
of C&D wood, and the addition of new language for the processor's
written certification and training requirements. The changes and
additions were made in response to comments received and based on other
supporting information in the record and to provide clarity to the best
management practice requirements, as well as the definition of C&D
wood. The rationale for the changes and additions that have been made
in the final rule are explained below in this section. The general
rationale for the final listing is provided in the next section V.A.4.
of this preamble.
Lead Elimination Requirements. One of the changes between the
proposed rule and final rule concerns the lead elimination requirements
for positive sorting processors. The lead exclusion language for
positive sorting processors proposed at 40 CFR 241.4(a)(5)(i) did not
specifically provide that facilities receiving pre-sorted wood from
positive sorting entities who may need to remove small amounts of
unwanted material prior to chipping and grinding the wood are also
considered positive sorting facilities. Because these facilities remove
some materials, they could be considered negative sorters.
The proposed regulatory language resulted from a presumed scenario
in which C&D debris was sent to a single, centralized processing
facility. However, there are other processors who receive segregated or
pre-sorted C&D wood from small generators.\22\ These small generators
(e.g., contractors, community collections, citizen drop-off locations,
and transfer stations) segregate and collect clean C&D wood using
positive sorting and provide the recovered C&D wood to ``chip and
grind'' processors. The chip and grind processors then conduct
additional sorting, using negative sorting techniques, to remove small
amounts of unwanted materials from the shipment prior to processing.
These processors should not be considered negative sorters.
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\22\ See comments and data submitted by Covanta (EPA -HQ-RCRA-
2013-0110-0084), comments from American Reclamation Inc. (EPA-HQ-
RCRA-2013-0110-0073), and comments from Genesee Power Station (GPS)
(EPA-HQ-RCRA-2013-0110-0091).
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Recall that negative sorters are required to remove fines to ensure
lead concentrations in the product fuel are comparable to or lower than
wood or biomass. Positive sorters, however, are not required to remove
fines because only the desirable wood is picked from the C&D debris.
Thus, to require a ``chip and grind'' processing operation that has
received positive sorted C&D wood to remove fines when there are none
present is unnecessary. Therefore, the language for positive sorting
has been revised to include processors that receive pre-sorted wood
from positive sorting entities. This revision clarifies that these
processors are not negative sorters for purposes of identifying which
lead requirements are applicable. Specifically, the final language at
40 CFR 241.4(a)(5)(i) includes new text (see italic print) to capture
these facilities: ``C&D processing facilities that use positive
sorting--where operators pick out desirable wood from co-mingled
debris--or that receive and process positive sorted C&D wood must
either . . .''
Another change was made to the lead elimination requirements, but
for negative sorters. The term ``all'' was added to the options for
removing painted wood under 40 CFR 241.4(a)(5)(ii)(A). This requirement
is now consistent with the corresponding requirement for positive
sorting facilities and emphasizes that if processors choose this
particular lead elimination option, then any painted
[[Page 6695]]
wood received must be removed (or excluded in the case of positive
sorting facilities). The purpose of this change is to ensure all
painted wood, regardless of sorting practices, is eliminated from the
final product if the processor chooses this lead elimination strategy.
While it is expected that processors will make every effort to remove
or exclude all painted wood under this option, de minimis amounts could
be present and still render the resultant material a product fuel. The
final regulatory language adds new text to 40 CFR 241.4(a)(5)(ii)(A),
and now states ``[r]emove all painted wood.''
The third change that has been made applies to both positive and
negative sorters. As stated in the previous paragraph, the term ``all''
has been added to the negative sorting requirements for consistency and
to reaffirm that this particular option is intended to be a stringent
standard. However, to provide additional clarity regarding the Agency's
position on de minimis amounts, we have added the following language as
a parenthetical to both 40 CFR 241.4(a)(5)(i)(A) and (ii)(A): ``(to the
extent that only de minimis quantities inherent to processing
limitations may remain)''.
Definition of C&D wood. Two revisions to the definition of C&D wood
(40 CFR 241.2) have been made. One revision is to include disaster
debris and the second revision is to broaden what the Agency considers
to be wood recovered from construction activities.
In the proposed rule, the Agency noted clean wood in disaster
debris had been included in the definition for ``clean cellulosic
biomass'' in a prior rulemaking, but had not addressed clean wood from
disaster debris mixed with contaminated materials (e.g., lead-based
painted wood, CCA treated wood, asbestos containing materials, utility
poles, etc.) and sent for processing without any prior sorting. Also
noted in the proposal, and of particular concern to the Agency, was
that management of disaster debris is more expedited and less
controlled and thus, prone to include contaminants that might otherwise
be sorted out prior to processing.\23\ Therefore, the Agency solicited
comment on whether disaster debris should be included in the definition
of C&D wood despite some concerns related to processing large volumes
of material expeditiously.
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\23\ Management of disaster debris can involve significantly
greater volumes. For example, prior to the 1994 Northridge
earthquake in Los Angeles, one local company processed 150 tons of
C&D debris per day. After the earthquake, the city picked up as much
as 10,000 tons of C&D debris per day.
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The Agency finds that these concerns regarding the management of
large volumes of material in an expeditious nature would only be
relevant if the best management practices as finalized in this rule are
not used to process wood from natural disaster debris. The Agency finds
that the best management practices set forth in this rule are
sufficient to ensure natural disaster debris is handled and processed
in the same manner as other C&D debris, regardless of the source or
quantity of material to be processed. In other words, processors that
comply with the best management practices for this listing would not be
altering the way in which they process the debris. Should a processor
choose to hire and train additional sorters or extend operational hours
to process higher volumes, the limiting factors in this rule that will
continue to ensure the quality of the processed material are the best
management practices and the training and certification requirements.
Furthermore, the information provided to the Agency discusses that when
the incoming material exceeds processing capacity, the excess material
is stored or sent to a landfill.\24\ Given the best management
practices and information indicating the typical handling of excess
material, the Agency has determined it is appropriate to include
disaster debris in the definition of C&D wood. Thus, clean wood from
natural disaster debris mixed with other materials and delivered to a
processing facility has been added to the definition of C&D wood.
However, the natural disaster debris must be processed in the same
manner as C&D wood recovered from C&D activities to qualify for this
categorical non-waste listing. The last sentence of the definition for
C&D wood at 40 CFR 241.2 has been revised to add text for natural
disasters and now reads: ``C&D wood from demolition activities results
from dismantling buildings and other structures, removing materials
during renovation, or from natural disasters.''
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\24\ See comments from American Forest & Paper Association (EPA-
HQ-RCRA-2013-0110-0076) and Waste Management (EPA-HQ-RCRA-2013-0110-
0094.
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The second revision made to the definition of C&D wood is to
broaden the description of C&D wood generated from construction
activities. As proposed, commenters interpreted it to be limited in
scope because it did not capture the many sources of wood generated
from construction activities, particularly for installation activities.
The wording in the second sentence of the proposed definition for C&D
wood at 40 CFR 241.2 read: ``C&D wood from construction activities
results from cutting wood down to size during installation or from
purchasing more wood than a project ultimately requires.'' A commenter
suggested listing additional types of installation activities
associated with construction such as incorrectly cut wood, wood forms,
support braces, stakes, etc. Rather than trying to provide an
exhaustive list, which may not include every possible type of
installation activity, the Agency has decided to revise the language to
capture any type of installation activity that can generate
construction wood debris. The second sentence of the definition now
reads ``C&D wood from construction activities results from wood
generated during any installation activity or from purchasing more wood
than a project ultimately requires.'' The change acknowledges there are
several ways installation activities can generate wood without limiting
those activities.
Training and certification. Two regulatory additions have been made
based on concepts that had been discussed in the proposed rule
preamble. One addition is a requirement for C&D processors to train
their operators. The approach taken in the proposal was to not include
a specific training requirement for processors, but to rely on a
written certification as a means for processors to show they had used
``trained'' operators (79 FR 21026). However, the Agency finds this
approach does not provide any assurance that the processor is
conducting the necessary training in order to ensure that the resultant
material is not discarded when combusted and is, therefore, not waste.
Although the written certification statement, as proposed (and
finalized in this rule), must state the processed C&D wood has been
sorted by ``trained'' operators in accordance with best management
practices, it did not require any evidence that training has taken
place, nor did it hold the processor accountable to their customers.
Thus, a mechanism is necessary to document when the training has been
conducted so that processors are accountable when certifying they have
used trained operators. This mechanism is implemented via new
regulatory language at 40 CFR 241.4(a)(5)(iii) which states
``[p]rocessors must train operators to exclude or remove the materials
as listed in paragraph (a)(5) of this section from the final product
fuel. Records of training must include dates of training held and must
be maintained for a period of three years.'' The training requirement
serves as an additional
[[Page 6696]]
condition of this categorical non-waste listing. For further
discussion, see section V.A.5 of this preamble.
The second regulatory addition is to specify the written
certification requirements. As discussed in the proposal, to ensure the
C&D wood is processed according to best management practices, it is
important for the processor to certify they are meeting such best
management practices using trained operators (79 FR 21013). The Agency
has determined a written certification from the processor is a
necessary mechanism for ensuring best management practices have been
used and for indicating that the processor has used trained operators.
The Agency recognizes contracts and purchase agreements can indicate a
commitment to quality, but also specifications can vary according to
the needs of one combustor versus another. More importantly, the
contracts and purchase agreements that the Agency has seen do not show
that C&D wood has been processed according to any particular best
management practices, and consequently, cannot ensure that the
resulting material is not a waste when combusted. Therefore, the
written certification is finalized at 40 CFR 241.4(a)(5)(iv) and states
``[a] written certification must be obtained by the combustor for every
new or modified contract, purchase agreement, or other legally binding
document, from each final processor of C&D wood and must include the
statement: the processed C&D wood has been sorted by trained operators
in accordance with best management practices.'' This certification will
assist the combustor's determination that the C&D wood has been
sufficiently processed to meet the conditions of this categorical non-
waste listing. Refer to the section V.A.5 of this preamble for
additional background.
4. Rationale for Final Rule
This section discusses the reasoning provided in the proposed rule
and the reasons for the EPA's final determinations for the categorical
listing of C&D wood. EPA adopts the reasoning in the proposed rule and
further explains it in this preamble. Further explanations for the
Agency's decision are provided in the Response to Comments below. The
proposal, this section, and the Response to Comments all constitute the
Agency's final determination supporting this rule.
a. Discard
When deciding whether an NHSM should be listed as a categorical
non-waste fuel in accordance with 40 CFR 241.4(b)(5), the Agency first
evaluates whether or not the NHSM has been discarded in the first
instance and, if not so discarded, whether or not the material could be
considered discarded because it is not legitimately used as a product
fuel in a combustion unit. Based on the rulemaking record, as discussed
below, the Agency has determined C&D wood is not discarded when: It is
processed in accordance with best management practices described
herein; it is legitimately used as a product fuel in a combustion unit;
and when combustors of C&D wood have obtained a written certification
from C&D processing facilities that the C&D wood has been processed by
trained operators.
i. Processing of C&D Wood
In the April 14, 2014 proposed rule (79 FR 21012), the Agency
reiterated the determination in the existing rules that the wood
present in C&D debris is considered to be a solid waste prior to
processing and that persons must transform the debris into a legitimate
product fuel in order to burn the material as a non-waste fuel.\25\ In
accordance with 40 CFR 241.2, processing must include operations that
transform discarded NHSM into a non-waste fuel or non-waste ingredient,
including operations necessary to: Remove or destroy contaminants;
significantly improve the fuel characteristics (e.g., sizing or drying
of the material, in combination with other operations); chemically
improve the as-fired energy content; or improve the ingredient
characteristics. Minimal operations that result only in modifying the
size of the material by shredding do not constitute processing for the
purposes of the definition.
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\25\ This rulemaking does not change the waste status of C&D
wood prior to processing, up to which point the material would
likely be a solid waste subject to appropriate federal, state, and
local requirements unless it meets the definition of ``clean
cellulosic biomass.''
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Compared to mixed C&D debris, processed C&D wood will have
significantly fewer contaminants and improved fuel characteristics.
Specifically, the removal or exclusion of specified materials, such as
creosote-treated wood (PAHs, dibenzofuran), pentachlorophenol-treated
wood (pentachlorophenol, dioxins), CCA-treated wood (chromium,
arsenic), other copper, chromium, and arsenical treated wood, plastics
(chlorine), drywall (sulfur), lead-based paint (lead), as well as
insulation and other materials containing asbestos,\26\ will result in
significant contaminant removal. In addition, the removal of concrete,
aggregates, dirt, and other non-combustible material will significantly
increase the material's energy value. Finally, grinding all remaining
wood to a specified size will allow combustors to transport, store, and
use processed C&D wood in the same manner as virgin wood and biomass
materials.
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\26\ CAA regulations provide additional safeguards to ensure
asbestos is removed from buildings prior to demolition. Part 61,
subpart M (40 CFR 61.145) requires that owners or operators of a
demolition or renovation activity to inspect the affected building
for the presence of asbestos prior to demolition or renovation and
notify the Administrator. EPA notes, however, that the 40 CFR 61.141
definition of ``facility'' explicitly excludes ``residential
buildings having four or fewer dwelling units'' thus, small
residential buildings that are demolished or renovated are not
covered by the Federal asbestos NESHAP regardless of whether the
demolition or renovation is performed by agents of the owner of the
property or whether the demolition or renovation is performed by
agents of the municipality. See also the ``Asbestos NESHAP
Clarification of Intent'' (60 FR 38725; July 28, 1995).
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For incoming C&D debris, processing facilities can use a variety of
techniques to exclude or remove debris unsuitable for a product fuel.
Typically, processors use some combination of source control,
inspection, sorting, screening, and grinding to meet the specifications
identified by their customers (i.e., combustion facilities). The nature
of the incoming C&D debris, the extent of material segregation prior to
arrival at the processing facility, whether positive or negative
sorting is employed, and the scale of the processing facility (e.g.,
the degree of sorting and number of screening devices) help determine
which combination of practices will be most effective. The Agency has
determined that the best management practices, when performed by
trained operators, addresses the variability within the industry such
that C&D processing facilities will produce a non-waste product with
contaminants that are no greater than clean wood and biomass,
regardless of the characteristics that can influence the level of
contaminants in the C&D wood. Thus, the Agency finds such processing
meets the definition of processing in 40 CFR 241.2.
ii. Certification
Further, to ensure the C&D wood is processed according to best
management practices, the Agency had proposed to require processors to
certify they are meeting such best management practices using trained
operators. This requirement has been finalized in this rule for the
reasons discussed earlier in section V.A.3. of this preamble.
Combustors must obtain a written certification for every new or
modified contract, purchase agreement, or other legally binding
document, from each
[[Page 6697]]
final processor of C&D wood. The written certification must include the
statement: The processed C&D wood has been sorted by trained operators
in accordance with best management practices. Combustors have the
ultimate responsibility to determine the C&D wood has been sufficiently
processed.
The Agency has determined that, when C&D wood is processed
according to the best management practices, it will have significantly
fewer contaminants and improved fuel characteristics. The best
management practices ensure the contaminants in the fuel that is burned
will not be unpredictable, regardless of the type or number of
processing techniques used. Thus, this rule finalizes the best
management practices, with some minor changes from the proposed
regulatory language as discussed previously in section V.A.3. of this
preamble.
b. Legitimacy Criteria
In determining whether to list processed C&D wood as a categorical
non-waste fuel in 40 CFR 241.4(a), the Agency evaluated the legitimacy
criteria in 40 CFR 241.3(d)(1)--that is, whether it is managed as a
valuable commodity, whether it has a meaningful heating value and is
used as a fuel in a combustion unit to recover energy, and whether
contaminants or groups of contaminants are at levels comparable to or
less than those in the traditional fuel the unit is designed to burn.
To the extent that processed C&D wood does not meet one or more of the
legitimacy criteria, the Agency has considered other relevant factors
in determining to list C&D wood as a categorical non-waste fuel in 40
CFR 241.4(b)(5)(ii) (see discussion on formaldehyde below).
i. Managed as a Valuable Commodity
Regarding the first legitimacy criterion, the information in the
record in support of the proposal and this final rule demonstrates that
both processors and combustors manage processed C&D wood as a valuable
commodity. Specifically, after processing, including grinding to size,
processors ship the material to energy recovery facilities in covered
chip vans or semi-trailers. The material is then stored on-site at the
combustion facilities in wood fuel storage yards and generally used
within 90 days of delivery.\27\ Because storage does not exceed
reasonable time frames, and management is similar to that of virgin
wood and biomass, the Agency has determined that processed C&D wood
meets this legitimacy criterion.
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\27\ See December 7, 2012 letter from Susan Bodine to Suzanne
Rudzinski, page 3. EPA-HQ-RCRA-2008-0329-2009.
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ii. Meaningful Heating Value and Used as a Fuel To Recover Energy
With respect to the second legitimacy criterion, the record shows
that processed C&D wood has a meaningful heating value and is used as a
fuel to recover energy. Specifically, information in the rulemaking
record demonstrates that processed C&D wood has an average as-fired
energy content of 6,640 Btu/lb,\28\ which is greater than 5,000 Btu/lb,
which the Agency considers to have a meaningful heating value (see 76
FR 15541, March 21, 2011). This also compares favorably to information
compiled by the Agency in 2011, in which 95 samples of unadulterated
timber burned by major source boilers\29\ across the country exhibited
an average as-fired energy content of 5,150 Btu/lb.\30\ According to
C&D trade organizations, energy recovery facilities purchase processed
C&D wood and burn the material as fuel to generate electricity. Thus,
the Agency has determined that processed C&D wood meets this legitimacy
criterion.
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\28\ Appendix A of April 25, 2013, submittal from Susan Bodine
on behalf of BPA and CMRA, available in the Docket at EPA-HQ-RCRA-
2013-0110.
\29\ Major sources are
\30\ USEPA, Office of Air Quality Planning and Standards,
Emissions Database for Boilers and Process Heaters Containing Stack
Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and
ICR No. 2286.03 (Version 6). EPA Docket/Document Number EPA-HQ-OAR-
2002-0058-3255. February 2011.
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iii. Contaminants Comparable to or Lower Than Traditional Fuels
For the third legitimacy criterion, C&D trade organizations
provided the Agency with contaminant analyses of more than 220 samples
of processed C&D wood from nine combustion facilities in California,
Maine, Massachusetts, Minnesota, New York, the state of Washington, and
Wisconsin in support of the proposed categorical listing for processed
C&D wood. The Agency compared the contaminant levels found in the
processed C&D wood to the contaminant levels found in clean wood and
biomass materials since any unit burning processed C&D wood can clearly
burn clean wood and biomass materials as well.\31\
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\31\ In response to the proposal, EPA did receive data showing a
contaminant comparison to coke and coal. However, the data was
specific to cement kilns and cannot be considered to be
representative for all unit types that combust processed C&D wood
(i.e., some boilers cannot burn coal depending upon feed systems or
boiler design type) and therefore, was not analyzed for this final
rule. A case-by-case comparison, however, can be made using
traditional fuels such as coke and coal if the combustion unit is
designed to burn these materials and if the concentrations of
contaminants are found to be comparable to or less than those
present in C&D wood, then the contaminant criterion would be met.
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As first presented in the April 14, 2014 proposed rule (79 FR
21013-14), summary results for the contaminant comparisons are provided
in Table 1 of this preamble, with the contaminants most likely to be
present in unprocessed C&D debris listed first. The Agency finds that
they support the final determination that processed C&D wood meets the
contaminant legitimacy criterion, with the appropriate qualifications
as noted below.
Specifically, arsenic and chromium are present due to CCA-treated
wood; lead due to lead-based paint chips; mercury due to light bulbs,
ballasts, thermostats and other mercury-containing devices present in
buildings; chlorine due to PVC and other plastics; sulfur due to
plaster or drywall containing gypsum, a sulfate mineral; formaldehyde
due to resinated wood; and pentachlorophenol due to utility poles and
other treated wood products currently accepted by some combustion
facilities. Although sources of fluorine in C&D debris are less clear,
the contaminant's presence may be due to its use in flame retardants
incorporated into carpet, furniture, and other building materials.
Table 1--Comparison of Contaminants in Clean Wood/Biomass and Processed C&D Wood \32\ \33\ \34\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Clean Wood/Biomass Processed C&D Wood
Contaminant ----------------------------------------------------------------------------------------------------------------
Range # samples Average 90% UPL Maximum
--------------------------------------------------------------------------------------------------------------------------------------------------------
Contaminants Most Likely To Be Present in C&D Debris
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arsenic................................ ND--298...................... n = 221..................... 35.9 91.8 261
[[Page 6698]]
Chromium............................... ND--340...................... n = 212..................... 45.0 116 283
Lead................................... ND--340...................... n = 224..................... 53.9 136 482
Mercury................................ ND--1.1...................... n = 180..................... 0.1 0.16 0.7
Chlorine............................... ND--5400..................... n = 173..................... 809 1,567 3,521
Fluorine............................... ND--300...................... n = 86...................... 45.9 139 313
Sulfur................................. ND--8700..................... n = 183..................... 1,300 2,200 7,300
Formaldehyde........................... 1.6--27...................... n = 45...................... 47.6 104.2 176.8
Pentachlorophenol...................... ND........................... n = 21...................... 19.7 N/A 126
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Contaminants Less Likely To Be Present in C&D Debris
--------------------------------------------------------------------------------------------------------------------------------------------------------
Antimony............................... ND--26....................... n = 50...................... 2.6 7.1 16.6
Beryllium.............................. ND--10....................... n = 50...................... 0.1 0.23 0.3
Cadmium................................ ND--17....................... n = 107..................... 0.3 0.53 1.3
Cobalt................................. ND--213...................... n = 50...................... 1.1 2.1 3.5
Manganese.............................. ND--15800.................... n = 50...................... 78.8 115 180
Nickel................................. ND--540...................... n = 50...................... 4.0 8.6 27.4
Selenium............................... ND--9........................ n = 43...................... 0.4 1.0 1.3
Nitrogen............................... 200--39500................... n = 75...................... 3,900 8,000 12,600
--------------------------------------------------------------------------------------------------------------------------------------------------------
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\32\ Sources: Clean Wood/Biomass ranges taken from a combination
of EPA data and literature sources, as presented in EPA document
Contaminant Concentrations in Traditional Fuels: Tables for
Comparison, November 29, 2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm. Processed C&D Wood data from April 26,
2013, submittal by Susan Bodine on behalf of BPA and CMRA, available
in the Docket at EPA-HQ-RCRA-2013-0110.
\33\ All units expressed in parts per million (ppm) on a dry
weight basis.
\34\ Upper Prediction Limit (UPL) calculations were made by
commenters using EPA's ProUCL software, using either a lognormal
distribution or nonparametric statistics, as appropriate.
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With the exception of four contaminants--fluorine, lead,
formaldehyde and pentachlorophenol, every sample of processed C&D
wood's contaminant levels was well within the range of clean wood and
biomass materials. With respect to these four contaminants:
Fluorine: This contaminant was first discussed in the
proposal at 79 FR 21014. While only one sample out of 45 samples of
processed C&D wood exceed the range for fluorine in clean wood and
biomass, the Agency still considers fluorine to be at levels comparable
to those found in clean wood and biomass since this lone sample is
present within a small acceptable range (i.e., 313 ppm is comparable to
300 ppm).35 36 Thus, the final rule does not include
controls specific to fluorine.
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\35\ 76 FR 15523-24, March 21, 2011.
\36\ In addition to determining that the one sample of fluorine
is within a small acceptable range, one can consider that the Upper
Prediction Limit (UPL) for fluorine in processed C&D wood, when
calculated at a 90 percent confidence level based on all 45 samples
(139 ppm), is well within the range of clean wood and biomass
materials. The UPL taken at a 90 percent confidence level yields a
number (i.e., 139 ppm), and in the context of analyzing contaminant
samples, persons can be confident that the next sample taken will be
at or below that number 90 percent of the time.
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Lead: As first discussed in the proposal at 79 FR 21014-
15, April 14, 2014, despite efforts by C&D processing facilities to
remove lead, the data demonstrate that some processing facilities do a
better job than others, with isolated samples from Massachusetts
reaching 407 and 437 ppm lead, and one of seven samples from Wisconsin
reaching 482 ppm lead. While most of the 224 samples detected lead
within the range found in clean wood and biomass materials (ND-340
ppm), it is important to recognize that each high sample could
represent a large amount of processed C&D wood produced by an outlier
facility. Accordingly, an overly broad categorical non-waste listing
could include processed C&D wood from facilities where the final
product consistently contains high lead levels, amounts that would not
be considered a normal part of clean wood or biomass. In this instance,
one facility in Massachusetts provided a composite sample for each of
seven days, and two out the seven samples exceeded the range of lead
values found in clean wood and biomass. That could mean more than 28
percent of the processed C&D wood produced by that facility exceeds
lead levels found in clean wood and biomass.
C&D processing facilities have options for eliminating lead in the
processed C&D wood they produce, and information submitted with the
contaminant dataset shows that the two facilities (one in
Massachusetts, the other in Wisconsin) exhibiting the highest lead
levels shared similar lead elimination strategies. Although both
facilities accept painted wood, neither uses X-ray Fluorescence (XRF)
analyzers to detect and remove lead-based painted wood. Nor do they
require documentation of a building inspection that includes testing
for lead-based paint. By comparison, the Washington facility included
in the dataset requires documentation of XRF testing before accepting
demolition debris from a particular building, and as evidenced by a
maximum lead concentration of 26 ppm, lead concentrations in the
processed C&D wood it burns tested lower than for any other facility in
the dataset. The Minnesota facility included in the dataset does not
accept painted wood, and as evidenced by a maximum lead concentration
of 110 ppm, lead concentrations in the processed C&D wood it burns are
also well within the range of clean wood and biomass materials.
Both the Massachusetts facility and the Wisconsin facility relied
solely on removing ``fines'' to control lead levels. Fines are small-
sized particles that may contain relatively high concentrations of
contaminants, and facilities can remove them before and after shredding
via screens or flotation. The Agency does not dispute that the removal
of fine particles can reduce the levels of lead and other contaminants,
particularly for C&D processing facilities using negative sorting.
Without additional measures, however, this strategy does not remove
sufficient lead to transform the C&D
[[Page 6699]]
debris into a product fuel in all cases that would warrant processed
C&D wood being categorically listed as a non-waste fuel. Thus, the
Agency had proposed conditions related to lead elimination as part of
the categorical non-waste listing for processed C&D wood. The proposed
conditions were:
--Facilities using positive sorting must either: (1) Exclude painted
wood via the sorting process by selecting only unpainted wood from
incoming C&D debris for further processing, (2) use XRF to ensure that
painted wood included in the final product fuel does not contain lead-
based paint, or (3) require documentation that a building has been
tested for and does not include lead-based paint before accepting
demolition debris from that building.
--Facilities using negative sorting must remove fine particles, which
may include asbestos fibers and other contaminants in addition to lead,
and they must also either: (1) Remove painted wood via the sorting
process, (2) use XRF to detect and remove lead-painted wood, or (3)
require documentation that a building has been tested for and does not
include lead-based paint before accepting demolition debris from that
building.
No additional data were received in response to the proposed
measures to eliminate lead that warrant removal of the conditions or
their options for the final listing. However, as discussed earlier in
section V.A.3. of this preamble, three changes have been made to the
proposed regulatory language: (1) Positive sorting has been revised to
include processors that receive pre-sorted wood from positive sorting
entities to clarify that these processors are not negative sorters for
purposes of identifying which lead elimination requirements are
applicable; (2) the word ``all'' has been added to clarify that both
positive and negative sorters must exclude or remove all painted wood
from incoming debris; and (3) the parenthetical language: ``to the
extent that only de minimis quantities inherent to processing
limitations may remain'' has been added to both 40 CFR
241.4(a)(5)(i)(A) and (ii)(A) to reflect the Agency's position on de
minimis amounts.
Based on all information regarding the presence of lead in
processed C&D wood, the Agency has determined that the proposed
conditions are necessary to ensure that lead levels in processed C&D
wood are comparable to or lower than lead levels present in clean wood
and biomass. Consistent with the proposal, the Agency has finalized
conditions designed to eliminate lead, with the minor changes as noted
above. See the final regulatory language at 40 CFR 241.4(a)(5)(i) and
(ii).
Pentachlorophenol: The following was first discussed in
the proposal at 79 FR 21015. The presence of pentachlorophenol in some
processed C&D wood results from processors either choosing to include
industrial wood products treated with pentachlorophenol in their
product fuel (in the case of positive sorting) or from processors not
removing those same industrial wood products from C&D debris (in the
case of negative sorting) prior to the final grinding step. The EPA
restricted the use and sale of pentachlorophenol in 1987, with no
registered residential uses allowed for the past 26 years. As stated in
the proposal, the Agency believed that the pentachlorophenol
concentrations in processed C&D wood were a direct result of easily
identified wood products, predominantly utility poles, that processing
facilities can choose to exclude or remove prior to grinding recovered
C&D wood.\37\ Therefore, under the proposed regulatory conditions,
processing facilities must exclude or remove these known sources of
pentachlorophenol from their final product fuel to qualify for the
categorical non-waste listing.
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\37\ Based on discussions with plant staff during an EPA tour of
Industrial Disposal Services, Inc. Broad Run Recycling facility in
Manassas, Virginia on May 23, 2013. The facility processes discarded
C&D wood into a product fuel.
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Information submitted in response to the proposed rule affirm that
the pentachlorophenol concentrations in processed C&D wood are a direct
result of easily identified wood products, predominantly utility poles,
that processing facilities can choose to exclude or remove prior to
grinding recovered C&D wood.\38\ Because sources of pentachlorophenol
can be readily identified by color and by shape of the treated wood, no
additional conditions other than those specified by the best management
practices are necessary. Thus, to ensure that pentachlorophenol levels
in processed C&D wood are comparable to or lower than clean wood and
biomass, the Agency is requiring that pentachlorophenol treated wood be
excluded or removed from incoming C&D debris. See 40 CFR 241.4(a)(5).
The Agency sees no reason to change the determination expressed in the
proposed rule and adopts it for the final rule.
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\38\ See comments from AF&PA (0076.1), DTE Energy Services
(0083.1), and NTH Consultants LTD for CMS Enterprises (0100) in
docket ID: EPA-HQ-RCRA-2013-0110.
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Formaldehyde: The proposal first discussed this
contaminant at 79 FR 21015, April 14, 2014. For C&D debris processed
pursuant to best management practices, inclusive of the regulatory
conditions presented in the proposal, formaldehyde (present in
concentrations as high as 176.8 ppm versus 27 ppm in clean wood/
biomass) is the only remaining contaminant that raised questions as to
whether it meets the contaminant legitimacy criterion. Again, the
Agency emphasizes that, although the situation appears similar to the
categorical non-waste listing for resinated wood in 40 CFR 241.4(a)(2),
details surrounding use of the two NHSMs as fuel are not the same. In
the case of resinated wood, as defined in 40 CFR 241.2, the Agency
determined that energy recovered from the combustion of manufacturing
process residues and off-specification resinated wood is integrally
tied to the industrial production process. The equivalent for C&D wood
would be sawmills reliant on recovering energy from sawdust and off-
specification lumber to power the construction lumber production
process. Sawmills may do this, but that is not the scenario commenters
have described in response to the December 23, 2011 (76 FR 80451)
proposed rule and for which the Agency has evaluated.
While EPA disagreed with petitioners' claims that resinated wood
components in C&D debris are categorical non-wastes and the corollary
that formaldehyde concentrations are therefore irrelevant, the Agency
agreed in the proposal that additional factors were worth considering
in determining whether to list processed C&D wood categorically as a
non-waste fuel. First, formaldehyde concentrations in processed C&D
wood may reach 176.8 ppm, but are lower than in pure resinated wood,
which may reach 200 ppm. National rules developed by the CARB Composite
Wood ATCM, per Public Law 111-199, will ensure that newly produced
resinated wood will contain even less formaldehyde in the future by
setting limits on how much formaldehyde may be released.\39\
[[Page 6700]]
Second and more importantly, for many combustors, processed C&D wood
scraps that include resinated wood components actually have added value
and are either selected for (in the case of positive sorting) or
specifically not removed (in the case of negative sorting) because the
wood has been kiln-dried prior to use in construction. Kiln-dried wood
has a greater heating value than virgin wood, almost double in some
cases. Kiln-dried wood also has more consistent moisture content; an
equally important benefit to combustors because a consistent fuel
improves combustion efficiency and leads to reduced emissions of
particulate matter, carbon monoxide, and other organic hazardous air
pollutants.
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\39\ On May 29, 2013, EPA proposed two rules to protect the
public from the risks associated with exposure to formaldehyde. 78
FR 34796, 78 FR 34820. The proposals would implement the
Formaldehyde Standards for Composite Wood Products Act (Title VI of
the Toxic Substances Control Act): One will implement the Act's
emission standards and the other will ensure products meet the TSCA
formaldehyde emission standards. See http://www.epa.gov/oppt/chemtest/formaldehyde/.
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The Agency has determined that the additional factors discussed in
the proposal are appropriate for determining whether the resinated wood
in certain limited circumstances is actually a product fuel. As a
result, in the final rule the Agency allows resinated wood to remain in
C&D wood prior to processing for this categorical non-waste listing.
This determination is based partially on the fact that future rules
will limit levels of formaldehyde in wood products and will, in effect,
also reduce the levels of formaldehyde in processed C&D wood.
Principally, the Agency's determination is based on information
submitted to the Agency showing that some processors choose to include
resinated wood in processed C&D wood based on combustor specifications
for a higher Btu value fuel, which demonstrates that resinated wood is
a valuable product fuel and is not burned for destruction. The Agency
maintains that the benefits of burning kiln-dried wood not only
provides higher heating value, but also more consistent moisture
content which lends to more efficient combustion and, thus, reduced
emissions of certain contaminants. The final rule, therefore, allows
processors to choose whether they will exclude or remove any resinated
wood and still be permitted to be within the categorical non-waste
listing for C&D debris.
This does not mean, however, that all resinated wood is considered
a non-waste fuel. The Agency has found that resinated wood is a non-
waste fuel in the furniture industry because of particular
circumstances in that industry, and in this case for C&D wood due to
the extraction of fuel value as a result of the kiln-dried properties
of that wood. In other circumstances, a case-by-case determination
would need to be made.
5. Summary of Comments Requested
The proposed rule identified several issues pertaining to the
listing of C&D wood as categorical non-wastes and requested comment on
those issues as follows.
Processing Techniques for lead and pentachlorophenol. The Agency
requested comment on the efficacy of specific processing techniques
related to lead, as well as the feasibility of reducing
pentachlorophenol concentrations in processed C&D wood by excluding or
removing utility poles and other industrial wood products known to be
treated with the chemical. See 79 FR 21015, April 14, 2014. Please
refer to section V.A.4.b.iii of this preamble for the Agency's final
determination and supporting rationale.
Formaldehyde levels. The Agency sought comment on the decision to
balance elevated formaldehyde levels with the greater heating value and
more consistent moisture content that resinated wood components lend to
processed C&D wood, rather than specifically requiring that resinated
wood be excluded or removed from C&D debris as part of the best
management practices. See 79 FR 21015-16. Please refer to section
V.A.4.b.iii of this preamble for the Agency's final determination and
supporting rationale.
CCA-treated wood. As proposed at 79 FR 21016, CCA-treated wood was
to be excluded or removed from C&D debris. Although the data submitted
to the Agency indicated that arsenic and chromium concentrations in
processed C&D wood are comparable to levels found in traditional fuels,
there was concern that because a majority of CCA-treated wood is still
in use, an increase in the amount of CCA-treated wood in C&D debris can
be expected in the future. Currently, CCA-treated wood can represent up
to 30 percent of the C&D wood waste stream.\40\ The concern was further
compounded by the reality that visual identification of CCA-treated
wood is at times very difficult, especially when the wood is weathered,
dirty, painted, or if the wood is characterized by low retention
levels.\41\
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\40\ Fattah, Hassan Abdel, et al. ``Online Sorting of Recovered
Wood Waste Using Automated X-Ray Technology'' Final Report; November
30, 2009. See p. 2. Available in EPA-HQ-RCRA-2013-0110.
\41\ Blassino, Monika, et al. ``Methods to control Fuel Quality
at Wood Burning Facilities.'' Available in EPA-HQ-RCRA-2013-0110-
0033.
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One pilot study conducted in the state of Florida showed that
visual sorting of CCA-treated wood at three different facilities
produced differing results of success. The two facilities with the
greatest success, which correctly identified 89 percent and 90 percent
of the pre-sorted wood as untreated wood, had provided extensive
training to its employees. The third facility correctly identified 60
percent as untreated wood, as evidenced by little or no training.
Given the variability in visually identifying untreated versus
treated wood, augmenting technologies have been developed to detect the
presence of arsenic, copper, and chromium, as well as other
contaminants. Studies have concluded that the use of stains (e.g., PAN
Indicator Stain \42\) and X-ray Florescence (XRF) technology are the
most promising technologies, with chemical stains being suitable for
sorting small quantities of wood and XRF technology being better suited
for sorting large quantities of wood.
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\42\ PAN stands for the chemical name of 1-(2-pyridylazo)-2-
naphthol, an orange-red solid with a molecular formula C15H11N3O. It
is used to determine the presence of almost all metals excluding
alkali metals. The stain is not specific to arsenic within CCA. It
reacts with the copper, so that wood treated with any copper-based
preservative will also test positive using this stain.
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Again, the Agency's concern was based on anticipated increases of
CCA-treated wood in C&D debris, as well as the accuracy of visual
sorting among C&D processors. Therefore, the Agency had requested
comment on the viability of either requiring, as best management
practices, C&D processors to implement formal training programs that
emphasize sorting treated wood from untreated wood or the use of XRF
technology or PAN indicator stains to provide greater certainty that
CCA-treated wood is removed from the processed C&D wood.
After considering the information in the record, including comments
received, the Agency has determined that CCA-treated wood must be
excluded or removed from C&D debris, by trained operators, to ensure
that levels of arsenic and chromium in processed C&D wood remain
comparable to or lower than levels in clean wood and biomass. Unlike
formaldehyde levels which are expected to decrease over time, levels of
arsenic and chromium are expected to increase with continued use of
CCA-treated lumber or other copper, chromium, or arsenical
preservatives.
The Agency's decision to require that operators be trained to
exclude or remove treated wood (with the exception of resinated wood)
as part of the best management practices, is based in part on the
results from the Florida pilot study which showed a high rate of
success when extensive training was provided for visual identification
of treated wood; and in part because both XRF technology and PAN
indicator
[[Page 6701]]
stains are limited in application when processing large amounts of C&D
debris. The evidence demonstrates that processors who train their
employees to visually recognize treated wood are successful in
excluding or removing CCA-treated wood.\43\ Therefore, by requiring
processors to train their operators as part of this categorical non-
waste listing, it will further ensure that levels of arsenic and
chromium in processed C&D wood remain comparable to or lower than
levels in clean wood and biomass as more CCA-treated wood is introduced
into C&D debris.
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\43\ Blassino, Monika, et al. ``Methods to Control Fuel Quality
at Wood Burning Facilities.'' EPA-HQ-RCRA-2013-0110-0033.
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Disaster Debris. The definition for C&D wood as proposed did not
include disaster debris. The Agency had defined ``clean cellulosic
biomass'' to include clean wood found in disaster debris.\44\ However,
disaster debris wood that is mixed with contaminated materials (e.g.,
lead-based painted wood, asbestos containing materials, etc.) had not
been specifically addressed. The Agency noted in the proposal that
management of disaster debris is more expedited and less controlled and
thus, prone to include contaminants that might otherwise be sorted out
prior to processing.\45\ In light of these concerns, the Agency
requested comment on the appropriateness of including wood that is
recovered from disaster debris, but that is mixed with other
contaminated materials prior to arrival at the processing facility, as
processed C&D wood. Thus, the Agency requested that commenters provide
any data or information to demonstrate that mixed disaster debris wood,
once processed, produces wood that contains contaminants comparable to
or lower than biomass and virgin wood. Further, the EPA also requested
comment on whether other conditions imposed by contingency plans, for
example, can facilitate the removal of contaminated material found in
disaster debris.
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\44\ 76 FR 15478 (March 21, 2011); codified at 40 CFR 241.2.
\45\ Management of disaster debris can involve significantly
greater volumes. For example, prior to the 1994 Northridge
earthquake in Los Angeles, one local company processed 150 tons of
C&D debris per day. After the earthquake, the city picked up as much
as 10,000 tons of C&D debris per day.
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The Agency finds that the concerns as expressed in the proposal
would only be relevant if the best management practices, as finalized
in this rule, are not followed. As discussed previously in the section
on processing (See section V.A.4.a.i. of this preamble), the best
management practices ensure that the contaminants in the fuel that is
burned will not be unpredictable regardless of the source of the wood,
or even the quantity of wood to be processed. In other words,
processors that comply with the best management practices for this
listing would not be altering the way in which they process the debris.
Should a processor choose to hire and train additional sorters or
extend operational hours to process higher volumes, the limiting
factors that will continue to ensure the quality of the processed
material are the best management practices and training and
certification requirements. (For additional discussion on handling
practices, refer to section V.A.3. of this preamble.) Thus, clean wood
from natural disaster debris that is mixed with other materials and is
delivered to a processing facility has been added to the definition of
C&D wood. However, the disaster debris must be processed in the same
manner as C&D wood recovered from demolition activities to qualify for
the categorical non-waste listing.
Trained operators. As presented in the proposal at 79 FR 21016,
best management practices require sorting by ``trained operators'' to
remove or exclude all non-wood debris, certain treated wood, and lead-
based painted wood from the final product fuel. The Agency noted that
operators who are trained to sort C&D debris, especially to recognize
treated wood, play an important role in reducing contaminant levels in
the final product fuel. Therefore, comment was requested on whether the
Agency should require C&D processors to have formal training programs
in place as part of the best management practices, as well as whether
processors should be required to keep records as a condition of the
categorical listing to demonstrate that such operators have been
formally trained.
In the proposal, the Agency did not prescribe what a training
program could include due to several factors that contribute to
variability within the C&D processing industry. Certain factors such as
where the C&D debris originates from and the amount of sorting prior to
arrival at the processing facility can influence the extent and type of
contaminated material arriving at the processing facility. Also,
whether positive or negative sorting is used and the scale of the
processing facility (i.e., the degree of sorting and screening devices)
are variable within the industry. Thus, the Agency sought comment on
whether to require processors to have formal training programs, and if
so, requirements that would be flexible enough to address the
variability of the incoming C&D debris, but also provide additional
assurance that C&D processing facilities would produce a non-waste
product fuel with contaminants that are comparable to or lower than
clean wood/biomass.
For this final listing, the Agency is not prescribing the elements
of a training program and maintains that flexibility is necessary to
address the variability within the industry. However, the Agency is
finalizing a requirement for processors to train their operators in
accordance with the best management practices. The Agency did not
include a specific training requirement for processors because it had
intended to rely on a written certification as a means for processors
to show that they had used ``trained'' operators. After further
consideration, the Agency finds that this approach does not provide any
assurance that the processor is conducting the necessary training in
order to ensure that the resultant material is not discarded when
combusted and is, therefore, not a waste. Although the written
certification, as proposed and finalized in this rule, is intended to
confirm that the processed C&D wood has been sorted by ``trained''
operators in accordance with best management practices, it does not
require any evidence that training has taken place, nor does it hold
the processor accountable. Thus, a mechanism is necessary to document
when the training has been conducted so that processors are accountable
to their customers when certifying that they have used trained
operators. This mechanism is implemented via new regulatory language at
40 CFR 241.4(a)(5)(iii) which states that ``[p]rocessors must train
operators to exclude or remove the materials as listed in paragraph
(a)(5) of this section from the final product fuel. Records of training
must include dates of training held and must be maintained for a period
of three years.'' The training requirement serves as an additional
condition of this categorical non-waste listing. This condition is
applicable only to the final processor, because it is ensuring that
processing has transformed the processed C&D wood into a non-waste
product fuel according to best management practices before providing it
to the combustor, and the final processor is responsible for meeting
individual combustor specifications. However, it is important to note
that the C&D materials at the intermediate processor facilities would
still be solid wastes.
Written Certification. As proposed at 79 FR 21016, the combustor
would need
[[Page 6702]]
to obtain a written certification from the C&D processor that the C&D
wood has been processed by trained operators in accordance with best
management practices. The Agency proposed that the written
certification could take the form of a contract, purchase agreement, or
other document that requires the supplier to process the C&D wood
according to combustor specifications and best management practices. It
was the Agency's understanding that purchase agreements and contracts
are common between a processor/supplier and combustor. Thus, comment
was requested on whether such agreements and contracts are sufficient
documentation (i.e., can serve as the written certification) or if a
written certification statement developed specifically to address the
requirements in the proposal would be clearer and more effective. The
Agency noted that the existing record keeping requirements for
combustors that combust NHSMs as fuels listed under 40 CFR 241.4,\46\
would be appropriate for maintaining the certification. The purchase
agreement, contract, or other document, would be considered a
``record'' which satisfies the record keeping requirements of 40 CFR
60.2740(u) (Emissions Guidelines) and 40 CFR 60.2175(w) (New Source
Performance Standards) for CISWI units and 40 CFR 63.11225(c)(2)(ii)
for area source boilers and 40 CFR 63.7555(d)(2) for major source
boilers.\47\
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\46\ 40 CFR 241.4 lists the categorical or ``Non-waste
determinations for specific non-hazardous secondary materials when
used as a fuel.''
\47\ These sections state that ``for operating units that
combust non-hazardous secondary materials as fuel per 40 CFR 241.4,
you must keep records documenting that the material is listed as a
non-waste under 40 CFR 241.4(a).''
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The Agency has determined that a written certification statement
developed specifically to address requirements of the categorical non-
waste listing will provide independent assurance that processors are
providing a legitimate product fuel to their customers. Although
contracts and purchase agreements indicate a commitment to quality,
specifications can vary according to the needs of one combustor versus
another with respect to the extent and type of contaminant removal
required. The contracts and purchase agreements that the EPA has seen
do not show that C&D wood has been processed according to any
particular best management practices, and consequently, cannot ensure
that the resulting material is not a waste when combusted. The written
certification statement is required only for the final processor, since
it is responsible for ensuring that the final product fuel has been
processed according to best management practices. Note that the
materials at intermediate processor facilities would still be solid
wastes. Therefore, this final rule requires combustors to obtain a
written certification from the final processor for every new or
modified contract, purchase agreement, or other legally binding
document. This written certification statement must state that the
processed C&D wood has been sorted by trained operators in accordance
with best management practices. See the new requirements at 40 CFR
241.4(a)(5)(iv).
6. Response to Comments
a. Definition of Construction and Demolition (C&D) Wood
Comment: Commenters supported the inclusion of disaster debris in
the definition of C&D wood, generally arguing that the definition
already includes disaster debris because it does not distinguish
between the demolition and dismantling of buildings by nature or man.
Man-made demolition debris will not necessarily be distinguishable from
debris created by nature. Managing wood from natural disasters requires
the same processes used for [man-made] C&D debris. Although a natural
disaster may increase the quantity of C&D wood available for
processing, processors will follow the same practices in terms of
material acceptance and processing. Where incoming material exceeds
processing capacity and cannot be stored, the material will typically
be landfilled. In addition, purchasers of processed C&D wood will
continue to require material that meets or exceeds their
specifications, so processors must continue to exert tight controls to
avoid risking rejected materials. The [proposed] regulatory
requirements for training and processing would still prevail.
Accordingly, the EPA should amend the last sentence of the definition
that addresses C&D wood from demolition activities to include ``natural
disasters.''
Response: We agree that the definition of C&D wood should include
the term ``natural disaster'' to represent activities resulting from
natural disaster events. Accordingly, the Agency has revised the
definition from the proposal so that the last sentence now reads ``C&D
wood from demolition activities results from dismantling buildings and
other structures, removing materials during renovation, or from natural
disasters.''
Clean wood in disaster debris had been included in the definition
for ``clean cellulosic biomass'' in a prior rulemaking. When clean wood
is picked/sorted (i.e., via positive sorting) from the disaster debris
site and sent to a processor for chipping and grinding, it is
considered clean cellulosic biomass, which is a traditional fuel.
However, the Agency had not addressed clean wood from disaster debris
that is mixed with contaminated materials which could include other
types of treated wood, drywall, plastics, concrete and so forth, that
is delivered to a processing facility. When clean wood from disaster
debris is not picked/sorted prior to arrival at a processing facility,
it is no different than C&D debris and thus, must be processed in the
same manner to qualify for this categorical non-waste listing.
The proposal expressed concern regarding the management of disaster
debris prior to processing, such that due to the circumstances, large
quantities of debris would need to be managed expeditiously, and
consequently may contain more contaminated materials that would have
been typically sorted out prior to arrival at a processing facility.
However, after considering the comments and evidence in the record, the
Agency finds that these concerns regarding the management of large
volumes of material in an expeditious nature, would only be relevant if
the best management practices as finalized in this rule, are not used
to process wood from natural disaster debris. The best management
practices set forth in this rule are sufficient to ensure that natural
disaster debris is handled and processed in the same manner as other
C&D debris, regardless of the source or quantity of material to be
processed. In other words, processors that comply with the best
management practices for this listing would not be altering the way in
which they process the debris. Should a processor choose to hire and
train additional sorters or extend operational hours to process higher
volumes, the limiting factors in this rule that will continue to ensure
the quality of the processed material are the best management practices
and training and certification requirements. Further, the information
provided to the Agency shows that when the incoming material exceeds
processing capacity, the excess material is stored or sent to a
landfill. Given the best management practices and information
indicating the typical handling of excess material, the Agency has
determined that it is appropriate to include disaster debris in the
definition of C&D wood. Thus, clean wood from natural disaster debris
that is mixed with other materials and is delivered to a processing
facility has been added to the definition of C&D wood. However,
[[Page 6703]]
the natural disaster debris must be processed in the same manner as C&D
wood recovered from C&D activities to qualify for this categorical non-
waste listing.
Comment: The definition of C&D wood should be expanded with respect
to the sources of wood generated from construction activities. As
proposed, the second sentence of the definition states ``C&D wood from
construction activities results from cutting wood down to size during
installation or from purchasing more wood than a project ultimately
requires.'' This sentence may be too prescriptive, since wood can also
be generated from incorrectly cut wood, wood used for concrete forms,
wood used for support braces, and other uses which render the wood
unsuitable for installation.
Response: The definition of C&D wood as applied to construction
activities was not intended to be limited to a specific installation
activity (i.e., cutting wood down to size). The Agency, however,
understands that it may be read to be prescriptive. To address any
ambiguity, the Agency has revised the second sentence for construction
and demolition (C&D) wood at 40 CFR 241.2 with the following, ``C&D
wood from construction activities results from wood generated during
any installation activities or from purchasing more wood than a project
ultimately requires.'' Thus the definition is not limited to ``cutting
wood down to size'' but allows any waste wood generated at any time
during installation to be considered construction debris. Although the
revision does not specifically list the specific installation
activities as suggested, it now acknowledges that there are a number of
different ways that construction activities can generate wood without
limiting applicable activities by specifically listing them in the
definition.
b. Contaminant Comparison Criterion
Comment: Changes should be made to the method for comparing
contaminant levels in processed C&D wood. Rather than comparing the
constituents of concern to virgin wood or biomass, the Agency should
consider establishing a standard based on analytical surveys of well-
sorted C&D debris and use the test results as the standard. Also,
specific contaminant levels need to be developed by the Agency to
clearly define what a legitimate fuel product is that can be burned as
a non-waste. Without a clearly defined set of contaminant levels, the
rule will be very difficult to enforce.
Response: We disagree that any modifications to the contaminant
comparison legitimacy criterion should be made, particularly with
respect to establishing what the Agency considers a ``bright line'' or
even a numerical approach to setting levels for C&D wood. The issue is
not that analytical surveys of well-sorted C&D debris establish a
standard. Rather, the levels in the processed C&D wood must compare
favorably to the traditional fuels that it replaces. The rationale for
comparison of a NHSM's contaminant concentrations to the traditional
fuels which the combustion unit is designed to burn is explained in
several related rulemakings.\48\
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\48\ 74 FR 54 (January 2, 2009), 75 FR 31883 (June 4, 2010), and
76 FR 15526 (March 21, 2011).
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The Agency disagrees with the suggestion to develop specific
contaminant levels. We previously said that if we were to consider such
an approach, the Agency would have to establish a line for what is
acceptable and the line may either be somewhat arbitrary or it may
exclude materials that, if carefully considered, should be considered
legitimate. On the other hand, case-by-case comparisons by each person
evaluating this legitimacy criterion can take into account the wide
variety of NHSMs, as well as the appropriate traditional fuel to which
it is being compared. Because this factor must apply to various
different recycling activities and industries, the case-by-case
approach is most appropriate.\49\ Thus, an NHSM must contain
contaminants at levels that are comparable to or lower than the range
provided for the traditional fuel on a case-by case basis to qualify as
a product fuel.
---------------------------------------------------------------------------
\49\ 76 FR 15525-26.
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In the case of a categorical non-waste listing, the Agency may list
a specific NHSM when it has determined that the NHSM has not been
previously discarded, or if discarded, has been sufficiently processed,
and is legitimately used as a product fuel. When an NHSM is listed as a
categorical non-waste, persons that generate or burn processed C&D wood
will not need to make individual (i.e., case-by-case) determinations
that it meets the legitimacy criteria (see 79 FR 21009). Specifically
for C&D wood, the Agency has evaluated all data and information and has
determined that C&D wood processed according to best management
practices is transformed into a legitimate product fuel and is
appropriately listed as a categorical non-waste. Thus, a case-by-case
comparison of contaminant levels in processed C&D wood to clean wood/
biomass is not required for C&D wood processed according to best
management practices. However, if the processing of C&D wood is found
to be in non-compliance with conditions of this listing, the combustor
may face enforcement action.
c. Construction and Demolition (C&D) Wood Processed From C&D Debris
According to Best Management Practices
Comment: C&D wood should be regulated as a solid waste because it
is discarded similar to scrap tires.
Response: The Agency agrees that a discarded NHSM is a solid waste
first. However, the commenters make an incorrect comparison between C&D
wood and scrap tires. In the March 21, 2011 final rule, the Agency
stated that ``. . . a system where scrap tires are removed from
vehicles and are collected and managed under the oversight of
established tire collection programs are not discarded in the first
instance . . . [t]hese programs ensure that the tires are not discarded
en route to the combustor for use as a fuel and are handled as a
valuable commodity . . .'' \50\ In this case, the commenters did not
acknowledge the Agency's previous determination that not all scrap
tires are discarded. Moreover, the Agency later finalized a categorical
non-waste listing for scrap tires that are not discarded. See the final
rule in the Federal Register at 78 FR 9154, February 7, 2013, and 40
CFR 241.4.
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\50\ See 76 FR 15491-92.
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Contrary to scrap tires, mixed C&D debris (i.e., it is not composed
of only clean cellulosic biomass) is discarded in all instances and
must be processed sufficiently to transform the resulting C&D wood into
a legitimate non-waste fuel. This is unlike scrap tires, where only the
scrap tires that have been discarded must be processed to become a non-
waste fuel.
The Agency has discussed its position on processing of discarded
secondary materials at length in the March 21, 2011 final rule. For
discarded secondary materials, when sufficient processing has been
performed and if the resulting material meets the legitimacy criteria,
the fuel or ingredient product would be considered a non-waste material
(76 FR 15475-76, March 21, 2011). The Agency has determined previously
that C&D debris can be processed to transform the C&D wood into a
product fuel that meets the legitimacy criteria (76 FR 15485, March 21,
2011 and 78 FR 9138, February 7, 2013). Further, the Agency has
determined that processed C&D wood is appropriately listed as a
[[Page 6704]]
categorical non-waste when specific conditions are met which are:
conducting processing according to best management practices,
conducting training, and providing a written certification. These
conditions are designed to ensure that the resulting C&D wood is a non-
waste product fuel.
Comment: The EPA's March 21, 2011 document ``Identification of non-
hazardous secondary materials that are solid waste'' states that when
C&D is sorted, painted wood is removed. This is misleading and is not
the case. Painted and contaminated wood is routinely burned as
evidenced by an interview at a processing facility where the plant
manager stated that the ``positive pick'' process did not remove
painted wood from the line and by a photograph of the same facility's
processed C&D wood containing painted wood. In addition, another
processing facility whose product fuel is reported to consist of forest
industry waste, shredded construction wood waste, and demolition debris
also contains significant amounts of paper, plastic, and foreign
debris.
Response: The commenter misconstrues the Agency's discussion of
processed C&D wood in the final rule at 76 FR 15485, March 21, 2011.
When describing how contaminated C&D wood can become a non-waste
product fuel, the Agency stated that ``C&D-derived wood is typically
sorted to remove contaminants (e.g., lead-painted wood, treated wood,
non-wood materials), and size reduced prior to burning, producing
material that likely meets the processing and legitimacy criteria for
contaminants.'' Nothing in this statement specifically says that
painted wood is removed through the sorting process. Furthermore, the
Agency notes that not all painted wood is lead-based and thus, does not
present the same contaminant concerns.
The Agency is concerned however, that lead painted wood and fines
containing lead can contribute to elevated levels of lead in processed
C&D wood. Thus, the Agency proposed and has finalized in this rule
certain best management practices designed to eliminate sources of lead
in processed C&D wood. C&D processors have options for excluding
(positive sorting) or removing (negative sorting) sources of lead:
Excluding or removing all painted wood from the incoming material,
using X-ray Fluorescence to detect and exclude or remove lead-painted
wood from the product fuel, or requiring documentation that a building
has been tested for and does not include lead-based paint before
accepting the demolition debris. In addition, negative sorting
facilities must also remove fines during processing.
The Agency also agrees that other types of treated wood are often
present in C&D debris. To address potentially elevated levels of other
contaminants in treated wood, the Agency had proposed and has finalized
in this rule best management practices to designed to eliminate
specific types of treated wood from processed C&D wood. The best
management practices require exclusion or removal of wood treated with
creosote, pentachlorophenol, chromated copper arsenate, or other
copper, chromium, or arsenical preservatives. In addition, the best
management practices require exclusion or removal of non-wood materials
such as plastics, drywall, concrete, aggregates, dirt and asbestos. See
40 CFR 241.4(a)(5). For a detailed discussion of the final best
management practices, please refer to section V.A.3. of this preamble.
Comment: The EPA must require testing for contamination. C&D as a
waste fuel is extremely variable. ``Slugs'' of contaminated wood move
through sorting facilities at various times.
Response: The Agency agrees that C&D debris is extremely variable
as a waste. Certain factors such as where the C&D debris originates
from and the amount of sorting prior to arrival at the processing
facility can influence the extent and type of contaminated material
arriving at the processing facility. Also, whether positive or negative
sorting is used and the scale of the processing facility (i.e., the
degree of sorting and screening devices) further contributes to
variability within the industry. To address this variability, the
Agency has finalized best management practices (see 40 CFR 241.4(a)(5))
for this categorical non-waste listing that require specific materials
to be excluded or removed during processing. Also, as part of the best
management practice requirements, C&D processors must certify that
their processed C&D wood has been sorted by trained operators.\51\
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\51\ For a complete discussion of the certification and training
requirements, see section V.A.3. of this preamble. These
requirements are codified at 40 CFR 241.4(a)(5)(iii) and (iv).
---------------------------------------------------------------------------
The best management practices ensure that the contaminants in the
fuel that is burned will be predictable, regardless of the type or
number of processing techniques used or the source of the C&D debris.
Thus, the Agency does not agree that it is necessary to require
contaminant testing for this categorical non-waste listing. However, if
a person chooses not to take advantage of this categorical non-waste
listing, then a case-by-case determination would need to be made that
the C&D wood has been sufficiently processed according to 40 CFR 241.2
and meets the legitimacy criteria according to 40 CFR 241.3(d)(1).
Comment: Copper should be deleted from the best management practice
list of materials that are to be excluded or removed from the final
product fuel. While the list includes materials that may not qualify as
non-hazardous and materials that are addressed separately in the
proposal, it overreaches by including copper, which is neither
hazardous nor a listed Hazardous Air Pollutant (HAP). The proposed
rule's preamble provides no basis for requiring exclusion or removal of
wood that contains copper, and it is not necessary to include this
restriction in order to avoid concerns about CCA or other arsenic or
chromium-based preservatives, since they are covered by provisions in
the proposed rule.
Response: The Agency disagrees that copper should be deleted from
the list of materials to be excluded or removed. The Agency had
previously found, based on information in the June 2010 proposed rule
and the March 21, 2011 final rule that wood treated with copper
napthenate is considered a solid waste because of concerns of elevated
contaminants. At the time of these rules, the Agency indicated that it
did not have sufficient information on contaminant levels in wood
treated with copper naphthenate.52 53 As a result, we have
determined that copper should remain on the list.
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\52\ 75 FR 31863 and 76 FR 15484.
\53\ Since publication of these rules and the April 2014
proposal (79 FR 21005), the Agency has received a petition for a
categorical non-waste listing for other treated wood types (included
in the docket for this rule), one of which is wood treated with
copper naphthenate. The petition included contaminant data for wood
treated with copper naphthenate and is under evaluation.
---------------------------------------------------------------------------
Comment: In the third sentence of the proposed regulatory language
for the best management practices, specific materials are required to
be excluded or removed. This is much too restrictive because it can be
interpreted as meaning all listed materials must be completely removed
from the C&D debris. The requirement as proposed would render the
requirement unworkable and impossible to meet. It would be more
appropriate to require that the BMPs ``substantially exclude or
substantially remove'' unwanted materials in order to recognize that
some small amount of unwanted materials, although insignificant, may
pass through the C&D stream even when using BMPs. Similarly, the
proposed regulatory paragraph at 40 CFR 241.4(a)(5)(ii)
[[Page 6705]]
contains the terms ``remove'' and ``must remove.'' Again, these terms
are believed to be overly prescriptive, and should be modified to
recognize that small, insignificant amounts of undesirable materials
may be present in the final fuel product.
Another comment suggested that the words ``to the extent
practical'' be added to the current language for clarification that 100
percent exclusion or removal is not required. The EPA should revise the
description of best management practices to remove the implication that
100 percent of the listed materials are to be removed or excluded.
Response: The Agency did not intend that the terms ``excludes'' and
``removes'' to mean that 100 percent of the listed materials be
excluded or removed, or that the listed materials must be completely
removed from the C&D debris during processing. While it is essential to
exclude or remove the listed materials, the Agency also recognizes that
a material would still be a non-waste even if there are some negligible
or de minimis amounts of contaminants in the final combusted material.
This is supported by the rulemaking record, specifically the discussion
in the March 21, 2011 final rule where commenters argued that there
should be a de minimis exemption for processed C&D wood to address
small or de minimis amounts of material remaining on the wood. In
response, the EPA acknowledged that ``C&D-derived wood can contain de
minimis amounts of contaminants and other materials provided it meets
the legitimacy criterion for contaminant levels'' and thus, did not
find it necessary to finalize a de minimis exemption.\54\ That
discussion supports the application of a de minimis principle for this
rule for exclusion and removal of contaminants.
---------------------------------------------------------------------------
\54\ See 76 FR 15486 (March 21, 2011).
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The concept of de minimis amounts of material in processed C&D wood
is also supported throughout the proposed rule. The Agency noted that
C&D wood processing facilities can use a variety of techniques to
exclude or remove debris unsuitable for a product fuel and that the
processing techniques used may be based on several factors such as: the
nature of incoming C&D debris, the extent of material segregation prior
to arrival at the processing facility, whether positive or negative
sorting is employed, and the scale of the processing facility.\55\ In
addition, C&D processors who provide extensive training for their
workers to recognize treated wood tend to be more successful than those
processors who do not provide extensive training in excluding or
removing treated wood, as evidenced by the Florida study.\56\ When
considering the data submitted for C&D wood, it demonstrates that there
is variability regarding levels of contaminants present in processed
C&D wood, but that the contaminant levels are well within the range of
clean wood and biomass materials for most every contaminant.\57\ Thus,
all of these factors taken together recognize that there invariably
will be some amount of unwanted materials that contribute to
contaminant concentrations even when using best management practices
and trained operators, but that a legitimate product fuel is still
produced.
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\55\ See 71 FR 21011 (April 14, 2014).
\56\ See Blassino, Monika, et al. ``Methods to Control Fuel
Quality at Wood Burning Facilities,'' EPA-HQ-RCRA-2013-0110-0033.
\57\ Please see the discussion at 71 FR 21014-015 for a detailed
explanation of how the Agency initially addressed the specific
contaminants: fluorine, lead, pentachlorophenol, and formaldehyde.
See also section V.A.4 of this preamble for final Agency
determinations.
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To include language as the comments suggested, such as to
``substantially exclude or substantially remove'' or ``to the extent
practical,'' gives the perception that the best management practice
standard is not a stringent requirement, but akin to a ``best efforts''
standard. This would not be an acceptable standard to ensure that
processed C&D wood is a legitimate product fuel. Thus, the Agency has
determined that it is not necessary or accurate to modify or add terms
to the regulatory language to state that 100 percent exclusion or
removal is not required.
Comment: Management practices for positive sorting are intended to
address lead. Data provided to the EPA demonstrates that industry
practices appropriately manage lead to ensure that specifications are
met and that combustors will meet the limits in their Clean Air Act
permits. Nonetheless, the management practices that address lead
proposed by the EPA are not opposed when specific clarifications are
made to address concerns as requested. The following concerns also
apply to the management practices for negative sorting:
First, 100 percent removal of unwanted material is not technically
feasible, practicable, nor necessary to produce a legitimate fuel
product.
Second, one option for removal of lead painted wood is the use of
XRF ``to ensure that painted wood included in the final product fuel
does not contain lead-based paint.'' The EPA cites the University of
Florida pilot study of a conveyor system that was funded by the
manufacturer of XFR equipment. This is a pilot study that has not been
demonstrated for an industrial setting. In fact, it has a throughput of
only 20 tons per hour while most C&D processing facilities are
permitted to manage 500 tons a day or more and operate on only one
shift a day. It is neither feasible nor practicable to ``ensure'' all
wood painted with lead-based paint is removed using XRF technology. The
C&D processors that currently use XRF use a hand held gun to test a
sample of an incoming load. None use the conveyor system described in
the University of Florida study.
The lead paint testing option raises similar concerns. It is
assumed that the EPA is not suggesting that every square foot of
painted wood be tested.
It is requested that the EPA modify the description of these
management practices to remove the implication that 100 percent removal
is technically feasible and practicable and allow C&D processors to
screen samples, not every piece of painted wood. To clarify these
issues, the EPA could modify the regulatory language for both positive
and negative sorting such that the second option would read, ``use X-
ray Fluorescence to test a sample of painted wood from each source or
supplier of demolition debris received by the C&D wood processor to
identify and reject wood with lead-based paint.'' For the third option,
it would read ``require documentation that a sample of painted wood
from a building has been tested for and does not include . . .''
Response: First, the Agency disagrees that it is valid to say that
industry practices appropriately manage lead. The data submitted to the
Agency demonstrate otherwise. As noted in the proposal, there were
instances in which isolated samples from Massachusetts (at 407 and 437
ppm) and Wisconsin (at 482 ppm) exceeded the lead levels found in clean
wood and biomass (ND-340 ppm). While most of the 224 samples detected
lead within the range found in clean wood and biomass, it is important
to recognize that each high sample could represent a large amount of
processed C&D wood produced by an outlier facility. Accordingly, an
overly broad categorical non-waste listing could include processed C&D
wood from facilities where the final product consistently contains high
lead levels. Facilities that had lower levels of lead either did not
accept painted wood or required documentation of XRF testing before
accepting demolition debris. (See 79 FR 21014, April 14, 2014.)
Accordingly, the Agency includes in the regulation the requirement that
at least one practice must be used for positive
[[Page 6706]]
sorting facilities and negative sorting facilities; however negative
sorting facilities must also remove fines.
Moreover, it is important to understand that the limits imposed in
a Clean Air Act permit have no bearing on what is determined to be a
waste or non-waste under RCRA when the material goes to a combustion
facility. The point is that Clean Air Act permits must apply to the
input material--whether they are wastes or not, and control of the
associated emissions. The input material determines which Clean Air Act
standards (i.e., CAA section 112 or CAA section 129) are applicable.
Second, the Agency does not agree with the suggested language that
would specify testing for a representative sample or ``sample of
painted wood from each source or supplier'' be performed for purposes
of meeting the XRF lead elimination option. The term ``sample'' can
vary in interpretation from one processor to another, with some
analyzing more samples than others which could result in significant
amounts of lead. This would indicate disposal rather than use as a
product fuel. The proposed language at 40 CFR 241.4(a)(5)(i)(B) and
(ii)(B) which states, ``[u]se X-ray Fluorescence to ensure that painted
wood included in the final product does not contain lead-based paint .
. .'' is intended to be a stringent standard, which the Agency adopts
for the final rule. The expectation is that if a processor accepts
painted wood, then it must determine if the paint is lead-based. If it
is positive for lead, then that piece of wood must be excluded or
removed. The same applies to the language at 40 CFR 241.4(a)(5)(i)(C)
and (ii)(C) that requires documentation that a building has been tested
for and does not include lead-based paint prior to accepting demolition
debris from that building. The Agency is not including regulatory
language in regard to sampling. Rather, the frequency of sampling
should be determined by the processor such that the processor can
ensure that the accepted painted wood is not lead-based.
The Agency is convinced by the data that when XRF technology is
used, the lead levels in processed C&D wood are comparable to or below
the lead levels found in clean wood and biomass. Specifically, a
facility located in Washington State receives co-mingled C&D debris.
Prior to materials being accepted for processing, a rigorous inspection
process is carried out, including documentation showing that the
building was inspected for asbestos containing materials if it was from
a demolition or renovation project, and visual inspections and lead-
based paint testing through XRF. As a result, the ten samples analyzed
show an average lead concentration of 10.6 ppm, with a maximum of 26
ppm.\58\ This shows that the lead elimination options as proposed are
in fact achievable.
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\58\ See revised Appendix A (Revision Submission: April 25,
2013) to letter from Susan Bodine to Suzanne Rudzinski in Docket ID:
EPA-HQ-RCRA-2013-0110-0022.
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If a processor chooses to accept and include painted wood for
processing, then the painted wood either must be analyzed via XRF or
documentation must be provided from a demolition or renovation project
indicating that painted wood has been analyzed and does not contain
lead. As noted above, the frequency of sampling should be determined by
the processor such that the processor can ensure that the accepted
painted wood is not lead-based. The Agency finds that the lead
elimination options for both XRF and documentation that a building has
been tested for and does not include lead-based paint prior to
accepting demolition debris from that building, are appropriate and
finalized as proposed.
To respond to the comment about the Agency's citation of the XRF
conveyor system in the University of Florida pilot-study, we understand
that processors would be hesitant to make a significant investment in a
XRF conveyor system that has not yet been proven in a large industrial
setting. The aspect of the study that the Agency found relevant was the
discussion of the benefit of providing extensive training to operators
for visual recognition of treated wood. The Agency does not promote one
XRF technology over another. The Agency recognizes that not all
processors use XRF technology (i.e., handheld gun), thus it is an
option for both positive and negative sorters--so that processors can
choose to invest in XRF or comply with one of the other lead
elimination options. Nevertheless, a determination to finalize the
option to use XRF is appropriate regardless of the volume of the input.
The point is that, even with high volume input, the lead must be
removed.
Finally, similar to other comments that identified terms in
regulatory language that appear too restrictive (see preceding comment
and response), the Agency does recognize that a material can still be a
non-waste even if there are some negligible or de minimis amounts of
contaminants in the final combusted material. The Agency acknowledges
that C&D-derived wood can contain de minimis amounts of contaminants
and other materials provided it meets the legitimacy criterion for
contaminant levels. Again, to include terms such as ``sample'' or even
``representative sample'' in regulatory language gives the perception
that the best management practice standard for eliminating lead is not
a stringent requirement, but akin to a ``best efforts'' standard. This
would not be an acceptable standard to ensure that processed C&D wood
is a legitimate product fuel.
Comment: A commenter stated that facilities [called ``chipping and
grinding'' facilities] which process only clean segregated wood, but
that may have to remove de minimis amounts of unwanted material, should
not be required to remove fines because the C&D debris fines which may
contain contaminants are left behind as a result of the segregation.
These chip and grind facilities are permitted to receive and grind
``Green Material'', which under California regulations includes
acceptable C&D-derived wood as well as other clean cellulosic biomass
materials.\59\
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\59\ ``Green Material'' under California law means any plant
material that is separate at the point of generation, contain no
greater than 1.0 percent of physical contaminant by weight, and
meets the requirements of Title 14 CCR, Division 7, Chapter 3.1,
Article 7, section 17868.5. Green material includes, but is not
limited to yard trimmings, untreated wood wastes, natural fiber
products, and C&D wood waste.
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The acceptable C&D wood is sourced from contractors, homeowners,
community collections, and other typically small generators who
segregate and/or collect clean wood from C&D sites. Chip and grind
facilities do not process comingled C&D, but they may need to remove de
minimis amounts of visible residual physical contaminants such as
metal, plastics, and pieces of non-compliant wood that may be present
in the green material, typically by hand, in order to meet customers'
fuel quality specifications. This quality control measure should not be
deemed processing by negative sorting which triggers the requirement to
remove fines. Fines removal would be an expensive step at chipping and
grinding facilities and is unnecessary because the C&D wood received
has already been seperated from the mixed C&D materials and
contaminants, including fines, are not present in meaningful amounts.
An attachment for five different California chipping and grinding
facilities that receive and grind green material, but do not remove
fines, show that each facility's fuel meets the NHSM rule's contaminant
criterion.\60\
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\60\ See Attachment 1 of comment submitted by Covanta Energy
Corporation in Docket: EPA-HQ-RCRA-2013-0110-0084.
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[[Page 6707]]
Another commenter states that they use fuel from a ``chip and
grind'' operation that receives and then resizes clean cellulosic
biomass, and material from contractors, small operators, and generators
of source-separated wood. These materials are sorted prior to receipt
at the chip and grind processor, and therefore there are no fines that
require screening or further separation. The EPA should not require
fines removal at chip and grind facilities that receive and process
only source separated C&D wood, since the fines have been left behind
with the non-wood C&D debris during the positive pick process.
Response: Chip and grind facilities would not be considered
negative sorters for purposes of the best management practices for lead
under this rule if in fact their sorting operations only involve
removal of small or de minimus amounts of unwanted material (as
described above) they have received from a source that has segregated/
pre-sorted the C&D material through positive sorting. This would be
different from the situation in which C&D processors accept and process
co-mingled C&D material in a large centralized facility which we
discussed in the proposal.
According to the data submitted by one commenter for five chip and
grind facilities that do not remove fines, lead concentrations for its
biomass fuel loads were all significantly lower (with the highest
concentration at 104 ppm, followed by 77 ppm, 48 ppm, 29 ppm, and 32
ppm) than the upper end for wood and biomass (340 ppm). Based on the
sampling data and the fact that the C&D wood has been pre-sorted via
positive sorting before reaching the chip and grind processing
facility, we agree with the commenters that chip and grind processors
should not be considered negative sorting facilities when they conduct
further sorting to remove small amounts of unwanted materials.
Therefore, we have revised the best management practice description
with respect to lead elimination requirement for positive sorters to
include facilities ``. . . that receive and process positive sorted C&D
wood''. See revised 40 CFR 241.4(a)(5)(i).
d. Specific Requests for Comments
i. Pentachlorophenol
Comment: The proposed requirements for operators to exclude or
remove utility poles treated with pentachlorophenol are consistent with
industry practices and combustor specifications and thus, no additional
requirements are necessary beyond training. Pentachlorophenol treated
wood is easily recognizable with visual inspection based on its dark
brown color.
Response: The Agency agrees that the requirement for processors to
train operators to identify pentachlorophenol treated lumber (as well
as any other treated lumber) as part of the best management practices
is sufficient to ensure that these products are excluded or removed
from incoming C&D debris. Because sources of pentachlorophenol can be
readily identified by color and by shape of the treated wood, no
additional conditions other than those specified by the best management
practices are necessary.
Comment: The EPA should allow testing of older, weathered poles for
the presence of pentachlorophenol above some preset level, since poles
exposed to deterioration from ultraviolet light and precipitation
frequently have lower levels of pentachlorophenol and can be burned
safely with controls. Levels must be low enough to prevent the
formation of dioxin/furans in combustors. The summary for the EPA study
``Products of Incomplete Combustion from Direct Burning of
Pentachlorophenol-treated Wood Wastes,'' (EPA/600/SR-98/013) states
that ``[t]he tests showed that combustion is an effective method of
destroying the pentachlorophenol in the treated wood, with destruction
efficiencies higher than 99.99 percent.'' Additional processing to meet
boiler specifications should be included.
Response: The Agency disagrees that it should allow testing of
older, weathered poles for the presence of pentachlorophenol. The very
argument that appropriate controls should be used to allow burning of
pentachlorophenol supports the point that the pentachlorophenol is,
indeed, a waste and should be burned under CAA section 129 standards.
Thus, the comments that pentachlorophenol can be effectively and safely
destroyed [emphasis added] (i.e., 99.99 percent destruction and removal
efficiency) and dioxin formation can be prevented [emphasis added] when
levels are low enough are concessions that pentachlorophenol in the
poles is a waste. Combustion for the purpose of destruction is a
function of waste combustion units (e.g., boilers burning hazardous
waste and incinerators burning hazardous, municipal, or medical
wastes), where pentachlorophenol would not be burned as a fuel, but
primarily for destruction.
Development of a preset level of contaminant concentrations is an
activity to determine appropriate standards under the CAA. Under the
NHSM framework, the material's contaminant concentration must be
comparable to, or less than, the traditional fuel it is replacing which
is one part of the process for determining whether the material has
been discarded before or during its combustion. In this case, clean
wood and biomass are the traditional fuels that are being replaced by
processed C&D wood. Clean wood and biomass do not contain
pentachlorophenol (non-detect levels) and, therefore, processed C&D
wood may not contain measureable levels of pentachlorophenol.
Otherwise, any processed C&D wood containing pentachlorophenol would be
considered to be burned for destruction, which is indicative of
discard. For further discussion on the Agency's approach to contaminant
comparisons, see the response to comment in section V.6.b.
ii. Formaldehyde Levels
Comment: We strongly support the EPA's decision to balance
formaldehyde levels with the fuel value of the resinated wood component
of C&D wood to allow formaldehyde levels in C&D wood fuel that are
somewhat higher than found in coal or biomass. First, when formaldehyde
is grouped with other VOCs and SVOCs and compared to the levels of this
contaminant grouping in C&D wood, the levels are comparable to
coal.\61\ Second, the only source that we are aware of formaldehyde in
C&D wood is resinated wood. The EPA has already recognized that
resinated wood is a valuable fuel commodity and has identified it as a
non-waste fuel. 40 CFR 241.4(a)(2). The basis for this determination
includes the recognition that resinated wood is a valuable fuel source
due to its high fuel value relative to other wood. 76 FR 80483.
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\61\ See revised Appendix A p. 2. (Revision Submission: April
25, 2013) to letter from Susan Bodine to Suzanne Rudzinski available
in Docket ID: EPA-HQ-RCRA-2013-0110-0022.
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The EPA also recognized that including resinated wood in a fuel mix
actually decreases hazardous air pollutant emissions. 76 FR 15502.
While not relevant to a determination of whether the contaminant
legitimacy criterion is met, this impact on emissions is a relevant
factor to be balanced when making a non-waste determination under 40
CFR 241.4. 78 FR 9112, 9157 (February 7, 2013).
As a component of a processed fuel, resinated wood is not being
combusted to discard it. On the contrary, as
[[Page 6708]]
discussed above, it is a component of a product that is a commodity
fuel.\62\
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\62\ Comments can be found in the rulemaking docket: EPA-HQ-
RCRA-2013-0110-0076.1; EPA-HQ-RCRA-2013-0110-0088; and EPA-HQ-RCRA-
2013-0110-0083.1.
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Response: The Agency agrees with the overall argument that
resinated wood can be burned as a product fuel along with other
processed C&D wood. The Agency described two relevant factors in the
proposal believed to be appropriate for balancing the higher
formaldehyde levels found in processed C&D wood as a result of the
inclusion of resinated wood components. First, although formaldehyde
levels in processed C&D wood may reach 176.8 ppm, national rules
developed by the CARB Composite Wood ATCM, per Public Law 111-199, will
ensure that newly produced resinated wood will contain even less
formaldehyde in the future by setting limits on how much formaldehyde
may be released. Second and more importantly, for many combustors,
processed C&D wood scraps that include resinated wood components,
actually have added value and are either selected for (in the case of
positive sorting) or specifically not removed (in the case of negative
sorting) because the wood has been kiln-dried prior to use in
construction. Kiln-dried wood has a greater heating value than virgin
wood, almost double in some cases. Kiln-dried wood also has more
consistent moisture content; an equally important benefit to combustors
because a consistent fuel improves combustion efficiency and leads to
reduced emissions of particulate matter, carbon monoxide, and other
organic hazardous air pollutants.
The Agency has determined that the additional factors discussed in
the proposal are appropriate and has adopted that rationale for the
final rule. Thus, resinated wood may remain in C&D wood prior to
processing for this categorical non-waste listing. This determination
is based in part on the fact that future rules will limit levels of
formaldehyde in wood products, and will in effect, also reduce the
levels of formaldehyde in processed C&D wood. Also and more
importantly, information submitted to the Agency states that some
processors choose to include resinated wood in processed C&D based on
combustor specifications for a higher Btu value fuel. This demonstrates
that resinated wood is a valuable fuel and is not burned for
destruction. Thus, the final rule allows flexibility for processors to
choose whether they will exclude or remove any resinated wood prior to
processing the C&D debris.
Regarding the citations provided in support of commenters'
rationale for not requiring exclusion or removal of formaldehyde,
clarification is needed. The citation at 76 FR 80483, December 23,
2011, discussed the Agency's proposed rationale for listing resinated
wood as a categorical non-waste. However, the fact that the Agency
finalized a listing for resinated wood as a categorical non-waste at 40
CFR 241.4(a)(2) (see also final rule at 78 FR 9155, February 7, 2013),
has no relevance to a determination of whether it is appropriate to
allow elevated levels of formaldehyde from resinated wood in an
entirely different industrial process. In the proposal at 79 FR 21015,
April 14, 2014. the Agency reviewed the rationale behind the
categorical non-waste listing for resinated wood, which discussed that,
although the situation appears similar to the categorical non-waste
listing for resinated wood in 40 CFR 241.4(a)(2), details surrounding
use of the two NHSMs as fuel are not the same. In the case of resinated
wood, as defined in 40 CFR 241.2, the Agency determined that energy
recovered from the combustion of manufacturing process residues and
off-specification resinated wood is integrally tied to the industrial
production process in the furniture manufacturing industry. The Agency
is not aware of an industrial process that is reliant upon C&D wood for
its energy needs.
The Agency also disagrees with the suggested grouping approach
included as reasoning for allowing resinated wood to be present in C&D
wood. The commenter suggested that when formaldehyde is grouped with
other VOCs and SVOCs and then compared to levels of this contaminant
grouping in C&D wood, the levels are comparable to coal.\63\ The
commenter also argued that this is an acceptable approach because the
Agency had previously determined that it is technically correct to
group VOCs and SVOCs because they behave similarly in combustion units.
The rationale behind this grouping approach, however, was to establish
emission standards where carbon monoxide serves as a surrogate for
measuring total VOC and SVOC emissions.\64\ Under NHSM, the Agency has
previously permitted grouping of total VOCs as well as grouping of
total SVOCs, but not for both groups combined for purposes of
comparison to a traditional fuel. More relevant however, is that the
Agency does not have any information or data indicating that units
combusting processed C&D wood also are designed to burn coal or do burn
coal. Thus, coal is not an appropriate traditional fuel for comparison
under this categorical non-waste listing.
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\63\ Because there are no data available on formaldehyde levels
in coal, the commenters' approach grouped the PAH levels (which are
SVOCs) and VOC levels in coal and then compared them to the levels
of the same contaminant groupings in C&D wood. See revised Appendix
A, p. 2. (Revision Submission: April 25, 2013) to letter from Susan
Bodine to Suzanne Rudzinski available in Docket ID: EPA-HQ-RCRA-
2013-0110-0022.
\64\ See 76 FR 80477 (December 23, 2011) for a broader
discussion.
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Finally, while it is true that the Agency has recognized that
including resinated wood in a fuel mix actually decreases some
hazardous air pollutant emissions, the purpose of the discussion at 76
FR 15502, March 21, 2011, was to reiterate that the legitimacy
criterion is based on the level of contaminants in the secondary
material itself, and not based on comparing the differences in
emissions. That said, the Agency agrees with the comment that, although
not relevant to a determination of whether the contaminant legitimacy
criterion is met, the impact on emissions is a relevant factor to be
balanced when making a non-waste determination under 40 CFR 241.4. The
Agency maintains that the benefits of burning kiln-dried wood not only
provides higher heating value, but also more consistent moisture
content which lends to more efficient combustion and thus reduced
emissions of certain contaminants.
iii. CCA-Treated Wood
Comment: The requirement to train operators to exclude or remove
treated wood is adequate, since visual identification via the color,
grain, and shape (such as decking or fencing) of pieces works well to
remove CCA-treated wood as demonstrated by the data in the record
showing that arsenic and chromium levels in C&D wood are comparable to
virgin wood.\65\
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\65\ April 26, 2013 letter from Susan Bodine to Suzanne
Rudzinski, available at Docket ID: EPA-HQ-RCRA-2013-0110-0025.
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Response: The Agency agrees that the requirement to train operators
to exclude or remove CCA-treated wood is the most appropriate option
and has finalized this as part of the best management practices and as
a separate training requirement at 40 CFR 241.4(a)(5)(iii). The Agency
also agrees that current data shows that arsenic and chromium levels in
processed C&D wood are comparable to levels in clean wood and biomass
(see Table 1. Comparison of Contaminants in Clean Wood/Biomass and
Processed C&D Wood to section V.A.4 of this preamble), which results
from those processors
[[Page 6709]]
who choose to exclude or remove CCA-treated wood prior to processing.
Thus, CCA wood can, and must, be removed efficiently to allow for a
determination that the resultant wood is more like a product than like
a waste.
Because CCA-treated wood can represent up to 30 percent of the C&D
waste stream and, unlike formaldehyde levels which are expected to
decrease over time due to future rules to limit formaldehyde levels in
resinated wood, levels of arsenic and chromium are expected to increase
with continued use of CCA-treated lumber or other copper, chromium, or
arsenical preservatives. As a result, the Agency has determined that
CCA-treated wood must be excluded or removed from C&D debris to ensure
that levels of arsenic and chromium in processed C&D wood remain
comparable to or lower than levels in clean wood and biomass.
Comment: The use of additional technology to identify CCA-treated
wood, such as XRF guns or PAN indicator stains, would add unnecessary
cost and time to the processing of C&D wood. Further, C&D processors
that have tried PAN indicator stains have determined that the stains
produce false positives and do not truly identify or measure arsenic.
Response: The decision to require that operators be trained to
exclude or remove treated wood (with the exception of resinated wood)
as included in the best management practices, is based in part on the
results from the Florida study for evaluating sorting technologies
which showed a high rate of success when extensive training was
provided for visual identification of treated wood; and in part because
both XRF technology and PAN indicator stains are limited in application
when processing large amounts of C&D debris.
The Florida evidence demonstrates that processors who train their
employees to visually recognize treated wood are successful in
excluding or removing CCA-treated wood.\66\ Therefore, by requiring
processors to train their operators as a condition of this categorical
non-waste listing, it will ensure that levels of arsenic and chromium
in processed C&D wood remain comparable to or lower than levels in
clean wood and biomass as more CCA-treated wood is introduced into C&D
debris.
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\66\ Blassino, Monika, et al. ``Methods to Control Fuel Quality
at Wood Burning Facilities.'' Docket ID EPA-HQ-RCRA-2013-0110-0033.
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The proposition that XRF technology and PAN indicator stains would
increase the cost and time associated with processing C&D wood is not
relevant in the Agency's determination to not require their use,
although processors may use such tools. The main point is that these
technologies are not necessary to remove excessive contaminants from
the processed material when visual identification is sufficient.
iv. Trained Operators
Comment: The only elements of training that are appropriate for
regulation are identification of the best management practices, not the
details of how or by whom the training is provided. Processors should
be free to design training programs that work for the individual
processors.
Response: The Agency agrees that the elements of a training program
for processors should not be prescribed by the Agency for the C&D
processing industry. The Agency's decision to not prescribe specific
elements of a training program is based on information in the record
that discusses the variability within the C&D processing industry and
the ability of trained operators to remove the waste materials from the
incoming C&D debris (79 FR 21013, April 14, 2014). Variability refers
to the origin of the material, the amount of material segregation prior
to arrival at a processing facility, whether positive or negative
sorting is used, and the scale of the processing facility.
Rather than prescribing training requirements that may not be
applicable to all C&D processing facilities (i.e., a ``one size fits
all'' approach), the better option is to provide flexibility for
processors to choose how to train their operators. The Agency has
determined that the regulatory language finalized at 40 CFR
241.4(a)(5)(iii) provides the flexibility needed, but also ensures that
C&D processing facilities have trained their operators in accordance
with the best management practice requirements such that the resultant
material is not discarded when combusted and is, therefore, not a
waste.
Comment: The EPA should specify minimum training requirements and
develop requirements similar to those found in the waste combustor
rules (New Source Performance Standards for small municipal waste
combustion units at 40 CFR 60.1155). These provisions address who is to
be trained, when the training must occur by, and what information must
be included in the facility-specific training material. It would be
difficult for C&D processing facilities to implement a training program
without at least minimum requirements set forth in the rule. Further,
combustors and state air agencies must have some way to determine if
the ``trained operator'' requirement has been met.
Response: The Agency does not agree that prescriptive requirements
should be developed for C&D processors that are similar to the training
standards for small municipal waste combustors. The standards
identified in Part 60 for small municipal waste combustors are specific
to the operation of a combustion unit, which is a very technical
operation with regard to combustion engineering, equipment, and
environmental compliance (e.g., air pollution control requirements)
obligations, and thus are appropriate for that industry. Such
specificity and degree of training is not necessary for the C&D
processing industry because its operations are not technologically
comparable. Thus, processors can develop a training program that meets
their specific needs, but that also ensures, through required training
(and best management practices), that the processed C&D wood material
is not discarded when combusted and is, therefore, not a waste.
The mechanism for determining if C&D processors have trained their
operators as required is when the processor certifies, in the written
certification statement that it has used trained operators in its
sorting operations, as well as through the processor's records of
training. For example, should the processed C&D wood be found to
contain contaminants that are not comparable to clean wood and biomass,
then it may be an indication that the processor has not trained its
operators as confirmed by the certification statement. See regulatory
language located at 40 CFR 241.4(a)(5)(iii), which states that
``[p]rocessors must train operators to exclude or remove the materials
as listed in paragraph (a)(5) of this section from the final product
fuel. Records of training must include dates of training held and must
be maintained for a period of three years.''
Comment: In response to solicitation for comment on whether
processors would be required to keep records as a condition of the
categorical listing to demonstrate that such operators have been
formally trained, one comment requested that C&D processors be required
to maintain records of the training they have received, similar to the
requirements found in waste combustor rules (New Source Performance
Standards for small municipal waste combustion units at 40 CFR
60.1355). These provisions require records showing dates of completion
of the training course, documentation
[[Page 6710]]
showing completion of the training course, and records of review of the
training materials.
Response: The Agency agrees that a condition is necessary to
document that operators have been formally trained so that processors
are accountable to their customers when certifying that they have used
trained operators. Thus, separate requirements for processors to
conduct training and maintain records of the training are finalized at
40 CFR 241.4(a)(5)(iii). This requires that processors train their
operators to exclude or remove the materials as listed in paragraph
(a)(5) from the final product fuel. Although not as prescriptive as the
waste combustor rules for similar reasons as discussed above, the
Agency has determined that the following is adequate for demonstrating
compliance with the trained operator requirement: records of training
must include date of training held and must be maintained on-site for a
period of three years.
Comment: Training requirements should only apply to the final
processing facility, which is responsible for the quality of the final
product fuel and with whom the combustor has a contract or purchasing
relationship. C&D wood may be partially sorted at various C&D sites,
then sent to centralized site for final processing and thus, the
upstream facilities should not be subject to training requirements.
Response: The Agency agrees that only those processors who conduct
the final processing steps and are responsible for the quality of the
final product fuel, should be required to train their operators. Any
processor who pre-sorts in preparation for further processing at
another facility would not need to implement a training program for its
operators. It is the final processor who must ensure and certify that
processing has transformed the processed C&D wood into a non-waste
product fuel according to best management practices.
v. Written Certification
Comment: Purchase agreements between the provider of the C&D wood
product and combustor provide sufficient records related to the quality
of the product fuels being combusted at a facility. There is no need to
increase the burden on regulated sources by requiring additional
paperwork in the form of a written certification and personnel
resources for a duplicative task. In addition, the EPA does not need to
prescribe the form of the written certification because purchase
agreements and contracts are common and provide sufficient
documentation.
Response: The Agency agrees that purchase agreements (or contracts)
can provide records related to quality of the fuels being combusted at
a facility. These documents indicate the commitments of the processor
to meet the specifications and to provide quality processed C&D wood.
The proposed rule suggested that such agreements can serve as the
written certification document, but requested comment on whether a
written certification statement, in addition to the contract/purchase
agreement, would be clearer and more effective (79 FR 21016, April 14,
2014).
Although contracts and purchase agreements indicate a commitment to
quality, specifications can vary according to the needs of one
combustor versus another with respect to the extent and type of
contaminant removal required. More importantly, the contracts and
purchase agreements that the Agency has seen do not show that C&D wood
has been processed according to any particular best management
practices and, consequently, cannot ensure that the resulting material
is not a waste when combusted. As one commenter had noted, a mechanism
must be in place which provides assurance that C&D wood is processed
consistently and according to best management practices such that the
final product meets the legitimacy criteria. The Agency concurs with
that comment and is requiring combustors to obtain a written
certification statement from the final processor as part of every new
or modified contract, purchase agreement, or other legally binding
document. This written certification statement must state that the
processed C&D wood has been sorted by trained operators in accordance
with best management practices. See new requirement at 40 CFR
241.4(a)(5)(iv).
The Agency disagrees that a requirement for a combustor to maintain
a contract or purchase agreement in its records poses any additional
burden on the regulated combustion source, since these documents are
typically retained for other business purposes. The combustor would
need only to ensure that the contract or purchase agreement contains
the written certification statement as required by the regulations at
40 CFR 241.4(a)(5)(iv) and maintain in its records according to its
existing regulatory obligations under 40 CFR parts 60 and 63.
Comment: The EPA should prescribe what suffices for the ``written
certification.'' At a minimum, it is recommended that the written
certification include the specific management practices that the
processor has undertaken. The written certification requirement should
also specify how often the combustor must obtain the certification,
whether it is once per load, one certification for each supplier, or in
some other manner or frequency. Specific criteria for the certification
should also include a requirement for an independent third party to
routinely sample the processed C&D wood as part of an ongoing sampling
program, and made it a requisite for the written certification.
Response: The Agency disagrees that the processor should be
required to include the specific best management practices undertaken
in its certification, since the best management practices in 40 CFR
241.4(a)(5) are applicable to all processors. The only distinction is
between the lead exclusion/removal options for positive and negative
sorters, which provide equivalent assurance that lead levels in
processed C&D wood are comparable to or less than clean wood and
biomass.
The Agency does agree, however, with the suggestion to specify how
often and who must submit the certification. This allows the combustor
and regulatory personnel to determine where a shipment of inadequately
processed C&D wood came from. For instance, upon sampling the processed
C&D wood, results indicate that it contains high levels of one or more
contaminants which can be traced back to a specific processor for
investigation of compliance with best management practices. Thus, every
new or modified contract, purchase agreement, or other legally binding
document must include a statement by the final processor that the
processed C&D wood has been sorted by trained operators in accordance
with best management practices. See new regulatory language at 40 CFR
241.4(a)(5)(iv).
Although a third party sampling program could provide further
assurance that contaminated material has been removed from the fuel
stream, the Agency cannot promote such a requirement for combustors
given the data which supports this categorical non-waste listing for
processed C&D wood.\67\ The data demonstrate that processors using best
management practices are meeting the legitimacy criteria absent a
regulatory requirement. The extent to which some processors may not be
meeting the legitimacy criteria is remedied by imposing the conditions
for certification and training
[[Page 6711]]
to identify contaminated materials in the rule. The Agency has
determined that application of the best management practices at 40 CFR
241.4(a)(5), the written certification, and training record provides
sufficient assurance.
---------------------------------------------------------------------------
\67\ A state may choose, however, to require a third party
sampling program as an additional condition of this categorical non-
waste listing.
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Comment: A number of state air permits already prohibit the use of
C&D debris as a fuel type. Under the proposed amendments, these permits
would need to be reopened, public noticed, and be made practically
enforceable.
Response: The Agency agrees that if a combustion facility would
choose to burn C&D wood as a product fuel under this categorical non-
waste listing, the facility's permit would need to be reopened to
include the processed C&D wood as a fuel type. The combustor would be
responsible for documenting the C&D wood's non-waste status according
to 40 CFR 60.2740(u) (Emissions Guidelines) and 40 CFR 60.2175(w) (New
Source Performance Standards) for CISWI units and 40 CFR
63.11225(c)(2)(ii) for area source boilers and 40 CFR 63.7555(d)(2) for
major source boilers.
Comment: The presumption is that air permits will need practically
enforceable requirements addressing the proposed written certification
provisions. The EPA should consider how the written certification would
be enforceable for a small combustion unit that does not qualify for an
air permit.
Response: We are adopting in this final action the approach
discussed in the proposal at 79 FR 21016, under which the written
certification must be included as part of the contract, purchase
agreement, or other legally binding document between the processor and
the combustor. This documentation will also be considered a ``record''
which satisfies the record keeping requirements of section 60.2740(u)
(Emissions Guidelines) and section 60.2175(w) (New Source Performance
Standards) for CISWI units and section 63.11225(c)(2)(ii) for area
source boilers and section 63.7555(d)(2) for major source boilers. Each
of these provisions contains a reference specific to categorical non-
waste determinations under section 241.4 which read: ``[f]or operating
units that combust non-hazardous secondary materials as fuel per
section 241.4 of this chapter, you must keep records documenting that
the material is listed as a non-waste under section 241.4(a) of this
chapter.'' The requirement to document and keep a record exists within
the Federal air regulations and in this case, the record is the written
certification included within the contract, purchase agreement, or
other legally binding document. The air regulations referenced in this
paragraph are enforceable either through air permits when incorporated
or are separately enforceable under the CAA. Thus, an air permit is not
necessary to make a requirement enforceable.
This is consistent with how any major source or area source
combustion unit would document that the NHSM they are burning satisfies
the 40 CFR part 241 requirements for non-wastes. For example, if a
combustor chooses not to comply with the conditions of the categorical
non-waste listing for C&D wood under section 241.4(a)(5), then it could
burn C&D wood on a case-by-case basis provided the combustor documents
in its records that the processed C&D wood has been sufficiently
processed per section 241.2 and that the legitimacy criteria have been
met according to section 241.3(d). The combustor would still be
required to maintain such documentation according to its applicable
Federal recordkeeping requirements (i.e., sections: 60.2740(u),
60.2175(w), 63.11225(c)(2)(ii), or 63.7555(d)(2)).
Comment: Combustors who process C&D wood for their own combustion
should be allowed to self-certify that they have complied with the best
management practices.
Response: The Agency agrees that the ability to self-certify when
the combustor is also the processor is appropriate. However, in the
absence of a contract or purchase agreement, the combustor still must
certify that the processed C&D wood has been sorted by trained
operators in accordance with best management practices. A combustor who
is also the processor is still subject to the requirements and
conditions of this categorical non-waste listing. As the processor, the
requirement to certify that the processed C&D wood has been sorted by
trained operators in accordance with best management practices is
applicable per 40 CFR 241.4(a)(5)(iv). The training requirement is
applicable per 40 CFR 241.4(a)(5)(iii). As the combustor, the
requirement to maintain the written certification statement as part of
its records is applicable regardless of whether or not there is a
contract or purchase agreement. If an inspection by a regulatory
authority reveals that these requirements have not been met, then the
combustor could face enforcement action.
Comment: The EPA should consider that those who pre-sort C&D wood
should not be required to provide certifications, as long as they are
providing wood to C&D processors that meet the requirements of 40 CFR
241.4(a)(5). Similarly, in cases where C&D wood is processed by more
than one processing facility, the certification requirements should
only apply to the final processing facility.
Response: The Agency agrees that the written certification
requirement should only apply to the final processor, as is the case
for only the final processors to use trained operators. The processors
conducting the final processing steps are responsible for the quality
of the final product fuel and for ensuring that processing has
transformed the processed C&D wood into a non-waste product fuel
according to best management practices under 40 CFR 241.4(a)(5). Thus,
any processor who pre-sorts in preparation for further processing at
another facility would not need to provide a written certification to
the combustor. However, the materials at the intermediate processor
facilities would still be solid wastes.
e. Cement Kilns Using Processed C&D Wood
A trade organization, Portland Cement Association (PCA), submitted
comments and information related to how cement kilns use C&D wood.
Their comments are unique in that they base their responses to the
proposal on the operation and capabilities of cement kilns instead of
the criteria that must be met for listing an NHSM as a categorical non-
waste. For example, instead of presenting information on whether the
conditions of the categorical listing are appropriate, PCA comments
that cement kilns have continually shown through decades of testing
that the inherent manufacturing process design is conducive to fully
utilizing the energy value in the alternative fuel, as the process is
based on the high-efficiency combustion in the kiln. Alternative fuels
that are useable in the cement industry may also contain other raw
material constituents, which increase the effectiveness of being able
to use a wider range of heating values that may not be useable in other
combustion processes. Specific comments from the trade organization are
discussed below followed by Agency responses.
Comment: Cement kilns, in particular, are capable of handling a
wide variety of fuels without the need for the extensive processing
that some other types of combustion facilities require. Processing of
C&D wood need only be to the extent necessary to meet the requirements
of the receiving combustion unit. PCA accepts that removing certain
material is necessary to render the non-waste fuel ``legitimate,'' but
for cement kilns several of the listed items, such as
[[Page 6712]]
plastics and paper, are beneficially used in the process. Therefore, it
is not necessary to remove all listed materials due to the unique and
inherent characteristics of the cement production process. Defining
which materials must be removed and the extent to which they need to be
removed should be a function of the unit receiving and combusting the
processed fuels.
Response: The Agency disagrees with this comment. Although cement
kilns can burn a wide variety of materials as fuel regardless of Btu
value and contaminants present, it also lends support for regulating
such cement kilns under the CAA section 129 standards so that they can
appropriately control emissions from these waste-like fuels. This is
not an argument for rendering the materials to be product fuels.
Rather, when evaluating whether an NHSM can be a legitimate product
fuel, discard (i.e., if the material has been discarded in the first
instance, then it must be sufficiently processed) and the legitimacy
criteria are the determinants, not the capabilities of the unit burning
the NHSM.
This final rule applies to cement kilns, as well as all other
facilities that wish to burn processed C&D wood for reasons discussed
in the rule. Thus, cement kilns that wish to take advantage of the
categorical non-waste listing for C&D wood under 40 CFR 241.4(a)(5),
must meet all of the conditions in the rule regardless of the unit's
capabilities. Cement kilns may also proceed on a case-by-case basis,
but would need to determine whether the processed C&D wood has been
sufficiently processed per 40 CFR 241.2 and whether the legitimacy
criteria have been met per 40 CFR 241.3(d).
Comment: With respect specifically to lead in C&D wastes, PCA
encourages the EPA to establish processing criteria (in-lieu of the
case-by-case legitimacy test) that allow lead to be present at levels
that are comparable to the traditional fuels for the receiving
combustion unit. There is variation in the capabilities and other
environmental restrictions of facilities using C&D categorical non-
waste fuel, and cement kilns in particular have the ability to use a
wider variety of fuels. Also, when metals contaminants are grouped, the
lead levels indicated in the variety of C&D in the proposed rule are
not significantly higher than traditional fuel groupings. See
(attached) Table 1 of EPA-HQ-RCRA-2013-0110-0081.\68\ As a
demonstration of the balancing factors specific to cement kilns, there
is a significant body of data and knowledge on the fate of metals in a
cement kiln system that documents the fate of semi-volatile metals
(SVM) and low volatile metals (LVM) that enter the kiln system through
minor concentrations in the raw feed and fuels. The LVMs and other
pollutants with similar properties are directly incorporated into the
clinker being produced.
---------------------------------------------------------------------------
\68\ See Table 1 attached to PCA's comments on the proposed
rule, Docket ID: EPA-HQ-RCRA-2013-0110-0081.
---------------------------------------------------------------------------
Response: Again, when evaluating whether an NHSM can be a
legitimate product fuel, it is discard and the legitimacy criteria that
are the determinants, not the capabilities of the unit burning the
NHSM. In this categorical listing, the pertinent criterion is whether
the lead concentration, or any other contaminant concentration, in
processed C&D wood is comparable to or lower than the contaminant
concentrations in clean wood and biomass. The fact that cement kilns
can burn contaminated, low value fuel does not automatically qualify
them for this categorical non-waste listing.
PCA did provide contaminant data for solid traditional fuels that
are used by cement kilns, by grouping coke, coal, clean wood, and
biomass together and then compared contaminant concentrations to
processed C&D wood. The grouped data show that even when metals are
grouped based upon their behavior in a cement kiln, the SVM group,
which includes lead, still has a higher concentration in processed C&D
wood than in the solid traditional fuel SVM group. The same is also
true for the volatile organic compound group. Although the
concentrations presented may be considered to be within a small
acceptable range,\69\ it is evidence that contaminants are not
comparable even when grouped, and therefore processing according to
best management practices must occur to exclude or remove specific
contaminants (i.e., lead) so that the concentrations in processed C&D
wood would be comparable to solid traditional fuels, assuming that this
was the appropriate traditional fuel comparison for this listing. All
C&D processors must, however, conduct processing according to the best
management practices to ensure a legitimate product fuel is
consistently produced, regardless of the type of combustion unit that
will burn the processed C&D wood.
---------------------------------------------------------------------------
\69\ For a discussion of ``small acceptable range'' with regard
to contaminant comparisons, see 76 FR 15523-24, (March 21, 2011).
---------------------------------------------------------------------------
Comment: Removal of utility poles from the C&D fuel stream is not
necessary for cement kilns when considering balancing factors, and
especially an organic constituent grouping comparison. Cement kilns are
designed and operated to effectively use a variety of fuel streams
under well-controlled conditions and the APCD temperature control used
in kiln operations ensures that dioxin (the contaminant of concern
which can be generated during combustion of pentachlorophenol)
emissions are controlled.
Response: The Agency disagrees with this comment for the reasons
discussed in previous responses. It is a basis for saying that the
cement kilns burning this material or other contaminated materials as
fuel(s) should have permits under section 129 of the CAA so that they
can appropriately control emissions under the CISWI standards. This is
not an argument for rendering the materials to be product fuels. Again,
the information provided to illustrate that cement kilns are highly-
efficient combustors and that the resulting contaminants are either
completely combusted, chemically incorporated into the clinker being
produced, or captured in the kiln system air pollution control device
are not relevant considerations for this categorical non-waste listing.
In order to comply with this categorical listing, all C&D processors
must conduct processing according to the best management practices to
ensure a legitimate product fuel is consistently produced, regardless
of the type of combustion unit that will burn the processed C&D wood.
B. Paper Recycling Residuals Used as Fuel at Paper Recycling Mills
The April 14, 2014 proposed rule described paper recycling
residuals (PRRs) in detail (79 FR 21010-17), explained the status of
PRRs under current rules, discussed comments received during previous
proceedings, as well as the scope of the proposed non-waste listing (79
FR 21017-18). The proposed rationale for the listing is found in the
proposal at 79 FR 21018-20 and is summarized and incorporated into this
final rule, along with all sources referenced in that discussion and
cited therein. The final decision in this rule is based on the
information in the proposal and supporting materials in the rulemaking
record. Any changes made to the final rule are based on the rationale,
as described below.
1. Detailed Description of Paper Recycling Residuals
PRRs are recovered from the paper recycling manufacturing process
at paper recycling mills. The feedstock used in paper recycling
manufacturing process is post-consumer paper, such as
[[Page 6713]]
magazines, newspaper, office paper, and old corrugated containers
obtained through various commercial and residential recycling programs
or purchased from retail establishments.\70\ Some paper recycling
mills' feedstock is limited solely to old corrugated containers. The
primary purpose of the paper recycling manufacturing process is to
generate recovered fibers used to make new paper and paperboard
products. The process also generates PRRs that are secondary materials
not suitable for making new paper products, but are landfilled, sent
for metals recycling, or used as a fuel.\71\
---------------------------------------------------------------------------
\70\ See Attachment 4, page 1, footnote 2 of AF&PA's Comments to
Docket: EPA-HQ-RCRA-2008-0329-0871.
\71\ Because the incoming feedstock may contain a number of
other materials, including metals, metals may also be recovered and
sent for recycling.
---------------------------------------------------------------------------
This final rule addresses only the PRR material that may be used as
a non-waste fuel and be burned under CAA section 112. These PRRs
consist of wet strength short fibers that are not suitable to be
recycled into paper products but are essentially the same as the bark,
biomass and/or coal that are burned, or may be burned, by paper
recycling mills. The short fiber material is combusted as a product
because it is not discarded by the paper recycling mills and meets the
legitimacy criteria, i.e., the material is handled as a valuable
commodity (whether used on-site or shipped off-site to other paper
recycling mills); the material has meaningful heating value; and the
material contains contaminants that are comparable to or lower than the
traditional fuels the units were designed to burn.
In addition to the wet strength short fibers that are recovered
from the paper recycling process and used as fuel, fine screens remove
other non-fiber packaging material that cannot be used for making paper
products, including polystyrene foam, polyethylene film, other
plastics, waxes and adhesives, dyes and ink, clays, starches, and other
filler and coating additives (generally associated with corrugated
paper products). Small amounts of these non-fiber materials may remain
in the product fuel even though the fuel still contains contaminants
comparable to the fuel burned by the recycling plants.
To ensure that excess contaminants are removed and that the
material meets the legitimacy criteria when combusted, the EPA is
issuing a final rule that provides that the material covered by the
categorical listing consists primarily of wet strength short fibers
that contain only small amounts of non-fiber materials including
polystyrene foam, polyethylene film, other plastics, waxes, dyes and
inks, clays, starches, and other filler and coating additives. PRRs
that are not composed primarily of unsuitable wood fibers and contain
more than small amounts of these non-fiber materials would be
considered waste fuels and would not be eligible for this categorical
listing. Thus, not all residuals may be properly burned as a product
fuel.
Paper recycling mills generate between 450,000 and 600,000 tons of
PRRs per year. Approximately 30 percent of the PRRs (135,000 to 180,000
tons) generated are burned for their fuel value at 15 to 20 different
paper recycling mills.\72\ Although there are over 100 paper recycling
mills across the U.S., the majority of mills' boilers use natural gas
and cannot burn solid fuels. As a result, PRRs generated in their
processes generally are landfilled. At any particular paper recycling
mill capable of burning PRRs (i.e., their boilers burn solid fuel),
between 55 to 100 percent of the PRRs generated on-site are burned and
may represent between 20 to 25 percent of the total solid fuel burned
in their solid fuel boilers. Of the 30 percent of PRRs burned as fuel,
no more than 5 percent is burned off-site.\73\ For the PRRs burned off-
site, the proposal stated that in two cases they have been used to
supplement other fuels burned at a commercial cogeneration plant \74\
and a commercial biomass gasification plant.\75\ However, the
information regarding off-site use is based on only these two cases and
the Agency lacks sufficient detail to determine that PRRs, when sent
off-site for energy recovery, other than to those paper recycling mills
within the industry that burn solid fuels (as discussed below),
continue to meet the legitimacy criteria and are not discarded.
---------------------------------------------------------------------------
\72\ Generation, Management, and Processing of Paper Processing
Residuals. Industrial Economics Corporation, October 26, 2012. This
is posted within the docket for the final rulemaking (Docket: EPA-
HQ-RCRA-2013-0110).
\73\ Generation, Management, and Processing of Paper Processing
Residuals. Industrial Economics Corporation, October 26, 2012. This
is posted within the docket for the final rulemaking (Docket: EPA-
HQ-RCRA-2013-0110).
\74\ A cogeneration plant is one that generates electricity and
useful heat (instead of releasing it into the environment via
cooling towers, for example) for heating purposes either on-site or
for use nearby.
\75\ National Council for Air and Stream Improvement, Inc.
Technical Bulletin (TB) No. 806, ``Beneficial Use of Secondary Fiber
Rejects,'' pp. 10-11. See attachment to AF&PA Comments to Docket,
August 3, 2010 (docket document ID number: EPA-HQ-RCRA-2008-0329-
0871).
---------------------------------------------------------------------------
The Agency previously understood PRRs to be a term industry
commonly used to refer to Old Corrugated Container (OCC) rejects.\76\
Since publication of the March 21, 2011 NHSM final rule and the
December 23, 2011 proposal, however, the Agency has received comments
more appropriately identifying OCC rejects as a subset of the PRR
universe. Specifically, the term ``OCC rejects'' refers to only one
grade of recovered fiber, whereas PRRs used as fuel encompass residuals
from all types of fiber grades. Therefore, in the proposal as well as
in the final rule, the Agency is including OCC rejects within the
broader PRR universe in a categorical non-waste determination.
---------------------------------------------------------------------------
\76\ Another term industry often uses when referring to OCC
rejects is ``recycling process residuals'' which was identified in
the March 21, 2011 final rule (76 FR 15486).
---------------------------------------------------------------------------
In the final regulation, the EPA has determined that not all types
of PRRs may be burned as a non-waste (product) fuel, as further
explained below. The PRRs that are eligible to be burned as product
fuels are limited to the wet strength short wood fibers that are
essentially the same as the wood and biomass products burned by the
paper recycling industry and contain only small amounts of certain non-
wood fibers. Thus, based on the rulemaking record, this final rule
represents a further refinement of PRRs that may be burned as a product
fuel.
2. PRRs Under Previous NHSM Rules
a. March 21, 2011 NHSM Final Rule
In the March 21, 2011 NHSM final rule, the EPA stated that OCC
rejects are not discarded when used within the control of the
generator, such as at pulp and paper mills, since these NHSMs are part
of the industrial process. In addition, we stated that the data
submitted during the comment period would seem to suggest that these
materials would or could meet the legitimacy criteria. For example, the
data stated that the contaminant levels in these materials are
comparable to, if not less than, those in traditional fuels used at
pulp and paper mills. With respect to the meaningful heating value
criterion, we noted that, although the Btu value of OCC rejects, as
fired, is lower than 5,000 Btu/lb, it can still meet this criterion if
it can be demonstrated that the combustion unit can cost-effectively
recover energy from these materials. Last, the information submitted
also demonstrated that OCC rejects are managed as a valuable commodity
as they are managed in the same manner as the analogous fuel--bark (76
FR 15456-7, March 21, 2011). Therefore, the Agency generally concluded
that OCC rejects burned as a fuel within the control of the generator
[[Page 6714]]
are not discarded and not solid wastes. The EPA has determined for this
final rule, as discussed further below, that these legitimacy criteria
are indeed met for OCC rejects and are also met for certain other types
of PRRs and, under the conditions of the final rule, these PRRs
(including OCC rejects) can be burned under Clean Air Act section 112.
b. February 2013 NHSM Final Rule
Under the February 2013 final rule, we stated that PRRs (which
include OCC rejects) are not discarded when burned under the control of
the generator. Also, after publication of the March 21, 2011 final rule
and during finalization of the February 7, 2013 final rule, we received
additional information regarding the cost effectiveness of PRRs used as
a fuel, including the amount of PRRs replacing traditional fuels at
paper recycling mills and percentages of residuals generated that are
combusted as a fuel.\77\ Based upon the information received at that
time, we stated that the information supported the categorical listing
of PRRs as a non-waste fuel burned on-site. For PRRs transferred off-
site for use as a fuel, we requested information regarding how and
where they are burned and whether they are managed as a valuable
commodity. We also stated that if the information submitted supports
off-site use as a fuel, the Agency may include those PRRs in a
subsequent rulemaking.\78\
---------------------------------------------------------------------------
\77\ Generation, Management, and Processing of Paper Processing
Residuals. Industrial Economics Corporation, October 26, 2012.
\78\ 78 FR 9111, February 7, 2013 (page 9173).
---------------------------------------------------------------------------
3. Scope of the Proposed Rule and Final Categorical Non-Waste Listing
for Certain PRRs
In the April 14, 2014 proposed rule (79 FR 21005), the Agency
proposed to categorically list PRRs, including OCC rejects, as a non-
waste fuel for those paper recycling mills whose on-site boilers are
designed to burn solid fuels. As stated in the proposal, PRRs generated
during the paper recycling manufacturing process vary in composition.
However PRRs used as fuel are composed primarily of the wet strength
and short wood fibers that cannot be used to make new paper and
paperboard products. Although PRRs are generated at more than 100 paper
recycling mills, only between 15 and 20 mills can burn those materials
as fuel because their boilers are designed to burn solid fuel. The
majority of paper recycling mills cannot burn solid fuels because their
boilers are designed to burn natural gas, and thus, usually send their
PRRs to landfills. Data and information submitted to the Agency by
industry demonstrated that PRRs are not discarded when used as a fuel
on-site within the control of the generator. Further, the data and
information indicated that all three legitimacy criteria are met.
This final rule adopts the listing of PRRs, including OCC rejects
as categorical non-wastes, but makes several changes to the definition
under 40 CFR 241.2 and the listing of PRRs under 40 CFR 241.4 to
clarify that not all residuals are to be burned as a product fuel.
Based on the rulemaking record, the final rule represents a further
refinement of PRRs that may be burned as a non-waste product fuel and
not are not discarded.
Specifically, the proposed rule definition had stated ``Paper
recycling residuals means the co-product material generated from the
paper recycling process and is composed primarily of wet strength and
short wood fibers that cannot be used to make new paper and paperboard
products. The term paper processing residuals also includes fibers from
old corrugated container rejects.''
The definition of PRRs is revised in the final rule to limit the
listing to those PRRs composed of wet strength, short wood fibers, with
only small amounts of non-fiber materials remaining. The definition
also clarifies that PRRs are more appropriately defined as secondary
materials \79\ rather than co-products, generated from the recycling of
paper, paperboard and corrugated containers.
---------------------------------------------------------------------------
\79\ Secondary materials are materials that are not the primary
product of a manufacturing or commercial process, and can include
post-consumer material, off-specification commercial chemical
products or manufacturing chemical intermediates, post-industrial
material and scrap.
---------------------------------------------------------------------------
Use of the term co-products could infer that PRRs constitute a
product fuel that has undergone processing through the paper recycling
manufacturing process. Rather, the paper recycling manufacturing
process generates wood fibers that are used to make new paper and
paperboard products. PRRs are a secondary material or ``byproduct'' of
that manufacturing process and are not discarded when used as a fuel
within control of the generator or sent off-site to other paper
recycling mills within the industry. Essentially, the PRRs are wood
fibers used to make paper but, due to their inferior quality (fiber
size), cannot be used in the paper making process. However, they may be
combusted as a fuel.
The final categorical definition thus states: ``Paper recycling
residuals means the secondary material generated from the recycling of
paper, paperboard and corrugated containers, composed primarily of wet
strength and short wood fibers that cannot be used to make new paper
and paperboard products. Paper recycling residuals that contain more
than small amounts of non-fiber materials including polystyrene foam,
polyethylene film, other plastics, waxes and adhesives, dyes and inks,
clays, starches and other coating and filler material are not paper
recycling residuals for purposes of this definition.''
Revisions are also made to the language for the categorical listing
of PRRs under 40 CFR 241.4: Non-waste Determinations for Specific Non-
Hazardous Secondary Materials When Used as a Fuel. The proposed 40 CFR
241.4(a)(6) had stated ``Paper recycling residuals, including old
corrugated cardboard rejects, generated from the recycling of recovered
paper and paperboard products and burned on-site by paper recycling
mills whose boilers are designed to burn solid fuel.'' As discussed in
the detail in section V.B.4 of this preamble, PRRs with lower heating
values would not be considered discarded since recycling mills' boilers
can cost effectively recover energy from fuels because of the boiler
design itself. The term, ``on-site,'' is deleted to clarify that PRRs
can be combusted at any paper recycling mill with boilers designed to
burn solid fuel, whether on-site at the generating mill, or transferred
to another off-site paper recycling mill. Finally, the language `` . .
. including old corrugated cardboard rejects generated from the
recycling of recovered paper, and paperboard products'' is revised to
parallel the definition of PRRs discussed above.
Thus, the final categorical rule listing states: Paper recycling
residuals generated from the recycling of recovered paper, paperboard
and corrugated containers and combusted by paper recycling mills whose
boilers are designed to burn solid fuel.
The rationale for this final rule is discussed in sections V.B 4
and 5 of this preamble.
4. Rationale for Final Rule
This section discusses the reasoning provided in the proposed rule
and the reasons for the EPA's final determinations for the categorical
listing of PRRs. EPA adopts the reasoning in the proposed rule and
further explains it in this preamble. Further explanations for the
Agency's decision are provided in the Response to Comments below. The
proposal, this section, and the Response to Comments all constitute the
Agency's final determination supporting this rule.
[[Page 6715]]
a. Discard
When deciding whether an NHSM should be listed as a categorical
non-waste fuel in accordance with 40 CFR 241.4(b)(5), the EPA first
evaluates whether or not the NHSM has been discarded in the first
instance and, if not so discarded, whether or not the material could be
considered discarded because it is not legitimately used as a product
fuel in a combustion unit.
Based on the rulemaking record, as discussed below, the Agency has
determined that PRRs used as a fuel are secondary materials recovered
from the paper recycling manufacturing process and are not discarded
when burned within control of the generator or sent off-site to other
paper recycling mills within the industry.
i. Generation of PRRs in the Paper Recycling Manufacturing Process
The paper recycling process is grouped generally into three steps
for purposes of identifying where residuals are generated. In the first
step, bales of the incoming post-consumer paper enter a pulper where
the paper and fiber are wetted and dispersed. A ``debris rope'' or
``ragger'' continuously withdraws strings, wires, and rags that could
otherwise damage the processing equipment. Recovered metals may be sold
to metals recovery facilities, but other materials removed by the
ragger are landfilled because they produce a heterogeneous mixture.
In the second step, materials that remain in the pulper can either
pass to a junk tower for removal of heavy materials and continue to a
drum screen for removal of lighter materials; or go directly to coarse
screens. For those materials that go to the coarse screens, the
resulting rejects may pass through an air separator and/or a high
efficiency cyclone, which further removes materials based on size,
shape and density, such as plastic and unsuitable paper fibers (i.e.,
wet strength and short wood fibers), which make-up the largest portion
of PRRs that would eventually be used as a fuel. These PRRs may be
consolidated with those generated from the junk tower and drum screen,
and sent across a dewatering screen or a screw or ram press to improve
both ease of handling and heating value.
In the final step, a series of fine screens remove any remaining
material that cannot be used to make paper or paperboard products.
These rejected materials include unusable paper fiber fines, clays,
starches, waxes and adhesives, other plastics, filler and coating
additives, and dyes and inks. During this step, reject materials may
either pass along to the wastewater treatment system or become part of
the PRR stream and be used as a fuel. For example, for some grades of
reject materials that are dispersed and small, such as dyes and inks,
waxes, and coating adhesives generated from recovered magazines and
other papers, these materials will not be removed by fine screens and
therefore, enter the wastewater treatment system. In contrast, for
other grades, these light reject materials are captured in fine screens
and can be used as a fuel.\80\ These PRRs would then be consolidated
with the PRRs generated in the preceding step before being conveyed to
the combustion source where they are blended with traditional fuels and
fed to the combustor.
---------------------------------------------------------------------------
\80\ AF&PA Technical Bulletin, Attachment 4, Recycling Process
Residuals, p 2. September 10, 2009.
---------------------------------------------------------------------------
Thus, PRRs are generated at various steps of the paper recycling
process, with the second step producing the bulk of PRRs (i.e.,
unsuitable fibers) destined for use as a fuel. Other non-fiber reject
material (i.e., clays, starches, waxes and adhesives, other plastics,
filler and coating additives, and dyes and inks) contained in the PRRs
would be considered to have a lower heating value than the unsuitable
fibers (see meaningful heating value discussion section V.B.4.b. of
this preamble). All that is generally required for use of PRRs as a
fuel after screening of non-fiber material that cannot be used to make
paper or paperboard products is removal of moisture to increase the Btu
value. Removal of moisture can range from simply allowing PRRs to drain
freely (e.g., for coarse and heavy PRRs) to sending them through a
press (e.g., for smaller and compressible PRRs).
In determining whether PRRs used as a fuel are more product-like
than waste-like, we considered the following attributes:
PRRs are generated as a secondary material from the paper
recycling process that makes new paper and paperboard products and
consist primarily of unsuitable wood fibers that are never discarded
within that paper making process.
When these PRRs are combusted in mill boilers that burn
solid fuel, they recover meaningful heating value;
Paper recycling mills that can combust PRRs burn a
significant amount of what they generate on-site: 55 percent-100
percent.
PRRs are used to replace traditional fuels by as much as
25 percent. Accordingly, the wet strength short fiber PRRs, when
generated at the recycling facility, are more product-like than waste-
like.
ii. Off-Site Combustion of PRRs as Fuel
As discussed in section V.B.5. of this preamble below, the Agency
lacked sufficient information to determine that, after the recycling
process described above, PRRs sent off-site for energy recovery to
facilities outside the paper recycling industry are not discarded. The
Agency stated in the proposal that it was requesting additional
information for PRRs that are burned off-site which demonstrates how
they: (1) Are managed as a valuable commodity (from point of generation
at the paper recycling mill to insertion at the off-site combustor, to
show that discard is not occurring); (2) have a meaningful heating
value; (3) contain contaminants at levels comparable to or lower than
those in traditional fuel(s) which the combustor is designed to burn;
and (4) the types of facilities that combust these PRRs. The agency
received general statements that PRRs are an important part of paper
mills' fuel mix and that third party sellers and purchasers classify
PRRs as fuel. These general statements did not provide the detailed
information the EPA needed to make a reasoned determination that PRRs
sent off-site to entities outside of the paper recycling industry for
combustion constituted discard or product fuel use.
Combustion of PRRs off-site and within the paper recycling
industry, however, is different. For these facilities the Agency
examined the data in the record from previous rulemakings as well as
comments received on the proposal. The Agency has determined that the
listing includes PRRs generated by paper recycling mills that transfer
that material off-site for combustion at the estimated 15-20 paper
recycling mills that have the solid fuel boilers capability of burning
PRRs for energy recovery.
Regarding off-site use, the EPA has discussed in previous NHSM
rulemakings that transferring secondary materials between companies or
facilities does not necessarily mean that the material has been
discarded (see 76 FR 15500, March 21, 2011). The PRRs transferred off-
site to other paper recycling facilities with the capability to combust
these fuels are utilized in the same manner as self-generated paper
recycling residuals, such that they are legitimately burned in solid
fuel boilers that are designed to burn wet fuels (see V.B.4.b. of this
preamble for a discussion of legitimacy criteria for off-site
combustion), with mills optimizing their operation around boiler
design.
[[Page 6716]]
Thus, we have determined that such off-site use does not constitute
discard.
b. Legitimacy Criteria
In determining whether to list PRRs as a categorical non-waste fuel
in 40 CFR 241.4(a), the Agency evaluated the legitimacy criteria in 40
CFR 241.3(d)(1)--that is, whether it is managed as a valuable
commodity, whether it has a meaningful heating value and is used as a
fuel in a combustion unit to recover energy, and whether contaminants
or groups of contaminants are at levels comparable to or less than
those in the traditional fuel the unit is designed to burn. Materials
not meeting these criteria are considered discarded and thus a solid
waste.
i. Managed as a Valuable Commodity
Regarding the first legitimacy criterion, PRRs that are utilized as
a fuel are managed similarly to traditional fuels that are burned at
paper recycling mills such as hogged wood, other clean biomass, or
coal. PRRs are also managed as a valuable commodity when they are
utilized off-site as a fuel within the paper recycling industry. Some
paper recycling mills store PRRs in containers (i.e., from the
container, PRRs can be fed directly to the boiler) or convey them to a
storage pile of traditional solid fuels where they are comingled prior
to burning. Other paper recycling mills convey PRRs directly to the
fuel feed systems. This demonstrates that PRRs are handled promptly and
are managed as a valuable commodity, such that, after generation on-
site, they are fed directly to the boiler, or, when not used
immediately, they are managed in containers and storage piles along
with traditional fuels used on site.
For PRRs utilized as a fuel at off-site paper mills, PRRs are
managed similarly to those generated on-site.\81\ These mills store
PRRs in containers until sufficient quantities are accumulated for
transfer (generally not more than several weeks). Upon arrival at the
combustion mill, the material is managed as described above for on-site
generated PRRs. Because storage does not exceed reasonable time frames,
and management is similar to that of traditional fuels, the Agency has
determined that PRRs burned on-site, as well as at off-site paper
mills, meet this legitimacy criterion. To the extent PRRs do not meet
these general standards for being handled as a valuable commodity, for
example by being allowed to accumulate at the combustor or the
applicable site for unreasonable lengths of time not normally done
within the industry, the categorical listing would not apply.
---------------------------------------------------------------------------
\81\ American Forest and Paper Association phone communication
to EPA, November 11, 2014 included in the docket to the final rule.
---------------------------------------------------------------------------
ii. Meaningful Heating Value and Used as Fuel to Recover Energy
With respect to the second legitimacy criterion, PRRs, as fired and
generated, average 3,700 Btu/lb (or on a dry basis, average 9,100 Btu/
lb).\82\ Although this is lower than the general guideline of 5,000
Btu/lb as fired, the Agency has previously stated that a person may
demonstrate meaningful heating value below 5,000 Btu/lb if the energy
recovery unit can cost effectively recover meaningful energy from the
NHSM (76 FR 15522, March 21, 2011). For PRRs, industry has stated that
paper recycling mills' boilers can cost effectively recover energy at
such heating values because of the boiler design. Specifically, the
mills' solid fuel boilers are designed to burn wet fuels, with each
mill optimizing its operation around boiler design. Typical boilers
used include stoker fired and fluidized bed combustion, which often
have over-fire and/or under-grate air that assists in the efficient
burning of wetter fuels. This allows paper recycling mills to burn
clean cellulosic biomass fuels, such as hog fuel and bark, which is the
primary fuel, as well as PRRs that have varying degrees of moisture
content. If the material being fed to the boiler is too dry, the
combustion temperature can become too hot, requiring operational
adjustments. Consistently wet materials are handled well in these
boilers, leading to fewer temperature swings and minimized boiler
tuning adjustments. Industry also stated that PRRs are analogous to the
primary fuels--hog fuel and bark--used in solid fuel boilers at paper
recycling mills in that they both have high moisture content, usually
>40 percent, and can have Btu values below 5,000 Btu/lb, as fired.
However, PRRs can also have Btu values higher than 5,000 Btu/lb,
depending upon the amount of moisture that has been removed (i.e.,
whether simply draining freely versus pressed), amount of solids, fiber
content, presence of non-fiber packing materials, and combustion
conditions necessary for the effective operation of the boilers.\83\
---------------------------------------------------------------------------
\82\ See AF&PA Comments, p 62, to Docket document ID: EPA-HQ-
RCRA-2008-0329-0871.
\83\ See ``AF&PA-AWC Responses to EPA's Questions on PRR and
Railroad Ties (May 2013).''
---------------------------------------------------------------------------
The EPA finds that the data in the record and the description of
the combustion process of the particular combustors used in the paper
recycling industry confirm that paper mill boilers cost-effectively
recover energy from PRRs used as fuel. These solid fuel boilers are
designed to burn wet fuels, and have over-fire and/or under-grate air
that assists in the efficient burning of wetter fuels. These design
characteristics allow the boilers to burn PRRs (as well as cellulosic
biomass fuels) that have high moisture content.
The meaningful heating values for PRRs generated at off-site paper
recycling mills are consistent with PRRs generated on-site.\84\
Therefore, based on all of the available information, including the
fact that PRRs are primarily wood fibers, the Agency has determined
that PRRs with heating values averaging 3,700 Btu/lb (or on a dry
basis, averaging 9,100 Btu/lb), whether generated on-site or combusted
at off-site paper recycling mills that burn solid fuel, meet the
meaningful heating value legitimacy criterion and are burned as a
product fuel. PRRs that average less than 3,700 Btu/lb (9,100 Btu/lb
dry basis) would not have meaningful heating value for purposes of this
categorical listing, thus the listing would not apply to those
materials.\85\
---------------------------------------------------------------------------
\84\ December 2011 boiler database--Boiler Reconsideration
Proposal Databases: Emissions Database for Boilers and Process
Heaters Containing Stack Test, CEM, & Fuel Analysis Data Reported
under ICR No. 2286.01 & ICR No. 2286.03 (version 7); http://epa.gov/ttn/atw/boiler/boilerpg.html. Data presented is for paper
manufacturing facilities with NAICS code #322 and where fuel type
indicates it refers to the repulped paper fibers that are used as
fuels and include: ``dewatered combustible residues,'' ``hydro
pulper refuse,'' ``OCC rejects,'' ``recycle fiber lightweight
rejects,'' and ``recycled fiber.''
\85\ In determining compliance with this legitimacy criterion
(i.e., average value of 3,700 Btu/lb) the Agency anticipates, for
PRRs generated on-site, that boiler operators will use generator
knowledge in combination with testing on an as needed basis, to
determine Btu value of the PRRs to be burned. For PRRs sent off-site
to another paper recycling mill boiler, the receiving boiler also
may rely on generator knowledge and testing, but may need to test
more frequently based on the consistency of the PRRs composition
from each of the generating mills.
---------------------------------------------------------------------------
See also section V.B.6.a.i. for a discussion of data on facilities
combusting PRRs greater than 3, 700 Btu/lb, and options for facilities
combusting PRRs that are less than that Btu/lb level.
iii. Contaminants Comparable to or Lower Than Traditional Fuels
For the third legitimacy criterion, a contaminant comparison was
conducted to capture data that is representative of all PRR fuel types
within the EPA's Boiler MACT Database. The contaminant data include
PRRs
[[Page 6717]]
combusted both on-site and offsite.\86\ See Table 2 of this preamble.
---------------------------------------------------------------------------
\86\ In response to the ANPRM, commenters submitted data for OCC
rejects, which show that OCC rejects meet the contaminant criterion.
TABLE 2--Comparison of Contaminants in Paper Recycling Residuals (PRRs) and Traditional Fuels
----------------------------------------------------------------------------------------------------------------
Contaminants \a\ Clean wood/biomass Coal \b\ range PRRs \c\ \d\
----------------------------------------------------------------------------------------------------------------
Arsenic..................... ND-298.................... ND-174.................... 0-17.7
Chromium.................... ND-340.................... ND-168.................... <0.17-26.9
Lead........................ ND-340.................... ND-148.................... <0.10-21.1
Mercury \e\................. ND-1.1.................... ND-3.1.................... ND-0.0724
Chlorine.................... ND-5400................... ND-9,080.................. <9.8-7310
Sulfur...................... ND-8700................... 740-61,300................ 237-2500
Antimony.................... ND-26..................... ND-10..................... 0.07-0.9
Beryllium................... ND-10..................... ND-206.................... 0.005-0.329
Cadmium..................... ND-17..................... ND-19..................... 0.03-7.1
Cobalt...................... ND-213.................... ND-30..................... 1.05-1.99
Manganese................... ND-15,800................. ND-512.................... <0.10-21.1
Nickel...................... ND-540.................... ND-730.................... <0.27-25
Selenium \f\................ ND-9...................... ND-74.3................... ND-3.29
Fluorine \g\................ ND-300.................... ND-178.................... <17-<26
----------------------------------------------------------------------------------------------------------------
\a\ All units expressed in parts per million (ppm) on a dry weight basis.
\b\ Coal and Biomass data taken from the EPA document Contaminant Concentrations in Traditional Fuels: Tables
for Comparison, November 29, 2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm. Refer to
document for footnotes and sources of the data.
\c\ December 2011 boiler database--Boiler Reconsideration Proposal Databases: Emissions Database for Boilers and
Process Heaters Containing Stack Test, CEM, & Fuel Analysis Data Reported under ICR No. 2286.01 & ICR No.
2286.03 (version 7); http://epa.gov/ttn/atw/boiler/boilerpg.html. Data presented is for paper manufacturing
facilities with NAICS code #322 and where fuel type indicates it refers to the repulped paper fibers that are
used as fuels and include: ``dewatered combustible residues,'' ``hydro pulper refuse,'' ``OCC rejects,''
``recycle fiber lightweight rejects,'' and ``recycled fiber.''
\d\ CAA 112 Hazardous Air Pollutant (HAP) compounds (e.g., benzene, PAHs) data was not collected in this data
set. HAP compounds may be present.
\e\ Other PRR sample results indicate mercury was non-detect at 0.1 ppm; therefore, some samples could have been
between the highest recorded value of 0.0724 ppm and the non-detect limit of 0.1 ppm.
\f\ Other PRR sample results indicate that selenium was non-detect at 7 ppm; therefore, some samples could have
been between the highest recorded value of 3.29 ppm and the non-detect limit of 7 ppm.
\g\ Fluorine was not detected in any samples; the highest non-detect level is listed.
As discussed in the proposed rule (79 FR 21019, April 14, 2014),
and adopted for the final rule, contaminant concentrations of those
constituents found in Table 2 of this preamble in PRRs were compared to
the levels found in coal and biomass, since both of these traditional
fuels can be burned in boilers at paper recycling mills (see discussion
below regarding combustion of coal). Data show that PRRs, whether
combusted at on-site or off-site paper recycling mills, meet the
contaminant legitimacy criterion. The only reported instance of PRRs
containing a contaminant at levels approaching the highest levels in
coal and biomass is a chlorine concentration at a mill burning OCC
rejects. However, the highest reported value for chlorine in PRRs was
7,310 ppm, which is still below the highest reported value for chlorine
in coal (9,080 ppm). Therefore, the contaminant concentrations for
these contaminants are comparable to the traditional fuels that the
boilers are designed to burn.
With regard to organic HAP present in PRRs, although no specific
data is available on the concentration of these contaminants in PRRs,
limited data has been published on TCLP extracts of OCC rejects that
include several organic HAPs. With the exception of toluene, which was
found at trace levels ranging from <0.001 to 0.004 mg/L, no other HAPs
were detected in the TCLP extracts for OCC rejects.\87\ For purposes of
comparability, a total constituent analysis for toluene would yield a
concentration of up to 0.08 mg/L (or 0.08 ppm), assuming worst case
conditions, which is well below the concentration found in coal at
8.6--56 ppm.88 89 Likewise, the EPA has no reason to find
that results would be any different from the broader universe of PRRs,
since the steps that generate PRRs, which must process multiple grades
of recovered fibers, are equivalent to or more rigorous than those that
generate only OCC rejects (i.e., where the feedstock is limited to
OCCs).
---------------------------------------------------------------------------
\87\ National Council for Air and Stream Improvement, Inc.
Technical Bulletin (TB) No. 806, ``Beneficial Use of Secondary Fiber
Rejects,'' Appendix B, Table B1. TCLP Analysis of OCC Rejects. See
attachment to AF&PA Comments to Docket, August 3, 2010 (document ID
number; EPA-HQ-RCRA-2008-0329-0871).
\88\ Section 1.2 of Method 1311 (Toxicity Characteristic
Leaching Procedure) allows for a total constituent analysis in lieu
of a TCLP analysis. That is, the Agency allows calculating a solid
phase's maximum theoretical concentration expected in a TCLP extract
by dividing a sample's total constituent concentration by 20,
representing 20:1 liquid-to-solid ratio (by weight) employed in the
TCLP procedure. See http://www.epa.gov/osw/hazard/testmethods/faq/faq_tclp.htm. While leaching extract concentrations do not reflect
total constituent concentrations, multiplying the extract
concentration (0.004 ppm) by 20 provides the minimum total
concentration in the waste. However, because toluene is somewhat
soluble in water (515 mg/L at 20[deg] C), the leaching extract
concentration multiplied by 20, is for this constituent, a
reasonable approximation of the total toluene concentration. Water
solubility data can be found at: http://www.epa.gov/chemfact/s_toluen.txt.
\89\ Concentrations in Traditional Fuels: Tables for Comparison,
November 29, 2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm and in the docket (EPA-HQ-RCRA-2008-0329).
---------------------------------------------------------------------------
The contaminant data submitted also compared PRRs to coal as the
traditional fuel for comparison. As stated in section V.B.1. of this
preamble, PRRs may represent between 20 to 25 percent of the total
solid fuel burned in their solid fuel boilers, thus, units combusting
PRRs may also be designed to burn other solid fuels such as coal. As
shown in Table 2 of this preamble, PRR concentrations were comparable
to those in coal as well as clean wood/biomass. Under the final rule,
therefore, units that are designed to burn clean wood/biomass and are
combusting PRRs in boilers that recover meaningful heating value from
those residuals, may
[[Page 6718]]
in addition burn coal if the unit is designed to burn that solid fuel.
5. Summary of Comments Requested
The proposed rule identified several issues pertaining to the
listing of PRRs as categorical non-wastes and requested comment on
those issues which are summarized below.
Meaningful heating value. Although the heating value is less than
the general benchmark of 5,000 Btu/lb, the Agency determined that PRRs
meet the meaningful heating value criterion since paper recycling mills
have demonstrated that they can cost effectively recover energy from
those materials. The Agency requested information regarding the
percentages of non-fiber materials that typically make-up PRRs; such
information would be useful in understanding the variability of the
PRR's heating value since PRRs that contain a larger portion of wood
fibers could be expected to have a higher heating value. Those non-
fiber materials consist of light reject material captured in fine
screens remaining after the processing steps described in section
V.B.1. of this preamble and consist of polystyrene foam, polyethylene
film, other plastics, waxes and adhesives, dyes and ink, clays,
starches, and other filler and coating additives.
No information was received from industry regarding the percentage
of these non-fiber materials. Lacking such information, the Agency
finds that PRRs with higher amounts of non-fiber materials would have a
lower heating value. Combustion of more than small amounts of these
materials with these low heating values are discard of those materials
and burning of a waste fuel. The Agency is thus revising the definition
of PRRs to clarify that the categorical non-waste listing applies only
to PRRs composed primarily of wet strength and short wood fibers that
do not contain more than small amounts of polystyrene foam,
polyethylene film, other plastics, waxes and adhesives, dyes and ink,
clays, starches, and other filler and coating additives.
Other discarded materials. Although the data provided in the boiler
database regarding the level of contaminants in the PRRs indicate that
they meet the contaminant legitimacy criterion, evaluations conducted
for the development of the boiler database suggested that, in a few
cases, OCC rejects used as feedstock at paper recycling mills contain
other discarded materials. For example, some paper recycling mills may
accept cardboard containers from off-site that have not been completely
emptied of their contents or otherwise are contaminated with foreign
materials. The Agency was interested in receiving information regarding
how common this practice is, the composition of the contents/materials,
any precautions taken to ensure that the contents/materials do not
contribute to unacceptable contaminant concentrations, and whether any
additional conditions should be imposed to ensure that such cardboard
containers have been emptied. In other words, any remaining contents/
materials should only be incidental.
Based on information received, and examination of the few cases in
the boiler database of foreign materials present in OCC rejects
undergoing recycling,\90\ the Agency concluded that such situations are
incidental, and no specific conditions to ensure the containers are
empty are warranted, other than to describe the incidental
contamination as part of the categorical listing.
---------------------------------------------------------------------------
\90\ December 2011 boiler database--Boiler Reconsideration
Proposal Databases: Emissions Database for Boilers and Process
Heaters Containing Stack Test, CEM, & Fuel Analysis Data Reported
under ICR No. 2286.01 & ICR No. 2286.03 (version 7); http://epa.gov/ttn/atw/boiler/boilerpg.html.
---------------------------------------------------------------------------
PRRs burned off-site. The Agency considered whether to expand the
categorical listing to include PRRs that are burned as a fuel product
off-site. According to earlier comments submitted on previous NHSM
rulemakings, OCC rejects have been used as a supplemental fuel in two
plants: a commercial biomass gasification plant and a commercial
cogeneration plant (where OCC rejects provide 3 to 4 percent of the
total fuel input at the latter plant).\91\ An intermediary company
takes the OCC rejects from three mills and processes them by removing
large pieces of plastic, shredding, and drying the remaining residuals
and delivers the OCC reject fuel to the plants.\92\ Thus, contrary to
what the Agency previously concluded based on the information it had at
the time of the March 21, 2011 final rule,\93\ in these two instances,
the OCC rejects burned off-site in commercial power plants can be
managed more like a non-waste fuel than a waste fuel.
---------------------------------------------------------------------------
\91\ In the December 23, 2011 final NHSM rule (76 FR 15487), the
agency previously believed these facilities to be municipal or
commercial incinerators. Subsequent comments have identified these
facilities to be commercial biomass and cogeneration plants.
\92\ National Council for Air and Stream Improvement, Inc.
Technical Bulletin (TB) No. 806, ``Beneficial Use of Secondary Fiber
Rejects,'' pp. 10-11. See attachment to AF&PA Comments to Docket,
August 3, 2010 (document ID: EPA-HQ-RCRA-2008-0329-0871).
\93\ The Agency had stated that limited information indicated
that OCC rejects are ``burned in municipal or commercial energy
facilities (which appear to be municipal or commercial incinerators)
and thus, would clearly indicate discard . . .'' 76 FR 15487.
---------------------------------------------------------------------------
While the information generally indicates that these PRRs are
managed much the same way as those burned on-site, it is based on only
two cases and lacks sufficient detail to determine that PRRs when sent
off-site for energy recovery continue to meet the legitimacy criteria
and are not discarded. Therefore, we requested additional information
for PRRs that are burned off-site which demonstrates how they: (1) Are
managed as a valuable commodity (from point of generation at the paper
recycling mill to insertion at the off-site combustor, to clearly show
that discard is not occurring); (2) have a meaningful heating value;
(3) contain contaminants at levels comparable to or lower than those in
traditional fuel(s) which the combustor is designed to burn; and (4)
the types of facilities that combust these PRRs.
Commenters did not provide data regarding how that material meets
other legitimacy criteria including management of the fuel as a
valuable commodity and meaningful heating value. In particular, the
Agency did not receive information that facilities outside the paper
recycling industry combusted PRRs in the solid fuel boilers designed to
burn wet fuels characteristic of paper recyclers. The Agency has
determined that the listing be revised from the proposal to include
PRRs generated by paper recycling mills that do not have the capability
to combust the materials on-site, but are transferred off-site for
combustion at the estimated 15-20 paper recycling mills that do have
the solid fuel boilers capable of burning PRRs for energy recovery. The
PRRs transferred off-site to other paper recycling facilities with the
capability to combust these fuels are utilized in the same manner as
self-generated paper recycling residuals i.e., they are legitimately
burned for fuel in solid fuel boilers that are designed to burn wet
fuels, with mills optimizing their operation around boiler design.
Thus, we have determined that such use does not constitute discard.
6. Responses to Comments
a. Specific Request for Comments
i. Meaningful Heating Value
Comment: The EPA appropriately determined that PRRs have meaningful
heat value and are burned as a fuel to specifically recover energy in
solid fuel boilers at paper recycling facilities. Mill boilers are
specifically designed to produce heat by combusting materials
[[Page 6719]]
such as PRRs and use wet fuels to regulate temperature. Since virgin
biomass, as fired, can contain up to 60 percent moisture and have BTU
values as low at 3,500 MMBtu/lb, there should be no Btu threshold for
PRRs.
Response: The EPA finds that the data in the record and the
description of the combustion process of the particular boilers used in
the paper recycling industry confirms that paper mill boilers cost-
effectively recover energy from PRRs used as fuel, thus meeting the
meaningful heating value criterion.
The mills' solid fuel boilers are designed to burn wet fuels, with
each mill optimizing its operation around boiler design. Typical
boilers used include stoker fired and fluidized bed combustors, which
often have over-fire and/or under-grate air that assists in the
efficient burning of wetter fuels. If the material being fed to the
boiler is too dry, the combustion temperature can become too hot,
requiring operational adjustments. Consistently wet materials are
handled well in these boilers, leading to fewer temperature swings and
minimized boiler tuning adjustments.
PRRs are also analogous to the primary fuels--hog fuel and bark--
used in solid fuel boilers at paper recycling mills in that they both
have high moisture content, usually >40 percent, and can have Btu
values below 5,000 Btu/lb, as fired. However, PRRs can also have Btu
values higher than 5,000 Btu/lb, depending upon the amount of moisture
that has been removed (i.e., whether simply draining freely versus
pressed), amount of solids, fiber content, presence of non-fiber
packing materials, and combustion conditions necessary for the
effective operation of the boilers.\94\
---------------------------------------------------------------------------
\94\ See ``AF&PA-AWC Responses to EPA's Questions on PRR and
Railroad Ties (May 2013).''
---------------------------------------------------------------------------
To further understand the variability of the PRR's heating value,
the Agency requested information regarding the percentages of non-fiber
materials (e.g., polystyrene foam, polyethylene film, other plastics,
waxes and adhesives, dyes and inks, clays, starches, and other filler
and coating additives, etc.). As discussed in section V.B.4. of this
preamble, while unsuitable paper fibers (i.e., wet strength and short
wood fibers), make up the largest portion of PRRs destined for fuel
use, PRRs also contain these non-fiber materials that cannot be used to
make paper or paperboard products. PRRs that contain a larger portion
of wood fibers could be expected to have a higher heating value.
However, no information was received from industry regarding the
percentage of these non-fiber materials as the Agency requested.
Lacking such information, the Agency finds that PRRs with higher
amounts of non-fiber materials would have a lower heating value (i.e.,
consist predominantly of clays, pigments and inorganic fillers, which
have little or no heat content). Combustion of more than small amounts
of these materials which have low heating values constitute discard and
thus burning of a waste fuel. The Agency has revised the definition of
PRRs to clarify that the categorical non-waste listing applies only to
PRRs composed primarily of wet strength and short wood fibers that do
not contain more than small amounts of polystyrene foam, polyethylene
film, other plastics, waxes and adhesives, dyes and ink, clays,
starches, and other filler and coating additives. (See also comment
response regarding PRR definition below.)
The Agency disagrees that heating value is irrelevant. As discussed
in section V.B.4., based on all of the available information, including
the fact that PRRs are primarily wood fibers, the Agency has determined
that PRRs with heating values averaging 3,700 Btu/lb (or on a dry
basis, averaging 9,100 Btu/lb), whether generated on-site or combusted
at off-site paper recycling mills that burn solid fuel, meet the
meaningful heating value legitimacy criterion and are burned as a
product fuel. PRRs that average less than 3,700 Btu/lb (9,100 Btu/lb
dry basis) would not have meaningful heating value for purposes of this
categorical listing, thus, the listing would not apply to those
materials.\95\
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\95\ In determining compliance with this legitimacy criterion
(i.e., average value of 3,700 Btu/lb) the Agency anticipates, for
PRRs generated on-site, that boiler operators will use generator
knowledge in combination with testing on an as needed basis, to
determine Btu value of the PRRs to be burned. For PRRs sent off-site
to another paper recycling mill boiler, the receiving boiler also
may rely on generator knowledge and testing, but may need to test
more frequently based on the consistency of the PRRs composition
from each of the generating mills.
---------------------------------------------------------------------------
The EPA realizes that some facilities may be combusting PRRs that
average less than 3,700 Btu/lb. However, data in the record indicates
that a majority of facilities combust PRRs with heating values greater
than 3,700 Btu/lb. Technical data on PRRs cited by industry \96\ shows
that five of the eight facilities (that included moisture content and
heating value data) have as-received heating values greater than 3,700
Btu/lb with an average per facility of 3915 Btu/lb. Review of
facilities combusting PRRs in the Boiler MACT Database indicates six of
eleven facilities have PRR as-received heating values equal to or
greater than 3700 Btu/lb with an average per facility of 4777 Btu/lb
(in other terms, 30 of 55 unique data points are above 3,700 Btu/lb).
---------------------------------------------------------------------------
\96\ NCASI Technical Bulletin 806 included in docket number EPA-
HQ_RCRA-0329-0871.
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Facilities combusting PRRs that do not meet the average 3,700 Btu/
lb meaningful heating value criterion for the categorical PRR non-waste
listing have several options to continue to burn those PRRs. Combustors
may take additional measures to meet the average 3,700 Btu/lb level by
further drying the PRRs or removing low heat content non-fiber
material. Combustors burning lower BTU value PRRs may also make self-
determinations under 40 CFR 241.3(b) that the material is a non-waste
fuel and meets legitimacy criteria including meaningful heating value.
Finally, combustors can continue to burn those lower BTU PRRs under the
section 129 standards of the CAA.
ii. Other Discarded Materials
Comment: A commenter noted that the proposal stated that
evaluations conducted for the development of the boiler database
suggested that, in a few cases, OCC rejects being recycled contain
other discarded materials. For example, some paper recycling mills may
accept cardboard containers from off-site that have not been completely
emptied of their contents or otherwise are contaminated with foreign
materials. The Agency was interested in receiving information regarding
how common this practice is, the composition of the contents/materials,
any precautions taken to ensure that the contents/materials do not
contribute to unacceptable contaminant concentrations, and whether any
additional conditions should be imposed to ensure that such cardboard
containers have been emptied.
The commenter went on to say, however, that the EPA does not need
to be concerned about other materials contained in PRRs, and any
unacceptable contaminant concentrations related to such materials. For
sales transactions that are direct with suppliers, the mills and
suppliers rely on the Scrap Specification Circular \97\ to assure the
quality of the bales of recovered fiber received. There are practices
in place to reduce the likelihood of contamination in the incoming
bales. In isolated instances where bales contain unwanted materials,
the bale may be rejected; the bale may be accepted but rejected after
[[Page 6720]]
further inspection; or the bale may be used and the contaminants
removed during processing. Given the amount of water and fiber that are
processed together, it is unlikely that the contaminants would be at a
level of concern. Rejected bales and boxes are sent to a landfill and
are not used as fuel. Additional testing requirements are in place to
assure that packaging is of suitable purity for mills producing
recycled paper that will be used for food-contact packaging.
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\97\ Standard specifications for buying and selling of materials
issued by the Institute of Scrap Recycling Industries Inc.
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Response: The Agency disagrees that the presence of foreign
materials in OCC rejects undergoing recycling should not be of concern.
Combustion of such materials remaining in the PRRs after recycling
constitute burning of a solid waste; and as such, units burning those
materials would be subject to CAA section 129 standards. Information
received from commenters states that the inspection practices described
above prevent the introduction of other discarded materials and are
standard practice. Based on that information, and examination of the
few cases in the boiler database of foreign materials present in OCC
rejects undergoing recycling,\98\ the Agency has concluded that such
situations are incidental, and no specific conditions to ensure the
containers are empty are warranted, other than to describe the
incidental contamination as part of the categorical listing. The Agency
reiterates, however, that the combustion of discarded materials in PRRs
would result in the application of the CAA section 129 standards.
---------------------------------------------------------------------------
\98\ December 2011 boiler database--Boiler Reconsideration
Proposal Databases: Emissions Database for Boilers and Process
Heaters Containing Stack Test, CEM, & Fuel Analysis Data Reported
under ICR No. 2286.01 & ICR No. 2286.03 (version 7); http://epa.gov/ttn/atw/boiler/boilerpg.html.
---------------------------------------------------------------------------
iii. Combustion Off-Site
Comment: Under D.C. Circuit precedent, the use of PRRs by the paper
industry should not be treated any differently from the use of the PRRs
by the generator. AMC I, at 1186, 1192-93 (materials recycled in an
ongoing industrial process are not discarded and materials that are
destined for beneficial use by the generating industry itself are not
waste because such materials are not part of the waste disposal
problem). Mills that do not combust solid fuel can and do send PRRs to
mills that have that capability.
Response: For combustion at PRRs within the paper recycling
industry, the Agency examined the data in the record from previous
rulemakings as well as comments received on the proposal. The Agency
has determined that it is appropriate to revise the proposed to include
PRRs generated by paper recycling mills that are transferred off-site
to other paper recycling mills for energy recovery. This determination
addresses those generators that do not have the capability to combust
the materials on-site, but who wish to transfer their PRRs off-site for
combustion at the estimated 15-20 paper recycling mills that do have
the solid fuel boilers capable of burning PRRs for energy recovery. The
PRRs transferred off-site are utilized in the same manner as self-
generated paper recycling residuals i.e., they are legitimately burned
for fuel in solid fuel boilers that are designed to burn wet fuels,
with mills optimizing their operation around boiler design. Thus, we
have determined that such use does not constitute discard.
While the EPA agrees that, under certain circumstances, PRRs may be
transferred as a product fuel within the paper recycling industry (and
are not discarded), the Agency disagrees with the comment's
characterization of the AMC I case. AMC I does not directly apply in
this instance. The AMC I holding stated that material reclaimed in a
continuous industrial process could not be a waste. It did not
specifically cover materials transferred between facilities, even in
the same industry, particularly a material reclaimed from recycled
paper but then used for another purpose--burning as a fuel.
Comment: PRRs are an important part of the fuel mix for facilities
other than paper recycling mills, and third party sellers and
purchasers classify PRR as fuel. Limiting the ability to utilize PRRs
as fuel to those paper mills that have on-site boilers that are
designed to burn solid fuel is arbitrary and unnecessary. Many
facilities routinely purchase and transport non-hazardous secondary
materials generated at a third party location to their sites for
legitimate use as fuel. These materials are sourced and purchased as
fuels from others and thereby satisfy the first two legitimacy
criteria: (1) Be handled as a commodity with an established market; and
(2) have sufficient Btu content to support their use as fuel. The third
legitimacy criterion (contain contaminants that are not significantly
higher in concentration than traditional fuel products), is addressed
in the user's air permit rather than in a duplicative non-waste
determination process.
Several mills have also partnered with local utilities that can use
the PRRs as fuel. Further, requiring an off-site facility to petition
the EPA before it could acquire and burn PRRs will add significant
administrative costs. Small paper mills typically do not have solid-
fuel boilers and therefore look to off-site partners to find
appropriate uses for their PRRs.
Response: The Agency disagrees that the categorical non-waste
determination should include PRRs combusted at facilities that are not
paper recycling mills, and lacks sufficient information to determine
that combustors outside the paper recycling industry continue to meet
the legitimacy criteria and are, therefore, not discarded.
The Agency clearly stated its need for additional information
regarding residuals that are burned as fuel at facilities not under the
control of the generator. The EPA requested detailed information about
how PRRs are managed as a valuable commodity (from point of generation
at the paper recycling mill to insertion at the off-site combustor);
have a meaningful heating value; and contain contaminants at levels
comparable to or lower than those in traditional fuel(s) which the
combustor is designed to burn.
General statements that PRRs are an important part of the fuel mix
outside the paper recycling industry, and that third party sellers and
purchasers classify PRRs as fuel, is not the relevant consideration for
deciding whether material, even a fuel, is burned as a waste.
Moreover, merely saying that a material is considered a fuel does
not address the issue of whether that fuel is a waste. Wastes may be
burned as fuels, but they still are wastes. The commenters did not
provide data regarding how that material meets other legitimacy
criteria including management of the fuel as a valuable commodity and
meaningful heating value. In particular, the Agency did not receive
information that facilities outside the paper recycling industry
combusted PRRs in the solid fuel boilers designed to burn wet fuels
characteristic of paper recyclers. While the EPA may accept the low Btu
value of PRRs as a legitimate product fuel for paper recycling
facilities, the same kind of low Btu value fuel could be a waste at
other facilities. At those facilities, any low Btu value material could
simply be thrown in as a waste.
In addition, the EPA rejects arguments that the Agency should rely
on air permit emissions limitations in determining whether material is
a waste. Prior to establishing emission limits, the EPA first needs to
determine whether the material is discarded in order to decide whether
boiler emission standards (under CAA section 112 regulations) or CAA
section 129 standards would apply.
[[Page 6721]]
PRRs sent off-site for combustion to facilities outside the paper
recycling industry will require submittal and approval of a non-waste
petition under 40 CFR 241.3(c) to be burned at CAA section 112
facilities.
Comment: The EPA should include cement kilns as an appropriate off-
site end-user for utilization of PRR categorical non-waste fuels.
Cement kilns are capable of handling a wide variety of fuels without
the need for extensive processing that some other combustion facilities
require in order for the materials to be legitimate. A table comparing
the contaminant levels in PRRs to those found in the solid traditional
fuels used at cement kilns, including coal and coke was provided.\99\
The table shows that contaminant concentrations in the PRR categorical
non-wastes are less than the range maximum for coal and coke, which are
the solid traditional fuels used in cement kilns. Meaningful heating
values of 3,700 Btu/lb are also well within the design and operating
range of cement kilns. Some kilns inject water for NOX
control and the same effect could be achieved using a high moisture
fuel material. There is variation in the capabilities and other
environmental restrictions of facilities capable of using PRR
categorical non-waste fuels, and cement kilns in particular generally
have the ability to use a wider variety of fuels. These materials have
great value to the energy intensive cement industry, which manages
alternative fuels as valuable commodities.
---------------------------------------------------------------------------
\99\ Included in the docket for the final rule.
---------------------------------------------------------------------------
Response: The Agency disagrees that the categorical non-waste
determination should include PRRs transported offsite and combusted at
cement kilns. The information presented on cement kilns lacks
sufficient detail overall to determine that such PRRs continue to meet
the legitimacy criteria and are not discarded. The information that was
received included the referenced table showing that contaminant
concentrations in the PRRs combusted in cement kiln are less than the
range for solid fuels, as well as cement kilns overall capability to
use a wide range of materials with lower heating values that may not be
practical in other combustion processes. However, no information was
provided, as requested, as to how PRRs are managed as a valuable
commodity from the point of generation at the paper recycling mill to
insertion at the off-site combustor (i.e., cement kiln) to clearly show
that discard is not occurring.
The arguments that cement kilns are capable of handling a wide
variety of fuels without the need for extensive processing that some
other facilities require and that processing needs to be flexible and
appropriate to the receiving combustion unit could demonstrate that
cement kilns can burn waste fuels as well as non-waste fuels. The
commenter also misunderstands the ``processing'' requirements under 40
CFR part 241 standards. Under 40 CFR 241.3(b)(4), when discarded, NHSMs
must be processed i.e., ``transformed'' into a non-waste fuel, in
accordance with the processing definition at 40 CFR 241.2, and meet
legitimacy criteria prior to combustion. The capabilities of the
combustion unit are not a factor in determining whether the material
has been sufficiently processed.
To reiterate, these comments generally confirm that cement kilns
are capable of burning wastes as fuels. If they do, they should be
regulated under section 129 of the Clean Air Act.
b. Definition of PRRs
Comment: The EPA proposes to define PRRs as follows: ``Paper
recycling residuals means the co-product material generated from the
paper recycling process and is composed primarily of wet strength and
short wood fibers that cannot be used to make new paper and paperboard
products. The term paper processing residuals also includes fibers from
old corrugated container rejects.'' Proposed 40 CFR 241.2.
It is our understanding that the EPA does not intend to distinguish
between residuals from recycling paper and residuals from recycling old
corrugated containers and that the EPA recognizes that these residuals
are composed primarily of fibers but that there could include other
materials from the paper and corrugated cardboard bales. As the EPA has
noted: ``For example, use of old corrugated cardboard (OCC) rejects
(clay, starches, other filler and coating materials, as well as fiber)
are not discarded when used within the control of the generator, since
these secondary materials are part of the industrial process. OCC
rejects can include, and are usually burned in conjunction with, other
fuels (such as bark) at pulp and paper mills that recycle fibers. 76 FR
at 15472.
To apply this understanding to both paper and paperboard, we
suggest the following revision to the definition: Paper recycling
residuals means the co-product material generated from the recycling of
paper, paperboard, and corrugated containers and is composed primarily
of wet strength and short wood fibers that cannot be used to make new
paper and paperboard products.
Response: The EPA disagrees that the definition of PRR should not
distinguish between wet strength and short wood fibers and the non-
fiber material contained in OCC rejects (clays, starches, and other
filler and coating additives) as well as other non-fiber material
(polystyrene foam, polyethylene film, other plastics, waxes and
adhesives, dyes and ink). As discussed in section V.B.4. of this
preamble, the Agency finds that PRRs that are not composed primarily of
wood fibers unsuitable for making paper and contain more than small
amounts of certain non-fiber materials would be considered waste fuels
and would not be eligible for this categorical listing.
As discussed in the comment above regarding meaningful heating
value, no specific information was received from industry regarding the
percentage of these non-fiber materials as the Agency requested.
Lacking information to the contrary, the Agency finds that PRRs with
higher amounts of non-fiber materials would have a lower heating value.
Combustion of materials with low heating values would be considered
discard of those materials and burning of a waste fuel. The Agency is
thus revising the proposed definition of PRRs and clarifying the
previous statements at 76 FR 15472, March 21, 2011, regarding non-fiber
material contained in OCC rejects to make clear that the categorical
non-waste listing applies only to PRRs composed primarily of wet
strength and short wood fibers that do not contain more than small
amounts of polystyrene foam, polyethylene film, other plastics, waxes
and adhesives, dyes and ink clays, starches, and other filler and
coating additives.
The definition also clarifies that PRRs are more appropriately
defined as secondary materials \100\ rather than co-products, generated
from the recycling of paper, paperboard and corrugated containers. Use
of the term co-products could infer that PRRs are a product fuel that
has undergone processing through the paper recycling manufacturing
process. Rather, the paper recycling manufacturing process primarily
makes wood fibers that are used to make new paper and paperboard
products. PRRs are a secondary material or ``byproduct'' of that
manufacturing process and are not discarded when used as a fuel within
control of the generator or sent off-site to other paper recycling
mills within the industry and legitimately
[[Page 6722]]
burned in solid fuel boilers that are designed to burn wet fuels.
---------------------------------------------------------------------------
\100\ Secondary materials are materials that are not the primary
product of a manufacturing or commercial process, and can include
post-consumer material, off-specification commercial chemical
products or manufacturing chemical intermediates, post-industrial
material and scrap.
---------------------------------------------------------------------------
The revised definition of Paper recycling residuals at 40 CFR 241.2
appears in the regulatory language at the end of this document.
C. Creosote-Treated Railroad Ties (CTRTs)
The April 14, 2014 proposed rule described CTRTs in detail,
explained the status of CTRTs under current rules, discussed comments
received during previous proceedings, and discussed the scope of the
proposed non-waste listing (79 FR 21021-23). The proposed rationale for
the listing is found in the proposal at 79 FR 210 23-28 and is
summarized and incorporated into this final rule, along with all
sources referenced in that discussion and cited therein. The final
decision in this rule is based on the information in the proposal and
supporting materials in the rulemaking record. Any changes made to the
final rule are based on the rationale, as described below.
1. Detailed Description of CTRTs
Railroad ties are typically comprised of North American hardwoods
that have been treated with creosote. Creosote was introduced as a wood
preservative in the late 1800's to prolong the life of railroad ties.
Creosote-treated wood ties remain the material of choice by railroads
due to their long life, durability, cost effectiveness, and
sustainability. As creosote is a by-product of coal tar distillation,
and coal tar is a by-product of making coke from coal, creosote is
considered a derivative of coal. The creosote component of CTRTs is
governed by the standards established by the American Wood Protection
Association (AWPA). AWPA has established two blends of creosote, P1/13
and P2.\101\ Railroad ties are typically manufactured using the P2
blend that is more viscous than other blends.
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\101\ AWPA Standard P1/P13 and P2 provide specifications for
coal-tar creosote used for preservative treatment of piles, poles
and timber for marine, land and freshwater use. The character of the
tar used, the method of distillation, and the temperature range in
which the creosote fraction is collected all influence the
composition of the creosote, and the composition may vary with the
requirement of standard specifications. April 2010. Forest Products
Laboratory. 2010 Wood Handbook. General Technical Report FPL_GTR-
190. Madison, WI.
---------------------------------------------------------------------------
CTRTs are railroad crossties removed from service and processed
prior to being used as a fuel. Approximately 17 million crossties are
removed from service each year. About one third of the removed CTRTs
are used for landscaping, with the majority of the remaining two thirds
used for energy recovery. Because of its high energy content, CTRTs can
be used for heat and energy recovery in combustion units as a
nonhazardous biomass alternative to fossil fuel.\102\
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\102\ American Forest & Paper Association, American Wood
Council--Letter to EPA Administrator, December 6, 2012.
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Most of the energy recovery with crossties is conducted through
three parties: The generator of the crossties (railroad or utility);
the reclamation company that sorts the crossties, and in some cases
processes the material received from the generator; \103\ and the
combustor as third party energy producers. Typically, ownership of the
crossties is transferred directly from the generator to the reclamation
company that sorts materials for highest value secondary uses, and then
sells the products to end-users, including those combusting the
material as fuel. Some reclamation companies sell CTRTs to processors
who remove metal contaminants and grind the ties into chipped wood.
Other reclamation companies have their own grinders, do their own
contaminant removal, and can sell directly to the combusting
facilities. Information submitted to the Agency states there are
approximately 15 CTRT recovery companies in North America with industry
wide revenues of $65-75 million. Members of AF&PA report that the value
of CTRTs is underscored by the approximately $20-$30 per ton paid for
CTRTs which can sometimes be a premium price compared to certain hog
fuels (untreated clean wood residues from sawmills).\104\
---------------------------------------------------------------------------
\103\ In some cases, the reclamation company sells the crossties
to a separate company for processing.
\104\ American Forest & Paper Association, American Wood
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------
After crossties are removed from service, they are transferred for
sorting/processing, but in some cases, they may be temporarily stored
in the railroad rights-of-way or at another location selected by the
reclamation company. One information source stated that when the
crossties are temporarily stored, they are stored until their value as
an alternative fuel can be realized, generally through a contract
completed for transferal of ownership to the reclamation contractor or
combustor.\105\ This means that not all CTRTs originate from crossties
removed from service in the same year; some CTRTs are processed from
crossties removed from service in prior years and stored by railroads
or removal/reclamation companies until their value as a landscaping
element or fuel could be realized.
---------------------------------------------------------------------------
\105\ M.A. Energy Resources LLC, Petition submitted to
Administrator, EPA. February 2013.
---------------------------------------------------------------------------
CTRTs are transferred to reclamation companies, typically by rail.
The processing of the crossties into fuel by the reclamation/processing
companies involves several steps. Metals (spikes, nails, plates, etc.)
are removed using a magnet, occurring one or several times during the
process. The crossties are then ground or shredded to a specified size
depending on the particular needs of the end-use combustor, with chip
size typically between 1-2 inches. This step occurs in several phases,
including primary and secondary grinding, or in a single phase. Once
the crossties are ground to a specific size, additional metal is
removed if present and there is further screening based on the
particular needs of the end-use combustor. Depending on the
configuration of the facility and equipment, screening occurs
concurrently with grinding or at a subsequent stage. Throughout the
process, a non-toxic surfactant is applied to the crossties being
processed to minimize dust.
Once the processing of CTRTs is complete, the CTRTs are sold
directly to the end-use combustor for energy recovery. Processed CTRTs
are delivered to the buyers by railcar or truck. The CTRTs are then
stockpiled prior to combustion, with storage timeframes ranging from a
day to a week. When the CTRTs are to be burned for energy recovery, the
material is then transferred from the storage location using a conveyor
belt or front-end loader. The CTRTs are combined with other biomass
fuels, including hog fuel and bark. CTRTs are used to provide high Btu
fuel to supplement low (and sometimes wet) Btu biomass to ensure proper
combustion, often in lieu of coal or other fossil fuels.\106\ The
combined fuel may be further hammered and screened prior to combustion.
Contracts for the purchase and combustion of CTRTs may include fuel
specifications limiting contaminants, such as metal, and precluding the
receipt of wood treated with preservatives other than creosote.
---------------------------------------------------------------------------
\106\ American Forest & Paper Association, American Wood
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------
2. CTRTs Under Previous NHSM Rules
a. March 21, 2011 NHSM Final Rule
The March 21, 2011 NHSM final rule stated that most creosote-
treated wood is non-hazardous. However, the presence of
hexachlorobenzene, a CAA section 112 HAP, as well as other HAP
suggested that creosote-treated wood, including CTRTs, contained
[[Page 6723]]
contaminants at levels that are not comparable to or lower than those
found in wood or coal, the fuel that creosote-treated wood would
replace. In making the assessment, the Agency did not consider fuel oil
\107\ as a traditional fuel that CTRTs would replace, and concluded at
the time that combustion of creosote-treated wood may result in
destruction of contaminants contained in those materials. Such
destruction is an indication of incineration, a waste activity.
Accordingly, creosote-treated wood, including CTRTs when burned, seemed
more like a waste than a commodity, and did not meet the contaminant
legitimacy criterion. This material, therefore, was considered a solid
waste when burned and units combusting it would be subject to the CAA
section 129 emission standards. The conclusions from the March 21, 2011
rule regarding creosote-treated wood are discussed further in section
V.C.4. of this preamble.
---------------------------------------------------------------------------
\107\ For the purposes of this final rule, fuel oil means oils
1-6, including distillate, residual, kerosene, diesel, and other
petroleum based oils. It does not include gasoline or unrefined
crude oil.
---------------------------------------------------------------------------
b. February 2013 NHSM Final Rule
In the February 7, 2013 NHSM final rule, the EPA noted that AF&PA
and the American Wood Council submitted a letter with supporting
information on December 6, 2012, seeking a categorical listing for CTRT
combusted in any unit. The letter included information regarding the
amounts of railroad ties combusted each year and the value of the ties
as fuel. The letter also discussed how CTRTs satisfy the legitimacy
criteria, including its high Btu value.
While this information was useful, it was not sufficient for the
EPA to propose that CTRTs be listed categorically as a non-waste fuel.
As explained in the proposed rule, the EPA had requested that
additional information be provided to further inform the Agency as to
whether to list CTRTs categorically as a non-waste fuel, and stated
that if this additional information supported and supplemented the
representations made in the December 2012 letter, the EPA would expect
to propose a categorical listing for CTRTs.
The requested information and responses provided are outlined
below.
A list of industry sectors, in addition to forest product
mills, that burn railroad ties for energy recovery: One respondent
claimed that a number of end-use combustors utilize CTRTs as an
alternative fuel to offset fossil fuel at all times. Such facilities
use as much as 100-500 tons of CTRTs daily. The respondent also claimed
to know of additional end-use combustors that utilize CTRTs
occasionally based on availability and cost. Furthermore, the
respondent was aware of other end-use combustors that are operationally
able to utilize CTRTs as an alternative fuel to offset fossil fuel, but
have chosen not to use CTRTs as a result of the current solid-waste
implications associated with CTRTs. The end-use combustors that
currently utilize CTRTs, both full-time and part-time, represent a
variety of industry sectors, including pulp and paper manufacturing,
cogeneration plants, utilities, and chemical manufacturing facilities.
For the utility sector, at least 14 utilities could burn (i.e., are
permitted to burn) or are burning CTRTs.\108\ Another respondent
claimed that data \109\ show that a number of forest product mills are
currently using railroad ties as a fuel and that other mills are
permitted to burn these materials as fuels, but have stopped using them
as a fuel due to their uncertain regulatory status, as well as other
economic factors (e.g., lower cost of other fuels).
---------------------------------------------------------------------------
\108\ Information received subsequent to the request for data in
the February 13, 2013 rule discussed above claims that 14 entities
in the utility sector could burn (i.e., are permitted to burn) or
are burning cross-tie derived fuel (i.e., CTRTs). Of the 14
entities, 9 companies are currently firing or have fired CTRTs
within the past two years. Information on pulp and paper and utility
sources currently utilizing CTRTs demonstrates that several of these
sources use between 5,000 and 70,000 tons of CTRTs per year.
Information compiled by M.A. Energy LLC. (MAER) contained in letters
and emails from All4 Inc. to EPA dated January 29, and February 28,
2014.
\109\ American Forest and Paper Association and American Wood
Council's letter to George Faison, EPA. March 7, 2013.
---------------------------------------------------------------------------
The types of boilers (e.g., kilns, stoker boilers,
circulating fluidized bed, etc.) that burn railroad ties for energy
recovery. Respondents stated that the types of units operated by those
end-use combustors that utilize CTRTs as an alternative fuel include
fluidized bed, traveling grate, and spreader stoker. Forest product
industry boilers that burn railroad ties are generally one of three
types: stoker, bubbling bed or fluidized bed boilers.\110\
---------------------------------------------------------------------------
\110\ Information was received that the forest products industry
boilers combusting CTRTs also includes hybrid suspension grate
boilers. See docket EPA-HQ-RCRA-2013-0110-0076.
---------------------------------------------------------------------------
The traditional fuels and relative amounts (e.g., startup,
30 percent, 100 percent) of these traditional fuels that could
otherwise generally be burned in these types of units. Respondents also
claimed that units operated by end-use combustors that utilize CTRTs as
an alternative fuel typically burn a variety of ``traditional fuels,''
such as coal, biomass (i.e., hog fuel, bark fuel, and other biomass
fuel materials), and fuel oil, as well as other materials and wastes,
such as tire derived fuel, waste derived liquid fuel, and waste derived
solid fuel.111 112 In general, they claimed that all of the
units that burn CTRTs also burn significant quantities of biomass given
the similarity of the fuels' characteristics. In addition, they claimed
that most of these units are permitted to burn fuel oil either during
start-up or during normal operations. The respondents claimed that many
factors determine how much fuel oil is burned. For example, because
natural gas prices are low, natural gas is often the fuel of choice, if
available. In addition, they claimed that some states are looking to
reduce SO2 emissions from sources and thus, encourage
greater use of biomass or natural gas rather than fuel oil.\113\
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\111\ To the extent that any of these boilers burn fuel derived
from waste, or any other solid waste, they would be subject to the
CAA section 129 CISWI standards, and the Agency's rule in this
document would not impact their regulatory status.
\112\ American Forest and Paper Association and American Wood
Council's letter to George Faison, EPA. March 7, 2013.
\113\ Examples of combustors utilizing a variety of traditional
and other fuels, including facilities combusting both CTRTs and fuel
oil, is found in documentation provided by the American Associations
of Railroads (AAR). The document listed 11 non- pulp and paper
facilities including power generators. All of the facilities listed
combust CTRTs, three facilities combust CTRT and fuel oil, three
facilities combust CTRT and natural gas. Other fuels combusted
include tire-derived fuel, and landfill gas. February 2013.
---------------------------------------------------------------------------
Respondents claimed that the most comparable traditional fuel to
railroad ties is fuel oil. However, they believe the question of
whether a combustion unit is designed to burn a specific fuel is not
relevant when the EPA makes a determination under 40 CFR 241.4(a).
Specifically, the respondents claimed that the EPA has interpreted the
phrase ``designed to burn'' to mean that a combustor that burns NHSMs
as a non-waste fuel has to be able to burn the NHSM in the combustion
unit, which in the case of CTRTs, would require the installation of a
nozzle for the delivery of liquid fuel into the boiler, to meet the
contaminant legitimacy criterion. The EPA explained that this standard
is to avoid the possibility that discard could be occurring in some
situations.\114\ However, in the context of a specific non-waste
determination under 40 CFR 241.4(a), the respondents argued that the
EPA has the opportunity to evaluate all the factors relating to the use
of CTRTs as a fuel, including the fact that CTRTs is a commodity that
is purchased by the combustor. Furthermore, respondents argued that the
EPA has the
[[Page 6724]]
discretion to recognize that when a combustor purchases CTRTs and then
burns it in a boiler, that combustion is for the purpose of generating
energy rather than discarding the railroad ties. According to the
respondents, any other conclusion would lead to the absurd result that
one boiler can burn CTRTs as a legitimate fuel and another boiler--with
essentially the same design except for a nozzle feed for fuel oil--
would have to consider the CTRTs as a solid waste. (See section V.B.6
of this preamble for the EPA's consideration of the information and
views presented by these respondents.)
---------------------------------------------------------------------------
\114\ See 78 FR 9149
---------------------------------------------------------------------------
The extent to which non-industrial boilers (e.g.,
commercial or residential boilers) burn CTRTs for energy recover. The
respondent understood that the residential use of CTRTs for purposes of
energy recovery is unlikely. However, they explained that several local
utilities in the northern Midwest utilize CTRTs for purposes of power
generation but they have not identified the specific facilities.
Laboratory analyses for contaminants known or reasonably
suspected to be present in creosote-treated railroad ties, and
contaminants known to be significant components of creosote,
specifically polycyclic aromatic hydrocarbons (i.e., PAH-16),
dibenzofuran, cresols, hexachlorobenzene, 2,4-dinitrotoluene, biphenyl,
quinoline, and dioxins.\115\ Respondents submitted contaminant data for
crushed CTRTs, which are discussed in section V.C.4. of this preamble.
With the exception of dioxins, which respondents explain will not be
present in CTRTs, analyses were submitted for all requested
constituents and other contaminants.
---------------------------------------------------------------------------
\115\ The Agency requested these analyses based on the limited
information previously available concerning the chemical makeup of
CTRTs. That limited information included one well-studied sample
from 1990 (showing the presence of both PAHs and dibenzofuran), past
TCLP results (which showing the presence of cresols,
hexachlorobenzene and 2,4-dinitrotoluene), Material Safety Data
Sheets for coal tar creosote (which showing the potential presence
of biphenyl and quinoline), and the absence of dioxin analyses prior
to combustion despite extensive dioxin analyses of post-combustion
emissions.
---------------------------------------------------------------------------
3. Scope of the Proposed Rule and Final Categorical Non-Waste Listing
for CTRT
Under the proposed rule, CTRT was proposed to be listed as a
categorical non-waste when combusted in units that burn both fuel oil
and biomass. This limitation was based on the fact that contaminant
levels for semi-volatile organics (SVOCs) are significantly higher in
CTRT than levels in biomass and coal, but CTRT levels for those
contaminants are lower than levels in fuel oil. In contrast, fluorine
and nitrogen contaminant levels are significantly higher in CTRT than
in fuel oil, but levels for those contaminants are lower than levels in
biomass and coal (79 FR 21023.) Thus, only units burning both biomass
and fuel oil would pass the contaminant legitimacy criteria when
comparing contaminants in the NHSM to the traditional fuel.
Based on information received after the February 7, 2013 final rule
stating that units were switching from fuel oil to natural gas due to
lower compliance costs during operation, we also stated in the proposal
that the Agency was considering another approach for CTRTs combusted in
existing units at major source pulp and paper mills that had been
designed to burn fuel oil and biomass, but are being modified in order
to use clean fuel such as natural gas instead of fuel oil (79 FR
21028). If the EPA were to include this additional approach in the
categorical listing, the CTRT could continue to be combusted only if
certain conditions were met, which are all intended to ensure that the
CTRTs are not being discarded. Conditions included in the proposal are:
CTRTs must be burned in an existing stoker, bubbling bed
or fluidized bed boiler;
the CTRTs can comprise no more than 40 percent of the fuel
that is used on a monthly basis; \116\
---------------------------------------------------------------------------
\116\ Statements at meeting between American Forest and Paper
Association and Mathy Stanislaus on December 19, 2013 indicate that,
CTRTs generally comprise 40% of total fuel load.
---------------------------------------------------------------------------
the boiler that burned the CTRTs must have been designed
to burn both fuel oil and biomass; and
boiler is modifying its design to also burn natural gas.
The Agency stated in the proposed rule that we did not believe that
combustion of CTRT in boiler units that are currently designed to burn
both biomass and fuel oil but are being modified (i.e., removing oil
delivery equipment) in order to burn natural gas should be considered
discard of the CTRTs. EPA considered that these facilities have
demonstrated the ability to burn fuel oil along with biomass and should
not be penalized for switching to the cleaner natural gas fuel.
Information submitted at the time indicating that CTRTs are an
important part of the fuel mix due to the consistently lower moisture
content and higher Btu value, as well as the benefits of drier, more
consistent fuel to combustion units with significant swings in steam
demand, further suggested that discard is not occurring.
The additional approach was meant to address only the circumstance
where contaminants in CTRTs are comparable to or less than the
traditional fuels the unit was originally designed to burn (both fuel
oil and biomass) but that design was modified in order to combust
natural gas. The approach was not a general means to circumvent the
contaminant legitimacy criterion by allowing combustion of any NHSM
with elevated contaminant levels, i.e. levels not comparable to the
traditional fuel the unit is currently designed to burn. The particular
facilities in this case had used CTRTs and would clearly be in
compliance with the legitimacy criteria if they did not switch to the
cleaner natural gas fuel. EPA believed it appropriate to balance other
relevant factors in this categorical non-waste determination and that
it is appropriate for the Agency to decide that the switching to the
cleaner natural gas would not render the CTRTs a waste fuel in view of
the historical usage as a product fuel in the stoker, bubbling bed and
fluidized bed boilers.
For this final rule, based on comments received and information in
the rulemaking record, the EPA has sufficient information to list CTRTs
as a categorical non-waste fuel in combustion units that are designed
to burn both biomass and fuel oil. The Agency finds that units will
meet this condition if the unit combusts fuel oil as part of normal
operations and not solely as part of start-up or shut-down operations.
The Agency is also adopting the additional approach outlined in the
proposed rule with some revisions. Specifically, based on comments
received and information in the rulemaking record, the Agency has
sufficient information to list as categorical non-wastes CTRTs that are
combusted in units at major source pulp and paper mills or power
producers subject to 40 CFR part 63 Subpart DDDDD (Boiler MACT) that
had been designed to burn biomass and fuel oil, but are modified (e.g.
oil delivery mechanisms are removed) in order to use natural gas
instead of fuel oil as part of normal operations and not solely as part
of start-up or shut-down operations. The CTRT may continue to be
combusted as a product fuel under this section only if certain
conditions are met, which are intended to ensure that the CTRTs are not
being discarded:
The CTRTs must be combusted in existing (i.e. commenced
construction prior to April 14, 2014) stoker, bubbling bed, fluidized
bed or hybrid suspension grate boilers; and
[[Page 6725]]
CTRTs can comprise no more than 40 percent of the fuel
that is used on an annual heat input basis.
The standard is applicable to existing units burning CTRTs that had
been designed to burn fuel oil and biomass and have been modified to
burn natural gas. The standard will also apply if an existing unit
burning CTRTs and designed to burn fuel oil and biomass is modified at
some point in the future.
Based on comments received on the proposed rule, several revisions
were made in the additional approach as adopted for the final rule
under section 241.(a)(7): (1) CTRTs combusted in units at power
producers subject to 40 CFR part 63 Subpart DDDDD (Boiler MACT) have
been added to the categorical listing; (2) the 40% fuel load limit has
been changed to an annual heat input basis; (3) regulatory language was
added stating that units combusting fuel oil and natural gas, as well
as units that had switched from fuel oil to natural gas, must combust
these materials as part of normal operations and not solely as part of
start-up or shut-down operations; and (4) hybrid suspension grate
boilers are added to the list of acceptable boilers and to provide
further clarity regarding CTRTs combusted in ``existing'' stoker,
bubbling bed, fluidized bed or hybrid suspension grate boilers,
existing is defined as April 14, 2014, the date of issuance of the
proposed rule.
See section V.C.6. Response to Comments for a further discussion of
these changes.
4. Rationale for Final Rule
This section discusses the reasoning provided in the proposed rule
and the reasons for the EPA's final determinations for the categorical
listing of CTRTs. EPA adopts the reasoning in the proposed rule and
further explains it in this preamble. Further explanations for the
Agency's decision are provided in the Response to Comments below. The
proposal, this section, and the Response to Comments all constitute the
Agency's final determination supporting this rule.
a. Discard
When deciding whether an NHSM should be listed as a categorical
non-waste fuel in accordance with 40 CFR 241.4(b)(5), the EPA first
evaluates whether or not the NHSM has been discarded in the first
instance and, if not so discarded, whether or not the material could be
considered discarded because it is not legitimately used as a product
fuel in a combustion unit. Based on the rulemaking record, as discussed
below, the Agency has determined that CTRTs are not discarded when
processed and combusted in the types of units described herein.
i. Storage of CTRT
As discussed in section V.C.1. of this preamble, crossties removed
from service are sometimes temporarily stored in the railroad right-of-
way or at another location selected by the reclamation company. This
means that not all CTRTs originate from crossties removed from service
in the same year; some CTRTs are processed from crossties removed from
service in prior years and stored by railroads or removal/reclamation
companies until a contract for reclamation is in place.
The December 6, 2012, letter from AF&PA states that in those cases
where the railroad or reclamation company wait for more than a year to
realize the value of the CTRTs as a fuel (or in landscaping) does not
mean that the CTRTs have been discarded and cite 76 FR 15456, 15520 of
the March 21, 2011 rule. That section of the rule addresses the
management of the NHSM as a valuable commodity and states that storage
of the NHSM must be within a reasonable timeframe.\117\ The letter
further states that there is a robust market for companies engaged in
railroad tie reclamation, and the cost of this material indicates that
the material is a valuable commodity and has not been discarded.
---------------------------------------------------------------------------
\117\ As discussed in the NHSM final rule (76 FR 15520),
``reasonable time frame'' is not specifically defined as such time
frames vary among the large number of non-hazardous secondary
materials and industries involved.
---------------------------------------------------------------------------
While the Agency recognizes that the reasonable timeframe for
storage may vary by industry, the Agency disagrees that any explanation
(other than a repeat of what the rules say) has been provided of why
storage that may be longer than a year is not discard, especially when
they argue that CTRTs are a valuable material. Therefore, without
further explanation or information from the public, the Agency
concludes that CTRTs removed from service that may be stored in a
railroad right of way or other location for long periods of time--that
is, a year or longer, without a determination regarding their final end
use (e.g., landscaping, as a fuel or land filled) shows that the
material has been discarded and is a solid waste (see the preamble
discussion of discard 76 FR 15463 in the March 21, 2011 rule). The
assertion that the CTRTs are a valuable commodity in a robust market
does not change the fact that the CTRTs have been discarded at some
point. NHSMs may have value in the marketplace and still be wastes.
ii. Processing of CTRTs
The railroad ties removed from service are considered discarded
because they can be stored for long periods of time without a final
determination regarding their final end use. In order for them to be
considered a non-waste fuel, they must be processed, thus transforming
the railroad ties into a product fuel that meets the legitimacy
criteria, or if not meeting the legitimacy criteria, would still be
considered a non-waste fuel if the EPA decides so after balancing the
legitimacy criteria with other relevant factors. The Agency concludes
that the processing of CTRTs described above in section V.C.1. of this
preamble meets the definition of processing in 40 CFR 241.2. Processing
includes operations that transform discarded NHSM into a non-waste fuel
or non-waste ingredient, including operations necessary to: Remove or
destroy contaminants; significantly improve the fuel characteristics
(e.g., sizing or drying of the material, in combination with other
operations); chemically improve the as-fired energy content; or improve
the ingredient characteristics. Minimal operations that result only in
modifying the size of the material by shredding do not constitute
processing for the purposes of the definition. Specifically, the Agency
concludes that CTRTs meet the definition of processing in 40 CFR 241.3
because:
Contaminants (spikes, nails, plates, etc.) are removed
using a magnet. This magnetic removal of metals may occur several times
during processing.
The fuel characteristics of the material are improved when
the crossties are ground or shredded to a specified size depending on
the particular needs of the end-use combustor. The grinding may occur
in one or more phases. Once the CTRTs are ground, there may be
additional screening to bring the material to a specified size.
b. Legitimacy Criteria
In determining whether to list CTRTs as a categorical non-waste
fuel in 40 CFR 241.4(a), the Agency evaluated the legitimacy criteria
in 40 CFR 241.3(d)(1)--that is, whether it is managed as a valuable
commodity, whether it has a meaningful heating value and is used as a
fuel in a combustion unit to recover energy, and whether contaminants
or groups of contaminants are at levels comparable to or less than
those in the traditional fuel the unit is designed to burn. To the
extent that CTRTs do not meet one or more of the legitimacy criteria,
and are
[[Page 6726]]
thus discarded, the Agency may consider other relevant factors in
determining whether to list CTRT as a categorical non-waste fuel (40
CFR 241.4(b)(5)(ii)). The Agency adopts for the final rule the
reasoning explained below.
i. Managed as a Valuable Commodity
As discussed in the proposed rule and adopted for the final rule,
the processing of CTRTs is correlated to the particular needs of the
end-use combustor. Additional screening may take place after the
grinding and shredding of the CTRTs if deemed necessary. Once the CTRTs
meet the end use specification, they are then sold directly to the end-
use combustor for energy recovery. CTRTs are delivered to the end-use
combustors via railcar and/or truck similar to delivery of traditional
biomass fuels. While awaiting combustion at the end-user, which usually
takes place within a week of arrival, the CTRTs are transferred and/or
handled from storage in a manner consistent with the transfer and
handling of biomass fuels. Such procedures include screening by the
end-use combustor, combining with biomass fuels, and transferring to
the combustor via conveyor belt or front-end loader. Since processed
CTRT storage does not exceed reasonable time frames and are handled/
treated similar to analogous biomass fuels by end-use combustors, CTRTs
meets the criterion for being managed as a valuable commodity.\118\
---------------------------------------------------------------------------
\118\ Prior to the CTRTs being processed as a product fuel, the
CTRTs are considered solid wastes and would be subject to
appropriate federal, state, and local requirements.
---------------------------------------------------------------------------
ii. Meaningful Heating Value and Used as Fuel To Recover Energy
As discussed in the proposal and adopted as the reasoning to
support the final rule, the heating value of processed CTRTs ranges
from 6,000-8,000 Btu/lb as fired, and combustion units recover energy
by burning the material as fuel. In the March 21, 2011 NHSM final rule,
the Agency stated that NHSMs with an energy value greater than 5,000
Btu/lb, as fired, are considered to have a meaningful heating
value.\119\ Information compiled by the EPA in 2011 also specifies that
CTRTs could replace clean wood that has an average as-fired heating
value of 5,150 Btu/lb, with a low as-fired heating value of 3,440 Btu/
lb.\120\ Thus, CTRTs have greater heating value than the traditional
fuel it replaces, and meet the criterion for meaningful heating value
and used as a fuel to recover energy, and are not discarded for
purposes of this criterion.
---------------------------------------------------------------------------
\119\ See 76 FR 15541.
\120\ Fuel analysis data for unadulterated wood. USEPA, Office
of Air Quality Planning and Standards, Emissions Data for Boilers
and Process Heaters Containing Stack Test, CEM & Fuel Analysis Data
Reported Under ICR No. 2286.03 (Version 6) EPA Docket Number EPA-HQ-
OAR-2002-0058-3255. February 2011.
---------------------------------------------------------------------------
iii. Contaminants Comparable to or Lower Than Traditional Fuels
For CTRTs, the EPA compared the additional data submitted on
contaminant levels by industry to analogous data for two traditional
fuels: Biomass (including untreated clean wood) and fuel oil. The data
the EPA received on CTRTs comes from the following three sources: M.A.
Energy Resources (MAER), URS Corporation on behalf of the Association
of American Railroads, and AF&PA. The information submitted by MAER
included a comprehensive analysis of one CTRT sample. The sample came
from a CTRT pile located at an end-use combustor. The URS Corporation
report included three samples of processed CTRTs from the National
Salvage facility in Selma, Alabama, and from a Stella Jones facility in
Duluth, Minnesota. AF&PA also submitted documents comparing contaminant
concentrations in CTRTs with traditional fuels, compiling data from
various sources in these documents. The EPA considers data from these
eight facilities to be representative of the CTRT universe because the
composition of the creosote component of the CTRTs is the same--that
is, the P2 blend of creosote, as well as the fact that multiple samples
have been taken in different parts of the country at different points
in the CTRT management chain.
The section below discusses determinations on contaminant
comparisons in CTRTs to fuel oil and biomass. The contaminant data
received on CTRTs includes information that units combusting CTRTs and
fuel oil may also combust coal; determinations regarding contaminant
comparisons to that traditional fuel follows the discussion on fuel oil
and biomass.
Contaminant Comparisons in CTRTs to Fuel Oil and Biomass. Table 3
of this preamble lists the aggregated CTRT data received as it compares
to contaminants found in two traditional fuels that industry claim are
used, in varying amounts, at facilities burning processed CTRTs for
energy recovery.
Table 3--Contaminant Ranges in Traditional Fuels & CTRT
[In parts per million]
----------------------------------------------------------------------------------------------------------------
Contaminant Biomass \a\ Fuel oil \a\ CTRT \b\
----------------------------------------------------------------------------------------------------------------
Metal Elements
----------------------------------------------------------------------------------------------------------------
Antimony (Sb)............... ND-26..................... ND-15.7................... ND
Arsenic (As)................ ND-298.................... ND-13..................... ND-3.2
ND
Beryllium (Be).............. ND-10..................... ND-19..................... ND-0.3
Cadmium (Cd)................ ND-17..................... ND-1.4.................... ND-0.3
Chromium (Cr)............... ND-340.................... ND-37..................... ND-15.3
Cobalt (Co)................. ND-213.................... ND-8.5.................... ND
Lead (Pb)................... ND-340.................... ND-56.8................... ND-9.6
Manganese (Mn).............. ND-15,800................. ND-3,200.................. 63-185
Mercury (Hg)................ ND-1.1.................... ND-0.2.................... 0.02-0.05
Nickel (Ni)................. ND-540.................... ND-270.................... ND-38
Selenium (Se)............... ND-9...................... ND-4...................... ND-1
----------------------------------------------------------------------------------------------------------------
Non-Metal Elements
----------------------------------------------------------------------------------------------------------------
Chlorine (Cl)............... ND-5,400.................. ND-1,260.................. 22-400
Fluorine (F)................ ND-300.................... ND-14..................... 100
Nitrogen (N)................ 200--39,500............... 42-8,950.................. 1,600-14,400
[[Page 6727]]
Sulfur (S).................. ND-8,700.................. ND-57,000................. 681-3,277
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compound (VOC) Hazardous Air Pollutants
----------------------------------------------------------------------------------------------------------------
Benzene..................... .......................... ND-75..................... ND
Phenol...................... .......................... ND-7,700.................. ND
Styrene..................... .......................... ND-320.................... ND
Toluene..................... .......................... ND-380.................... ND
Xylenes..................... .......................... ND-3,100.................. 0.325
Cumene...................... .......................... 6,000-8,600............... ND
Ethyl benzene............... .......................... 22-1270................... 0.058
Formaldehyde................ 1.6-27.................... .......................... ND
Hexane...................... .......................... 50-10,000................. ND
15 Additional VOC........... .......................... .......................... ND
-----------------------------------------------------------------------------------
Total VOC \c\........... 1.6-27.................... 6,072-19,810.............. 0.383
----------------------------------------------------------------------------------------------------------------
Semivolatile Hazardous Pollutants
----------------------------------------------------------------------------------------------------------------
Biphenyl.................... .......................... 1,000-1,200............... 137-330
16-PAH \d\.................. .......................... 3,900-54,700.............. 6641-21,053
Dibenzofuran................ .......................... .......................... 570-1,500
Quinoline................... .......................... .......................... 40.2
Cresols..................... .......................... .......................... 1.51
Hexachlorobenzene........... .......................... ND........................ ND
2,4-dinitrotoluene.......... .......................... ND........................ ND
Lindane..................... .......................... .......................... 0.238
11 Additional SVOC.......... .......................... .......................... ND
-------------------------------------------------------
Total SVOC \c\.......... .......................... 4,900-54,700.............. 7,618-22,883
----------------------------------------------------------------------------------------------------------------
\a\ ``Contaminant Concentrations in Traditional Fuels: Tables for Comparison'' document available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature
sources and from data submitted to USEPA, Office of Air Quality Planning and Standards (OAQPS).
\b\ (1) MA Energy Resources, LLC. February 2013 Crosstie Derived Fuel Petition; (2) URS, Evaluation of Used
Railroad Ties Treated with Creosote. Prepared for Association of American Railroads. January 28, 2013; (3)
AF&PA, Comparison of Contaminant Concentrations in Crosstie Derived Fuel with Traditional Fuels. February 28,
2013.
\c\ Total VOC and SVOC ranges do not represent a simple sum of the minimum and maximum values for each
contaminant. This is because minimum and maximum concentrations for individual VOCs and SVOCs do not always
come from the same sample.
\d\ 16-PAH includes: Acenaphthene, acenaphthylene, anthracene, benz(a)anthracene, benzo(a)pyrene,
benzo(b)fluoranthene, benzo(g,h,i)perylene, benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene,
fluoranthene, fluorene, indeno(1,2,3-cd)pyrene, naphthalene, phenanthrene, and pyrene. 16-PAH is designated as
Total PAH in the Table for Comparison cited in note ``a'' above.
As shown in Table 3 of this preamble, all contaminant concentration
levels for metals are within the ranges identified for fuel oil and
biomass. We note that when comparing the non-metal elemental
contaminants, however, fluorine and nitrogen levels in CTRTs are not
comparable to fuel oil, and semi-volatile organic compound (SVOC)
levels are not comparable to biomass. Given that CTRTs are a type of
treated wood biomass, and any unit burning CTRTs typically burns
untreated wood, the EPA considered two scenarios that industry
described.
In the first scenario, where a combustion unit is designed to only
burn biomass, the EPA compared contaminant levels in CTRTs to
contaminant levels in biomass. In this scenario, the total SVOC levels
can reach 22,883 ppm, driven by high levels of polycyclic aromatic
hydrocarbons (PAHs) and, to a lesser extent, the levels of dibenzofuran
and biphenyl.\121\ These compounds are largely nonexistent in clean
wood and biomass, and the contaminants are therefore not comparable in
this instance. In fact, they are present at orders of magnitude higher
than found in clean wood and biomass.
---------------------------------------------------------------------------
\121\ We note that for several SVOCs--cresols,
hexachlorobenzene, and 2,4-dinitrotoluene, which were expected to be
in creosote, and for which information was specifically requested in
the February 7, 2013 NHSM final rule (78 FR 9111), the data
demonstrate that they were not detectable, or were present at levels
so low to be considered comparable.
---------------------------------------------------------------------------
In the second scenario, a combustion unit is designed to burn
biomass and fuel oil. As previously mentioned, fluorine, and nitrogen
levels in CTRTs are present at elevated levels when compared to fuel
oil. However, the highest levels of fluorine (100 ppm) and nitrogen
(14,400 ppm) are comparable to, or well within the levels of these
contaminants in biomass. Likewise, SVOCs are present in CTRTs (up to
22,883 ppm) at levels well within the range observed in fuel oil (up to
54,700 ppm). Accordingly, contaminant concentration levels for
fluorine, nitrogen, and SVOCs are within the ranges identified for
either biomass or fuel oil. Therefore, CTRTs have comparable
contaminant levels to other fuels combusted in units designed to burn
both biomass and fuel oil, and as such, meet this criterion if used in
facilities that are designed to burn both biomass and fuel oil.\122\
---------------------------------------------------------------------------
\122\ As discussed previously, the March 21, 2011 NHSM final
rule (76 FR 15456), noting the presence of hexachlorobenzene and
dinitrotoluene, suggested that creosote-treated lumber include
contaminants at levels that are not comparable to those found in
wood or coal, the fuel that creosote-treated wood would replace, and
would thus be considered solid wastes. This final rule differs in
several respects from the conclusions in the March 2011 rule. This
final rule concludes that CTRTs are a categorical non-waste when
combusted in units designed to burn both fuel oil and biomass. The
March 2011 rule, using 1990 data on railroad cross ties, was based
on contaminant comparisons to coal and biomass and not fuel oil. As
discussed above, when compared to fuel oil, total SVOC contaminant
concentrations (which would include dinitrotoluene and
hexachlorobenzene) in CTRTs would be less that those found in fuel
oil, and in fact, the 2012 data referenced in this final rule showed
non-detects for those two contaminants.
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[[Page 6728]]
As stated in the preamble to the February 7, 2013, NHSM final rule,
combustors may burn NHSMs as a product fuel if they compare
appropriately to any traditional fuel the unit can or does burn. (78 FR
9149) Combustion units are often designed to burn multiple traditional
fuels, and some units can and do rely on different fuel types at
different times based on availability of fuel supplies, market
conditions, power demands, and other factors. Under these
circumstances, it is arbitrary to restrict the combustion for energy
recovery of NHSMs based on contaminant comparison to only one
traditional fuel if the unit could burn a second traditional fuel
chosen due to such changes in fuel supplies, market conditions, power
demands or other factors. If a unit can burn both a solid and liquid
fuel, then comparison to either fuel would be appropriate.
In order to make comparisons to multiple traditional fuels, units
must be designed to burn those fuels. If a facility compares
contaminants in an NHSM to a traditional fuel a unit is not designed to
burn, and that material is highly contaminated, a facility would then
be able to burn excessive levels of waste components in the NHSM as a
means of discard. Such NHSMs would be considered wastes regardless of
any fuel value. (78 FR 9149) \123\ Accordingly, the ability to burn a
fuel in a combustion unit does have a basic set of requirements, the
most basic of which is the ability to feed the material into the
combustion unit. The unit should also be able to ensure the material is
well-mixed and maintain temperatures within unit specifications.
---------------------------------------------------------------------------
\123\ 78 FR 9149 states ``If a NHSM does not contain
contaminants at levels comparable to or lower than those found in
any [emphasis added] traditional fuel that a combustion unit could
burn, then it follows that discard could be occurring if the NHSM
were combusted. Whether contaminants in these cases would be
destroyed or discarded through releases to the air, they could not
be considered a normal part of a legitimate fuel and the NHSM would
be considered a solid waste when used as a fuel in that combustion
unit.''
---------------------------------------------------------------------------
Available information regarding use of fuel oil. As discussed in
section V.C.2. of this preamble, industry stated during the comment
period that there are combustion units designed to burn biomass and
fuel oil, but did not identify specific units. A March 2013 letter from
AF&PA \124\ stated that the overwhelming majority of CTRTs burned at
paper mills are burned in boilers that are fully capable and permitted
to burn at maximum capacity rating. Most of these boilers (80 percent)
can or do burn oil during operating conditions outside of startup and
shutdown periods.\125\ Industry also stated that units operated by end-
use combustors that utilize CTRTs as an alternative fuel typically burn
a variety of ``traditional fuels,'' such as coal, biomass (i.e., hog
fuel, bark fuel, and other biomass fuel materials), and fuel oil, as
well as other materials. They stated that all of the units that burn
CTRTs also burn significant quantities of biomass given the similarity
of the fuels' characteristics. In addition, most of these units are
permitted to burn fuel oil either during start-up or during normal
operations. The EPA finds, based on this information, units do combust
multiple fuel including fuel oil and CTRTs.\126\
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\124\ American Forest and Paper Association and American Wood
Council's letter to George Faison, EPA. March 7, 2013. EPA-HQ-RCRA-
2013-0110-003.
\125\ American Forest and Paper Association and American Wood
Council's letter to George Faison, EPA. March 7, 2013. EPA-HQ_RCRA-
2013-0110-003.
\126\ The Agency notes that in 2008, information was collected
from owners and operators of combustion units across a wide variety
of industries, including use of fuel oil, in its development of
emissions standards for boilers and process heaters under section
112 of the Clean Air Act. In that context, based on the information
submitted by industry at the time (including petitioners and
others), EPA concluded that units that combust solid fuels generally
used fuel oil or natural gas only as a startup fuel and that
changing the fuel type in such units would generally require
extensive changes to the fuel handling and feeding system, as well
as modification to the burners and combustion chambers. 75 FR 32006,
32017. The information submitted for the ICR, however, also stated
that some biomass units may combust fuel oil at other times, for
example, for transient flame stability purposes if they are
combusting biomass with a high moisture content. The ICR did not
state the amount of fuel oil being combusted, or whether fuel oil
was combusted alone or in conjunction with solid fuel, such as
biomass. Although recent information outlined above shows that units
do combust multiple fuels including CTRTs and fuel oil, at the time
of the development of the boiler MACT, EPA did not have information,
including information submitted in response to the ICR, indicating
there are units designed to burn solid fuel which commonly switch
between combusting biomass and fuel oil or otherwise combusted fuel
oil as part of normal operation.
---------------------------------------------------------------------------
Contaminant Comparisons to Coal. Data received from industry'
included information that boilers combusting CTRTs may also combust
coal, which is a traditional fuel. For purposes of contaminant
comparison to that traditional fuel, the EPA considered two scenarios.
In the first scenario, where CTRTs were combusted in units designed
to burn only coal and biomass, contaminant levels in CTRTs were
compared to those two traditional fuels.\127\ In this scenario, as
shown in Table 4 of this preamble, maximum levels of SVOCs in CTRTs
(22,883 ppm) exceeded those in coal (2,343 ppm) and biomass (SVOC
levels largely non-existent). Thus, units that are designed to burn
only coal and biomass would not meet the legitimacy criterion for
contaminant comparison to CTRTs, an indication that discard may be
occurring.
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\127\ Contaminant levels in coal presented in ``Contaminant
Concentrations in Traditional Fuels: Tables for Comparison''
document available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various
literature sources and from data submitted to USEPA, Office of Air
Quality Planning and Standards (OAQPS).
---------------------------------------------------------------------------
In the second scenario, a combustion unit is designed to burn coal,
biomass and fuel oil. As shown in Table 4 of this preamble, SVOCs are
present in CTRTs (up to 22,883 ppm) at levels well exceeding those in
coal and biomass but within the range observed in fuel oil (up to
54,700 ppm). Fluorine, and nitrogen levels in CTRTs are present at
elevated levels when compared to fuel oil. However, the highest levels
of fluorine (100 ppm) and nitrogen (14,400 ppm) are comparable to, or
well within the levels of these contaminants in biomass. All other
contaminants in CTRTs are comparable to those in coal.
Thus, CTRTs can be combusted in units burning coal (or other
traditional fuels), but only if the unit is also designed to burn fuel
oil and biomass. CTRTs have comparable contaminant levels in units
designed to burn biomass fuel oil and coal, and as such, meet this
criterion if used in facilities that are designed to burn those
traditional fuels. (see also section V.C.6. Response to Comments
regarding combustion of coal in units that switched from fuel oil to
natural gas).
[[Page 6729]]
Table 4--Contaminant Ranges in Biomass, Fuel Oil, Coal & CTRT
[In parts per million]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Contaminant Biomass \a\ Fuel oil \a\ CTRT \b\ Coal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Metal Elements
--------------------------------------------------------------------------------------------------------------------------------------------------------
Antimony (Sb).................. ND-26........................ ND-15.7..................... ND.......................... 0.5--10
Arsenic (As)................... ND-298....................... ND-13....................... ND-3.2 ND................... 0.5-174
Beryllium (Be)................. ND-10........................ ND-19....................... ND-0.3...................... 0.1-206
Cadmium (Cd)................... ND-17........................ ND-1.4...................... ND-0.3...................... 0.1-19
Chromium (Cr).................. ND-340....................... ND-37....................... ND-15.3..................... 0.5-168
Cobalt (Co).................... ND-213....................... ND-8.5...................... ND.......................... 0.5-30
Lead (Pb)...................... ND-340....................... ND-56.8..................... ND-9.6...................... 2-148
Manganese (Mn)................. ND-15,800.................... ND-3,200.................... 63--185..................... 5-512
Mercury (Hg)................... ND-1.1....................... ND-0.2...................... 0.02-0.05................... 0.02-31
Nickel (Ni).................... ND-540....................... ND-270...................... ND-38....................... 0.5-730
Selenium (Se).................. ND-9......................... ND-4........................ ND-1........................ 0.2-743
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-Metal Elements
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chlorine (Cl).................. ND-5,400..................... ND-1,260.................... 22-400...................... ND-9,080
Fluorine (F)................... ND-300....................... ND-14....................... 100......................... ND-178
Nitrogen (N)................... 200-39,500................... 42-8,950.................... 1,600-14,400................ 13,600-54,000
Sulfur (S)..................... ND-8,700..................... ND-57,000................... 681-3,277................... 740-61,300
--------------------------------------------------------------------------------------------------------------------------------------------------------
Volatile Organic Compound (VOC) Hazardous Air Pollutants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benzene........................ ............................. ND-75....................... ND.......................... ND-38
Phenol......................... ............................. ND-7,700.................... ND
Styrene........................ ............................. ND-320...................... ND.......................... 1.0-26
Toluene........................ ............................. ND-380...................... ND.......................... 8.6-56
Xylenes........................ ............................. ND-3,100.................... 0.325....................... 4.0-28
Cumene......................... ............................. 6,000-8,600................. ND
Ethyl benzene.................. ............................. 22-1,270.................... 0.058....................... 0.7-5.4
Formaldehyde................... 1.6-27....................... ............................ ND
Hexane......................... ............................. 50-10,000................... ND
15 Additional VOC.............. ............................. ............................ ND
------------------------------------------------------------------------------------------------------------------------
Total VOC \c\.............. 1.6-27....................... 6,072-19,810................ 0.383....................... 14.3-125.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Semivolatile Organic Compound (VOC) Hazardous Air Pollutants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Biphenyl....................... ............................. 1,000-1,200................. 137-330
16-PAH \d\..................... ............................. 3,900-54,700................ 6641-21,053................. 6-253
Dibenzofuran................... ............................. ............................ 570-1,500
Quinoline...................... ............................. ............................ 40.2
Cresols........................ ............................. ............................ 1.51
Hexachlorobenzene.............. ............................. ND.......................... ND
2,4-dinitrotoluene............. ............................. ND.......................... ND
Lindane........................ ............................. ............................ 0.238
11 Additional SVOC............. ............................. ............................ ND
PAH (52 extractable)........... ............................. ............................ ............................ 14-2,090
-----------------------------------------------------------------------------------------
Total SVOC \c\............. ............................. 4,900-54,700................ 7,618-22,883................ 20-2,343
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ ``Contaminant Concentrations in Traditional Fuels: Tables for Comparison'' document available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and
Standards (OAQPS).
\b\ (1) MA Energy Resources, LLC. February 2013 Crosstie Derived Fuel Petition; (2) URS, Evaluation of Used Railroad Ties Treated with Creosote.
Prepared for Association of American Railroads. January 28, 2013; (3) AF&PA, Comparison of Contaminant Concentrations in Crosstie Derived Fuel with
Traditional Fuels. February 28, 2013.
\c\ Total VOC and SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum and maximum
concentrations for individual VOCs and SVOCs do not always come from the same sample.
\d\ 16-PAH includes: Acenaphthene, acenaphthylene, anthracene, benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(g,h,i)perylene,
benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene, fluoranthene, fluorene, indeno(1,2,3-cd)pyrene, naphthalene, phenanthrene, and pyrene. 16-PAH
is designated as Total PAH in the Table for Comparison cited in note ``a'' above.
Contaminant Information related to dibenzofurans and dioxins. As
discussed above, the Agency requested data on dibenzofuran and dioxins,
in large part because dibenzofuran is known to be present in CTRTs and
listed as a HAP under CAA section 112 and dioxins are a pollutant under
CAA sections 112 and 129.
Industry submitted an explanatory document in response to the
Agency's request.\128\ The document provided additional information
regarding (a) the presence of dibenzofuran in creosote and creosote-
treated wood, and (b)
[[Page 6730]]
whether the presence of dibenzofuran is associated with the concurrent
presence of the polychlorinated versions of these compounds, viz.,
polychlorinated dibenzo p-dioxins and dibenzofurans (PCDD/F--often
collectively termed dioxins).
---------------------------------------------------------------------------
\128\ American Forest and Paper Association and American Wood
Council--Letter to George Faison, EPA March 7, 2013. EPA-HQ-RCRA-
0110-003.
---------------------------------------------------------------------------
The industry' data confirms the presence of dibenzofurans. Industry
acknowledged that coal tar creosote used in preparing railroad ties may
have levels of dibenzofuran up to 4.5 percent or 45,000 ppm, and
dibenzofuran concentrations measured in seven samples of railroad ties
previously treated with creosote ranged from 570 to 1,500 ppm. However,
as stated by the industry, this compound should not be confused with
dioxins or furans, which refers to a larger group of polychlorinated
dibenzofurans and dibenzodioxins.
The Agency agrees with the petitioner's explanation that
dibenzofuran present in the CTRTs will not result in the formation of
dioxins, but as a HAP itself, dibenzofuran is still appropriate to
include in the list of SVOCs for comparison to traditional fuels.\129\
Regarding dioxins, the document shows that dioxins will not be present
in the material. The Agency agrees that the level of chlorine during
creosote production is not sufficient to form dioxins in coal tar
creosote and therefore dioxin will not be present in CTRTs prior to
combustion.
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\129\ When making contaminant comparisons for purposes of
meeting the legitimacy criterion, it would be appropriate in this
circumstance to find that grouping of contaminants would not result
in discard. For example, under the grouping concept, individual SVOC
levels may be elevated above that of the traditional fuel, but the
contaminant legitimacy criterion will be met as long as total SVOCs
is comparable to or less than that of the traditional fuel. Such an
approach is standard practice employed by the Agency in developing
regulations and is consistent with monitoring standards under CAA
sections 112 and 129. See 78 FR 9146, February 7, 2013, for further
findings that relate to the issue of grouping contaminants for
purposes of determining discard.
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c. Other Relevant Factors in a Categorical Non-Waste Determination for
CTRTs
In their request for a categorical listing of CTRTs and in
background information submitted subsequent to that request, industry
argued that, in the context of a specific non-waste determination under
40 CFR 241.4(a), the Agency can balance the legitimacy criteria against
other relevant factors in any decision to list an NHSM categorically.
See 40 CFR 241.4(b)(5). Specifically, industry argued that the phrase
``designed to burn'' can be another relevant factor that the Agency can
consider in making a decision on listing CTRTs categorically as a non-
waste fuel. They argued that by conducting such balancing, the Agency
could allow CTRTs to be burned as a non-waste fuel in any combustion
unit that can combust biomass, whether or not the combustion unit is
designed to burn fuel oil. Thus, industry requested that the Agency re-
define or ignore the ``design to burn'' concept, as currently
interpreted for the purposes of this categorical listing.
In arguing that the Agency can re-define or ignore the ``design to
burn'' concept, industry identified additional relevant factors to be
considered in a categorical listing for CTRTs. Specifically:
CTRTs are functionally the same as other comparable
traditional fuels, such as fossil fuels used in a fuel mix to maintain
an appropriate Btu level for the biomass boilers, combusted in the same
units and subject to the same air pollution controls.130 131
---------------------------------------------------------------------------
\130\ Petitioner arguments regarding functional equivalence and
use of CTRTs as a commodity are also outlined in Legal Analysis
Supporting Listing Railroad Tie Fuel as a Nonwaste under 40 CFR
241.4(a)(January 15, 2014.) American Forest and Paper Association.
Docket number EPA-HQ-RCRA-201-0110-0008.
\131\ To further support a finding of functional equivalency,
petitioners submitted data claiming that stack emissions of PAHs
(PAHs are higher in railroad ties than in coal or biomass), are
controlled in the same way as all organic constituents present in
the other fuels used by the boilers that combust railroad tie fuel.
The Air Emissions Impact of Burning Railroad Tie-Derived Fuel.
NCASI, January 2014.
---------------------------------------------------------------------------
CTRTs are integral to the production process similar to
any other fuel used and consistently have lower moisture content and
higher Btu value than other biomass fuel.
CTRTs are commodity fuels--users pay $20-$30 per ton thus
industry believe that the material is not being discarded.
High levels of PAHs in CTRTs and removal of oil delivery
mechanisms from units designed to combust fuel oil and CTRTs is not an
indication that the material is being ``discarded'' and is thus a solid
waste.\132\ As discussed previously, units will be switching from fuel
oil to natural gas. Such units designed to combust both fuel oil and
CTRTs include stoker, bubbling bed and fluidized bed boilers. Boilers
that have burned fuel oil currently or in the past will discontinue
using fuel oil, however, industry argues that they have clearly
demonstrated the ability to burn that material as a product fuel.
---------------------------------------------------------------------------
\132\ Petitioners also argued in their December 19, 2013
background material that high PAH levels in fuels are not related to
PAH emission levels. They state that Boiler MACT carbon monoxide
(CO) limits ensure good combustion practices by minimizing PAHs and
other products of incomplete combustion (under the Boiler MACT
standards, CO is a surrogate for organic HAPs such as PAHs). Dry
fuels such as CTRTs increase heat value of the fuel mix improving
combustion temperature and conditions.
---------------------------------------------------------------------------
In general, industry argues that any combustor that purchases CTRTs
for use as a fuel is purchasing the material because of its fuel value
and that any burning is clearly for generating energy, as opposed to
discarding CTRTs. Otherwise, they argue it would lead to the absurd
result that for a boiler that can burn fuel oil and CTRTs, the CTRTs
would be considered a non-waste fuel, whereas another boiler that
cannot burn fuel oil, but also burns CTRTs, the CTRTs would be
considered a solid waste. Some recyclers and combustors, according to
industry, have been managing CTRTs as non-waste fuel, irrespective of
the type of boiler or combustion unit.
While we agree with industry that the agency may list an NHSM
categorically by balancing the legitimacy criteria against other
relevant factors (40 CFR 241.4(b)(5)(ii)), we do not agree that the
Agency can simply ignore any of the legitimacy criteria, particularly
the contaminant legitimacy criterion. In particular, industry argues
that any biomass material regardless of the contaminant or how
contaminated it is, should be considered a non-waste fuel.
Purchase of the material as a commodity for its fuel value is a
factor, but not determinative when considering whether discard has
occurred. Further, elevated levels of contaminants remaining in the
material can indicate that the material is being discarded. While the
Agency recognizes that other relevant factors may be considered when
one of the legitimacy criteria are not met, there is a limit to the
levels of contamination allowed in balancing other relevant factors
with the legitimacy criteria to determine whether discard occurs.
We do not agree with petitioner's claim that CTRTs are functionally
the same as other comparable traditional fuels, such as fossil fuels
that are used in a fuel mix to maintain an appropriate Btu level for
the biomass boilers and are combusted in the same units and subject to
the same air pollution controls. CTRT contains contaminants at levels
that are not comparable to the contaminant levels in biomass, the
traditional fuel the units' combusting CTRT are designed to burn. As
discussed, there is a limit to the levels of such contamination allowed
in balancing other relevant factors, and elevated levels of
contaminants remaining in the material can show that the material is
being discarded. Further, all CTRTs are not functionally the same as
comparable
[[Page 6731]]
traditional fuels since it must be processed by reclamation companies
to remove metals (spikes, nails etc.) and shredded into chips to make
it suitable as a fuel source.
We also do not agree that CTRTs are integral to the production
process. In a previous categorical determination for resinated wood,
the Agency did conclude that the material was integrated into the
production process and was thus a categorical non-waste (78 FR 9155,
February 7, 2013). The Agency based that conclusion on information
indicating that resinated wood production facilities were specifically
designed to utilize that material for their fuel value, and the plants
could not operate as designed without the use of resinated wood.
Similar information was not received for CTRTs.
We do agree with industry to a certain extent that removal of oil
delivery mechanisms from units designed to combust fuel oil and CTRTs
does not support a conclusive decision that the CTRTs are now being
``discarded.'' While contamination levels may be higher when compared
to natural gas, these particular facilities have demonstrated the
ability to combust fuel oil along with CTRTs and should not be
penalized for switching to a cleaner fuel. As discussed in section
V.C.3. of this preamble, the information from industry stated that
while stoker, bubbling bed or fluidized bed boilers at major source
\133\ paper mills are currently designed to combust both fuel oil and
CTRTs, few, if any, of these units may be combusting both fuel oil and
biomass in the future since those units will be switching from fuel oil
to natural gas for start-up periods and operations. The industry stated
that continued use of fuel oil during operation would result in higher
compliance costs and higher costs per Btu. Industry stated that the
switch to natural gas for operation requires replacement of start-up
fuel systems, and that the most efficient and least emitting start-up
systems use specialized burners for gas.
---------------------------------------------------------------------------
\133\ Section 112(a)(1) of the CAA defines the term ``major
source'' to mean any stationary source or group of stationary
sources located within a contiguous area that emit or have the
potential to emit in the aggregate, 10 tons per year or more of any
hazardous air pollutant or 25 tons per year or more of any
combination of hazardous air pollutants.
---------------------------------------------------------------------------
The proposed rule, as noted above, outlined the additional approach
the Agency considered that would include as a categorical non-waste,
CTRTs that are combusted in existing units at major source pulp and
paper mills that have been modified in order to use clean fuel such as
natural gas, instead of fuel oil. The additional approach required that
such CTRTs only be combusted if certain conditions were met (in
addition to the requirement that the CTRTs had been processed) that
were intended to ensure that the CTRTs are not being discarded. Those
conditions included in the proposal are: The CTRTs must be combusted in
an existing stoker, bubbling bed or fluidized bed boiler; the CTRTs can
comprise no more than 40 percent of the fuel used on a monthly basis;
the boiler that burned the CTRTs must have been designed to burn both
fuel oil and biomass; and the boiler is modifying its design to burn
natural gas.
The Agency stated that the approach was meant to address only the
circumstance where fuel oil and biomass facilities were modified in
order to combust natural gas as a fuel for normal operations. The
facilities in this case would have been met the legitimacy criteria if
they did not switch to the cleaner natural gas fuel. The EPA now adopts
as a final determination the reasoning in the proposal that it is
appropriate for the Agency to decide that the switching to the cleaner
natural gas \134\ would not render the CTRT a waste fuel. The
facilities have demonstrated the ability to burn fuel oil and biomass
and should not be penalized for switching to a cleaner fuel. The CTRTs
do not become wastes solely because of the switch to natural gas.
Information indicating that CTRTs are an important part of the fuel mix
for these units due to the consistently lower moisture content and
higher Btu value as well as the benefits of drier more consistent fuel
to combustion units with significant swings in steam demand further
show that discard is not occurring.
---------------------------------------------------------------------------
\134\ The Agency recognizes natural gas as a source of clean
energy. The burning of natural gas produces nitrogen oxides and
carbon dioxide, but in lower quantities than burning coal or oil.
Methane, a primary component of natural gas and a greenhouse gas,
can also be emitted into the air when natural gas is not burned
completely. Similarly, methane can be emitted as the result of leaks
and losses during transportation. Emissions of sulfur dioxide and
mercury compounds from burning natural gas are negligible. (See
http://www.epa.gov/cleanenergy/energy-and-you/affect/natural-gas.html.)
---------------------------------------------------------------------------
As noted above, the Agency is adopting the additional approach with
some revisions. Specifically, based on comments received and
information in the rulemaking record, the Agency has sufficient
information to list as categorical non-wastes CTRTs that are processed
and combusted in units at major pulp and paper mills or units at power
production facilities subject to 40 CFR 63 Subpart DDDDD (Boiler MACT)
that combust CTRT and had been designed to burn biomass and fuel oil,
but are modified (e.g., oil delivery mechanisms are removed) in order
to use natural gas instead of fuel oil as part of normal operations and
not solely as part of start-up or shut-down operations. The CTRT may
continue to be combusted as a product fuel only if certain conditions
are met, which are intended to ensure that the CTRTs are not being
discarded:
CTRTs must be combusted in existing (i.e., commenced
construction prior to April 14, 2014) stoker, bubbling bed, fluidized
bed or hybrid suspension grate boilers; and
CTRTs can comprise no more than 40 percent of the fuel
that is used on an annual heat input basis.
The standard is applicable to existing CTRT units burning CTRTs
that had been designed to burn fuel oil and biomass and have been
modified to burn natural gas. The standard will also apply if an
existing CTRT unit designed to burn fuel oil and biomass is modified at
some point in the future.
The additional approach adopted for the final rule addresses only
the circumstance where contaminants in CTRTs are comparable to or less
than the traditional fuels the unit was originally designed to burn
(both fuel oil and biomass) but that design was modified in order to
combust natural gas. The approach is not a general means to circumvent
the contaminant legitimacy criterion by allowing combustion of any NHSM
with elevated contaminant levels, i.e., levels not comparable to the
traditional fuel the unit is currently designed to burn. The particular
facilities in this case had used CTRTs and would clearly be in
compliance with the legitimacy criteria if they did not switch to the
cleaner natural gas fuel. EPA determined that it is appropriate to
balance other relevant factors in this categorical non-waste
determination and that it is appropriate for the Agency to decide that
the switching to the cleaner natural gas would not render the CTRTs a
waste fuel in view of historical usage as a product fuel in stoker,
bubbling bed, fluidized bed and hybrid suspension grate boilers.
Based on comments received on the proposed rule, several revisions
were made in the additional approach for the final rule under section
241.7(a): (1) CTRTs combusted in units at power producers subject to 40
CFR part 63 Subpart DDDDD (Boiler MACT) were added to the categorical
listing; (2) the 40% fuel load limit was changed to an annual heat
input basis; regulatory
[[Page 6732]]
language was added stating that units combusting fuel oil and natural
gas as well as units that had switched from fuel oil to natural gas
must combust these materials as part of normal operations and not
solely for start-up or shut-down operations; and (4) hybrid suspension
grate boilers are added to the list of acceptable boilers and to
provide further clarity regarding CTRTs combusted in ``existing''
stoker, bubbling bed fluidized bed or hybrid suspension grate boilers,
existing is defined as April 14, 2014, the date of issuance of the
proposed rule.
See section V.C.6. Response to Comments for a further discussion of
the changes identified above. The Agency has also determined that
recordkeeping requirements under the Boiler MACT 40 CFR part 63 at
section 63.7555(d)(2) are sufficient to document compliance with these
standards. See section V.C.6. for a further discussion of recordkeeping
requirements.
5. Summary of Comments Requested
The proposed rule identified several issues pertaining to the
listing of CTRTs as categorical non-wastes and requested comment on
those issues which are summarized below (see also section V.C.6 of this
preamble):
Use of Multiple Fuels. The Agency requested comments specifically
on the use of multiple fuels for contaminant comparison in evaluating
whether to categorically list CTRTs, including whether fuel oil itself
should be one of the traditional fuels used for comparison given, and
any additional data that should be considered in making the
comparability determination.
Additional Approach. Regarding the additional approach under
consideration, the Agency requested comment on the approach and the
following conditions: whether the approach should be applied to sources
at other industries in addition to pulp and paper mills (e.g.,
utilities and co-generation plants); the appropriateness of the 40
percent limit as a percentage of fuel used including the monthly or
yearly basis for the limit; if the additional approach is applied to
other industries, such as utilities, what percentage (if any) would be
appropriate for that industry(s); and whether the approach should be
subject to recordkeeping requirements.
6. Responses to Comments
a. Specific Requests for Comment
i. Use of Multiple Fuels
Comment: Regarding the use of multiple fuels for contaminant
comparison in evaluating whether to categorically list CTRTs,
combustion units are often designed to burn multiple traditional fuels,
some relying on different fuel types at different times based on
availability of fuel supplies, market conditions, power demands, and
other factors. It would be arbitrary to restrict NHSM combustion for
energy recovery, based on contaminant comparison to only one
traditional fuel, if that unit could burn a second traditional fuel.
Response: As stated in the preamble to the February 7, 2013, NHSM
final rule, combustors may burn NHSMs as a product fuel if they compare
appropriately to any traditional fuel the unit can or does burn. (78 FR
9149) Combustion units are often designed to burn multiple traditional
fuels, and some units can and do rely on different fuel types at
different times based on availability of fuel supplies, market
conditions, power demands, and other factors. Under these
circumstances, it would be arbitrary to restrict the combustion for
energy recovery of NHSMs based on contaminant comparison to only one
traditional fuel if the unit could burn a second traditional fuel
chosen due to such changes in fuel supplies, market conditions, power
demands or other factors. The Agency agrees with the commenter and is
retaining the regulatory standard that CTRTs are categorical non-wastes
when combusted in units designed to burn both fuel oil and biomass.
ii. Additional Approach
Comment: As the EPA stated regarding the additional approach under
consideration, fuel switching from oil to natural gas is not evidence
of any motivation to discard CTRTs and should not affect the
classification of CTRTs as non-solid waste for combustion purposes. The
modification has nothing to do with the properties of CTRTs or the
burning of CTRTs for energy recovery, but is due to unrelated market
conditions for fuel oil and natural gas. The listing should not be
limited to only units ``that are currently designed to burn both
biomass and fuel oil but are changing (i.e., removing oil delivery
equipment) in order to burn natural gas.'' There is no rational basis
for this limitation on unit type and it is unclear why the EPA limits
this proposed ``expansion.''
The EPA should also include units that have already switched from
fuel oil to natural gas or are currently being modified to switch from
fuel oil to natural gas, in addition to those that will switch from
fuel oil to natural gas in the future. Many pulp and paper mills
formerly combusted fuel oil, but have already moved or are moving away
from fuel oil to natural gas. The EPA's rationale applies equally in
each case.
Moreover, if the EPA retains the limitation on the types of boilers
at pulp and paper mills that can combust CTRTs under the expanded
listing, hybrid suspension grate boilers should be added to that list
because they are similar to the listed boilers and combust CTRTs, as
well as other biomass fuels.
Response: The Agency has determined that the additional approach
must be limited to units that are currently designed to burn both
biomass and fuel oil but are modified (e.g., removed oil delivery
mechanisms) in order to burn natural gas as part of normal operations
and not solely as part of start-up or shut-down operations. As
discussed above, the particular facilities in this case have used CTRTs
and would clearly be in compliance with the legitimacy criteria if they
did not switch to the cleaner natural gas fuel. It is appropriate to
balance other relevant factors in this categorical non-waste
determination and it is appropriate for the Agency to decide that the
switching to the cleaner natural gas would not render the CTRTs a waste
fuel in view of the historical usage as a product fuel in the stoker,
bubbling bed, and fluidized bed boilers. The nature of the CTRTs as a
product fuel does not make it a waste on switching to the cleaner
natural gas for the boiler.
Thus, combustion of CTRTs in boiler units in the sectors identified
above that are designed to burn both biomass and fuel oil but have been
modified to burn biomass and natural gas should not be considered
discard. The additional approach is meant to address only the
circumstance where contaminants in CTRTs are comparable to or less than
the traditional fuels the unit was designed to burn (both fuel oil and
biomass) but that design has been modified in order to combust natural
gas. The approach is not a general means to circumvent the contaminant
legitimacy criterion by allowing combustion of any NHSM with elevated
contaminant levels, i.e., levels not comparable to the traditional fuel
the unit is currently designed to burn.
Based on information from industry that in addition to stoker,
bubbling bed and fluidized bed boilers, hybrid suspension grate (HSG)
boilers also combust CTRT,\135\ the Agency is extending the additional
approach to CTRT combusted in HSG boilers. The
[[Page 6733]]
Agency notes, however, that use of that boiler type for combustion of
CTRT as the primary fuel may be limited. Review of HSG boilers in the
Boiler MACT Database (ICR No. 2286.01) (Version 4), indicates that all
of the boilers in the HSG subcategory fire bagasse fuels as the primary
fuel, and none report routine firing of other types of biomass fuels or
CTRTs. When the EPA finalized the HSG subcategory (76 FR 15634, March
21, 2011) the rationale for adding the subcategory was that for
combustion-related pollutants (used as a surrogate for organic HAP
emissions), the design differences for such hybrid suspension grate
boilers are significant, and combustion conditions in these types of
units are not similar to those in dutch ovens or true suspension
burners that combust fine, dry fuels. The rationale was provided solely
in the context of hybrid suspension/grate boilers designed to combust
very wet biomass fuels such as bagasse. Bagasse fuels have a moisture
content ranging between 40 and over 60 percent moisture content. By
contrast, CTRTs have a moisture content of 20 percent on average.\136\
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\135\ See EPA-HQ-RCRA-2013-0110-0076 in the docket for this
final rule.
\136\ http://www.rta.org/assets/docs/RTASponsoredResearch/Environmental/creosote%20tie%20evaluation%20article%20_4_.pdf.
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On November 5th, 2015, EPA signed a final reconsideration for the
Boiler MACT. In that action, the definition of the HSG subcategory was
modified to require demonstration of the 40 percent moisture level (as-
fired basis) using monthly fuel analysis, instead of a 40 percent
moisture level on an annual average heat input basis. The addition of
the monthly requirement will require consistently high moisture
contents of the fuels fired in HSG boilers thus limiting the use of the
drier CTRT.
Comment: The EPA's proposed approach should not include conditions
specifying a CTRT fuel use limit of 40 percent on a monthly basis for
the clean fuel modified unit listing (i.e., CTRTs combusted in units at
major source pulp and paper mills that are being modified in order to
use clean fuel such as natural gas, instead of fuel oil). There is no
rational basis for this limitation, since a percentage cap has nothing
to do with whether or not a material is discarded, and the EPA did not
demonstrate that this limit would provide any greater environmental
protection. In addition, the EPA should not limit the clean fuel
modified unit category to units located only at major source pulp and
paper mills. There is no reason why this should be an industry-specific
provision. A number of biomass boilers in both the forest products and
biomass power industries rely on CTRT fuel, and the EPA has information
in the record showing that a variety of other industry sectors
currently combust railroad ties, including utilities and chemical
manufacturing facilities.
Response: The Agency is adopting the conditions under the
additional approach intended to ensure that the CTRTs are not being
discarded, including the condition that CTRTs can comprise no more than
40 percent of the fuel used on an annual heat input basis. While this
commenter disagreed on the proposed 40 percent limit on use of CTRTs in
units that were once designed to burn fuel oil but do not any longer,
we note that other commenters expressed support for this approach.\137\
As discussed in footnote 114, statements from the pulp and paper
industry indicate that CTRTs generally comprise 40% of the total fuel
load. EPA also reviewed information from the Boiler MACT database as
well as similar information obtained for CISWI units, and noted that
the reported annual heat input rates for CTRTs for units that reported
firing this material did not exceed 13 percent. Considering that CTRTs
have elevated contaminants compared to biomass and natural gas,
allowing a fuel usage percentage greater than industry has typically
used previously could be indicative of discard. Therefore, the Agency
is maintaining the 40 percent usage limitation as a reasonable
condition for the categorical non-waste determination for CTRTs in
units that have been modified to burn biomass and natural gas instead
of biomass and fuel oil.
---------------------------------------------------------------------------
\137\ See docket comment EPA-HQ-RCRA-2013-0110-0082.
---------------------------------------------------------------------------
We have also determined that the annual heat input basis is the
appropriate measure for facilities to use instead of the proposed
monthly basis. Several commenters stated that facilities already
measure and keep records on an annual basis, and we have noted that the
subcategory applicability records required by the major source boiler
NESHAP are on an annual heat input basis as well. Thus this approach
maintains consistency with other recordkeeping requirements required
under other rules and practices already in place.
This non-waste determination approach is also extended to CTRTs
combusted in units at power production facilities subject to 40 CFR
part 63 Subpart DDDDD (Boiler MACT) in addition to major source pulp
and paper mills. The information sources cited above indicate that
these types of units may combust both CTRTs and fuel oil. The sources
did not show that chemical manufacturing facilities combust both types
of fuels, thus these facilities were not included in the categorical
non-waste determination for units that have been modified to burn
biomass and natural gas instead of biomass and fuel oil.\138\
---------------------------------------------------------------------------
\138\ 40 CFR 241.2 defines power producer as a boiler unit
producing electricity for sale to the grid. The term does not
include units meeting the definition of electricity generating unit
under 40 CFR 63.10042 of the Utility Mercury and Air Toxics
Standards rule.
---------------------------------------------------------------------------
Comment: With regard to whether combustors should be required to
keep records that the conditions for burning of CTRTs described above
have been met, and the additional recordkeeping requirements to show
that the conditions in the additional approach are met, are
unnecessary. Any potential issues should already be adequately
addressed by the recordkeeping provisions already in place in
applicable Boiler MACT and NSPS requirements, state and local
regulatory requirements, and facility permits. Further, the existence
of a record does not demonstrate whether or not discard is occurring
under RCRA. The EPA should continue to rely on the record-keeping
requirements under the Clean Air Act rules.
Other commenters supported such recordkeeping requirements,
explaining that the EPA and/or delegated state or local air agencies
will have no way to ensure compliance with the conditions without
requiring recordkeeping. If required, recordkeeping should be
streamlined with air quality requirements, in other words, one system
may support the NHSM determination and air pollution control
requirements.
Response: The Agency has concluded that additional specific
recordkeeping requirements are not required to determine compliance
with the additional approach. Current recordkeeping requirements for
boilers under 40 CFR 63.7555 require documentation that the material is
listed as a categorical non-waste under Sec. 241.4(a) of this chapter,
which would include records demonstrating adherence to any conditions
applied to the categorical non-waste determination, such as the 40
percent annual heat input limitation.
b. Additional Comments
Comment: The EPA should expand this additional approach to allow
the combustion of CTRTs in biomass boilers, and specifically, biomass
boilers that have already or in the future will convert from coal to
biomass. The
[[Page 6734]]
conversion of a unit from coal to biomass reduces the steam generation
capacity compared to the original design. A portion of a higher Btu
fuel (such as CTRTs) is incorporated into the mix to make the
conversion successful.
It is environmentally preferable to avoid the use of coal or fuel
oil for that higher Btu fuel, and the EPA shouldn't discourage
facilities from switching to biomass by not allowing the co-firing of
CTRTs. The EPA can balance other factors against the contaminant
legitimacy criterion, and the environmental benefits of coal-to-biomass
conversion are a relevant factor to be considered.
Many biomass boilers in the forest products industry rely on CTRT
fuel but are not current or former users of either oil or coal. CTRT is
a significant fuel for a number of biomass plants and will become
increasingly important as facilities are forced to secure feedstocks
from non-forest product sources.
The biomass power industry operates with mostly grid-connected
standalone power plants which use organic materials in the production
of energy. These commenters reported that 20-35 percent of the organic
materials used in these facilities are CTRTs, stressing that CTRTs
enhance boiler performance and efficiency, and are therefore valuable
to these facilities because of their high BTU value, low moisture
content, and low ash.
Biomass power facilities may also be subject to Renewable Portfolio
Standards which provide states with a mechanism to increase renewable
energy generation. Such programs require energy utilities to supply a
minimum amount of customer load from eligible renewable energy sources,
such as biomass rather than fossil fuel sources such as fuel oil.
Response: The Agency recognizes the importance of CTRTs as a fuel
to the biomass power industry and to boilers designed specifically for
the use of biomass as a fuel. Indeed, there may be environmental
benefits to allowing CTRT use. The statutory requirement under RCRA,
however, is to determine whether the material is a waste when burned as
a fuel. The environmental and efficiency benefits, moreover, would
accrue if the facilities were burning under CAA 112 or 129. Thus, most
of the policy arguments propounded by the comment may be valid but not
necessarily relevant to whether material is discarded.
The key for the facilities discussed in the comment is the use of
both fuel oil and biomass as fuels that the facilities are designed to
burn. Since the comment discusses facilities that do not use fuel oil
in their fuel mix now or in the past, they do not meet legitimacy
criteria for contaminant comparison and will not be eligible for the
categorical listing regarding CTRTs. Under these conditions, the CTRTs
have been discarded when they are burned as a fuel.
Comment: The EPA's proposal included the combustion of CTRTs as a
non-waste fuel, and stressed that these materials are a valuable
commodity and a legitimate alternative fuel. However, combustion of
CTRTs should not be limited to only units ``designed to burn biomass
and fuel oil.'' Such limitations may be necessary when evaluating case-
by-case NHSMs against the legitimacy criteria, but, they are not
appropriate for the categorical listing of a non-waste fuel. For
example, in listing TDF (tire-derived fuel) as a categorical
non[hyphen]waste fuel, the EPA compared the contaminants in scrap tires
to the contaminants in coal, which was considered the traditional fuel
that TDF typically replaces, to satisfy the third legitimacy criterion.
However, it is important to note that no ``designed to burn''
conditions are included in the categorical non[hyphen]waste listing for
TDF. TDF are NHSMs that are categorically not solid waste when used as
fuel in a combustion unit. Therefore, the specification of ``designed
to burn'' conditions associated with the proposed non[hyphen]waste fuel
listing for CTRTs is inconsistent with previous rulemakings and
non[hyphen]waste fuel determinations.
The ``designed to burn'' condition was intended to determine which
traditional fuels should be the basis of comparison for the contaminant
levels in the material under evaluation as a non[hyphen]waste fuel, not
to put limitations on the use of the NHSM as non[hyphen]waste fuel. As
the EPA stated ``the reason we analyze what a unit is designed to burn
is to decide the traditional fuel(s) to which contaminants should be
compared. This comparison is then used as an aid to decide whether the
NHSM is being legitimately used as a fuel or whether excess
contaminants show that the burning is waste treatment'' (78 FR 9149).
Response: The Agency disagrees that designed to burn conditions or
limitations are inappropriate for categorical non-waste determinations.
Further, the commenter's argument as to why the ``designed to burn''
condition should not put limitations on the use of the NHSM as
non[hyphen]waste fuel is unclear. The purpose of the designed to burn
condition is to ensure a facility is not combusting CTRTs as a means of
discard. Discard would be occurring if the unit is not designed to burn
CTRTs with elevated levels of PAHs. As discussed in section V.C.4. of
this preamble, to meet legitimacy criteria and ensure discard is not
occurring, any categorical non-waste (as well as materials determined
to be non-waste on a case-by-case basis) must contain contaminants or
groups of contaminants at levels comparable in concentration to or
lower than those in the traditional fuel(s) which the combustion unit
is designed to burn (40 CFR 241.3(d)(1)(iii), 40 CFR 241.4(b)). If a
facility compared contaminants to a traditional fuel that the unit is
not designed to burn, and the fuel is highly contaminated, combustion
of that fuel would be considered discard.
As further discussed in section V.C.4. of this preamble, for CTRTs,
the Agency considered traditional fuel contaminant comparison
information for biomass, fuel oil and coal. To meet the contaminant
legitimacy criterion, the Agency determined that CTRTs must be
combusted in units designed to burn biomass and fuel oil due to
elevated levels of SVOCs, or as described, above in specific industry
facilities that have switched from burning fuel oil and biomass to
natural gas and fuel oil. Units designed to burn both biomass and fuel
oil may, in addition, burn coal or other traditional fuels if the unit
is also designed to burn that material. With respect to the comment's
view of the TDF categorical listing, the EPA first notes that that
listing has not been reopened for any comment. Regardless, the EPA
disagrees with the comment that there is no designed to burn provision
in the categorical listing. Any categorical listing imposes a
requirement that legitimacy criteria must be met, as is the case for
any material burned as a fuel in order to be burned as a product fuel.
Facilities that are not designed to burn coal may not burn TDF because
they will be burning a ``dirtier'' fuel than would normally be burned
by the facility. While a separate case-by-case determination regarding
contaminants does not have to be made, TDF may not be burned in an oil
or gas-fired facility under CAA section 112. In such a case there would
be substantial burning of waste contaminants, which would result in the
application of CAA section 129 standards.
The categorical listing for tires was based on the determination
made in the March 21, 2011 rule (76 FR 15456) that TDF had contaminants
at levels comparable to or less than coal, the traditional fuel which
TDF would replace.139 140 The Agency did not
[[Page 6735]]
receive information on contaminant comparisons to other traditional
fuels besides coal. It is not necessary for the EPA to repeat the
importance of the legitimacy criteria in every provision in its
regulations.
---------------------------------------------------------------------------
\139\ See 78 FR 9154.
\140\ See 76 FR 15494.
---------------------------------------------------------------------------
Comment: Seven boilers at a facility are built and designed as
biomass boilers, and use fossil fuels for startup and flame
stabilization. However, only three of the boilers are permitted and
equipped to burn fuel oil, and the remaining units are permitted and
equipped to use natural gas. The categorical listing of CTRTs as a non-
waste fuel in units designed to burn fuel oil would only allow listing
CTRTs as a fuel for one of its facilities (three boilers), while being
a waste in the others, despite each of the units being designed to burn
primarily solid fuels such as CTRT.
CTRTs should be allowed to be used as a fuel in units designed,
built and operated to burn biomass, provided that the units are
operated in compliance with their air permit regardless of their
capacity to burn fuel oil. These units are designed to burn solid
fuels, and CTRTs are a solid fuel. Requiring boilers to be equipped
with fuel oil delivery systems would result in unnecessary permitting
and burden with no environmental benefit. The commenter further notes
that the EPA's concerns on combustion by-products and PAH are best
addressed through air permitting.
Response: The Agency does not agree that CTRTs should be allowed to
be used as a fuel in units designed to burn only biomass. In order to
legitimately combust CTRTs, the unit must be designed to burn both
biomass and fuel oil. As stated in section V.C.4.b.iii., of this
preamble, where a combustion unit is designed to only burn biomass, the
EPA compared contaminant levels in CTRTs to contaminant levels in
biomass. In this scenario, the total SVOC levels can reach 22,883 ppm,
driven by high levels of PAHs and, to a lesser extent, the levels of
dibenzofuran and biphenyl.\141\ These compounds are largely nonexistent
in clean wood and biomass, and the contaminants are therefore not
comparable in this instance. In fact, they are present at orders of
magnitude higher than found in clean wood and biomass. Thus, if a unit
combusts CTRTs and the unit is designed to burn only biomass, the unit
would be able to burn excessive levels of contaminants, which would be
waste components. This would constitute discard.
---------------------------------------------------------------------------
\141\ We note that for several SVOCs--cresols,
hexachlorobenzene, and 2,4-dinitrotoluene, which were expected to be
in creosote, and for which information was specifically requested in
the February 7, 2013 NHSM final rule (78 FR 9111), the data
demonstrate that they were not detectable, or were present at levels
so low to be considered comparable.
---------------------------------------------------------------------------
The Agency also disagrees that because the units are operated in
compliance with the air permits, the units should be allowed to burn
CTRTs regardless of the capacity to burn fuel oil. The determination
whether CTRTs are a waste or a non-waste and, thus, whether CTRTs can
be combusted in a particular unit is made prior to combustion of the
material. Emission standards, either CAA section 112 or CAA section
129, are applied through the permit based on the waste-non-waste
determination. The concept of the NHSM rule is to determine whether
particular materials should be burned as waste fuels or product fuels,
while the air permit emission standards help ensure protection of human
health and the environment for burning of the NHSM in the unit.
Comment: The EPA has stated that ``information indicating that
CTRTs are an important part of the fuel mix due to the consistently
lower moisture content and higher Btu value, as well as the benefits of
drier more consistent fuel to combustion units with significant swings
in steam demand, further suggest that discard is not occurring'' (79 FR
21028). This statement supports the determination that CTRTs are
functionally equivalent to traditional fuels they replace.
When balanced against the contaminant legitimacy criterion it
should outweigh any implication the EPA is inferring from the PAH
levels that discard is occurring. CTRTs may have higher concentrations
of such semi-volatile organic compounds in comparison to biomass, but
the EPA should give more weight to other factors demonstrating that
CTRTs are fuel rather than waste (such as the long[hyphen]standing
practice of purchasing CTRTs as a viable fuel source for boilers).
EPA also stated in the December 2011 preamble (76 FR 80471) that
``certain NHSMs may not meet the legitimacy criteria, especially the
`contaminant legitimacy criterion,' in all instances, but the material
would still generally be considered a non-waste fuel.'' It is
appropriate to balance the legitimacy criteria and other relevant
factors in determining that a NHSM is not a solid waste when used as a
fuel in a combustion unit. The motivation of the combustor is a
significant factor that should be considered in a non-waste
determination. CTRTs are generally purchased under contracts to provide
a reliable, cost-effective fuel source, rather than burned to destroy a
group of contaminants. Use of CTRTs are important in reducing carbon
dioxide emissions, maintaining capacity for managing agricultural
biomass and urban wood, and the continued economic viability of many
facilities as relevant factors for the EPA to balance with the
contaminant legitimacy criterion.
Response: In the first instance, the EPA must correct the comment's
statement that materials are either fuels or wastes. The very basis of
the EPA's NHSM rule is that we need to determine whether materials
burned as fuels are wastes or products. The fact that the Agency agrees
that material is a good fuel does not mean it is a product fuel. All
legitimacy criteria must be met.
Further, the EPA disagrees that elevated PAH levels should not
compel the conclusion that CTRTs can only be combusted as product fuels
in units designed to burn fuel oil or in existing units that had
combusted fuel oil in the past and switched to a cleaner natural gas
fuel. As discussed in the February 7, 2013 final rule and the proposed
rule (79 FR 21027), the Agency can list an NHSM categorically by
balancing the legitimacy criteria against other relevant factors (40
CFR 241.4(b)(5)(ii)) as is done for CTRTs combusted in existing units
that had switched to natural gas. However, balancing does not mean the
Agency can simply ignore any of the legitimacy criteria no matter the
type of levels or contaminants because the material is a source of fuel
with higher Btu value and low moisture. In the case of CTRTs, to the
extent that a combustion unit was never designed to burn fuel oil and
biomass, the traditional fuels that are most comparable to CTRTs, the
Agency would be allowing toxic contaminants that are present in the
CTRTs several orders of magnitude higher than what is found in the
traditional fuel. While the Agency recognizes that other relevant
factors, including purchase of the material as a commodity for its fuel
value, may be considered when one of the legitimacy criteria are not
met, we do not agree that consideration of such factors would allow the
EPA to undermine the legitimacy criterion if it is inconsistent with
the concept of discard.
By adopting the approach suggested by the commenters, the Agency
would be allowing any biomass-based material that is significantly
contaminated to be burned in any combustion unit, including residential
and commercial boilers. We also do not agree with petitioner's claim
that CTRTs are functionally the same as other
[[Page 6736]]
comparable traditional fuels. Unlike traditional fuels, CTRTs must be
processed by reclamation companies to remove metals (spikes, nails
etc.) and shredded into chips to make it suitable as a new fuel
product.
Comment: Cement kilns can utilize a wide variety of fuels and
should be included as an acceptable fuel end-user for CTRT non-waste
fuels. If the EPA retains the ``designed-to-burn'' condition, the EPA
should state that a source that burns coal and fuel oil, such as cement
kilns, also qualifies for the use of CTRTs as a categorically exempt
non-waste NHSM. Currently, a source with a combustion unit that
predominantly burns coal and fuel oil has to infer that the categorical
non-waste NHSM exemption for CTRTs applies based on Footnote 96 (79 FR
21025, April 14, 2014). More clarity would be present if the exemption
specifically referenced coal, coke, biomass, and fuel oil fired
combustion units.
Response: The Agency notes first that the comment is in error by
characterizing the listing of CTRTs as a categorically ``exempt'' non-
waste. Such determinations are not exempting those materials from the
solid waste definition under the RCRA. The part 241 standards overall
determine whether materials are solid wastes under the RCRA and must be
combusted in units meeting CAA 129 standards, or not solid wastes under
the RCRA, and can be combusted in units meeting CAA 112 standards. This
rule determines whether or not materials are categorical non-wastes. At
no point is the EPA ``exempting'' or ``excluding'' material from the
solid waste definition.
The Agency agrees that more clarity is needed regarding combustion
of CTRTs in units designed to burn coal in addition to biomass and fuel
oil (information was not received by the Agency regarding coke).
Footnote 96 in the proposal, cited by the commenter, stated that units
designed to burn both biomass and fuel oil may, in addition, burn coal
if the unit is also designed to burn that material and still be
eligible for the categorical non-waste determination. Cement kilns are
an example of a combustor that may have the ability to combust all
fuels (see also discussion on cement kilns in C&D wood in section
V.A.5. of this preamble).
To provide additional clarity regarding units designed to burn
coal, fuel oil and CTRTs, the footnote was deleted, and an expanded
explanation was provided in section V.C.4. of this preamble stating
that the EPA considered two scenarios for units that combust CTRTs,
fuel oil and coal. For purposes of contaminant comparison to that
traditional fuel, the EPA considered two scenarios.
In the first scenario, where CTRTs were combusted in units designed
to burn only coal and biomass, contaminant levels in CTRTs were
compared to those two traditional fuels.\142\ In this scenario, maximum
levels of SVOCs in CTRTs (22,883 ppm) exceeded those in coal (2,343
ppm) and biomass (SVOC levels largely non-existent). Thus, units that
are designed to burn only coal and biomass would not meet the
legitimacy criterion for contaminant comparison to CTRTs. This shows
that discard is occurring.
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\142\ Contaminant levels in coal presented in ``Contaminant
Concentrations in Traditional Fuels: Tables for Comparison''
document available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various
literature sources and from data submitted to USEPA, Office of Air
Quality Planning and Standards (OAQPS).
---------------------------------------------------------------------------
In the second scenario, a combustion unit is designed to burn coal,
biomass and fuel oil. SVOCs are present in CTRTs (up to 22,883 ppm) at
levels well exceeding those in coal and biomass but within the range
observed in fuel oil (up to 54,700 ppm). As previously mentioned,
fluorine, and nitrogen levels in CTRTs are present at elevated levels
when compared to fuel oil. However, the highest levels of fluorine (100
ppm) and nitrogen (14,400 ppm) are comparable to, or well within, the
levels of these contaminants in biomass. All other contaminants in
CTRTs are comparable to those in coal. Thus, CTRTs can be combusted in
units burning coal, but only if the unit is also designed to burn fuel
oil and biomass. CTRTs have comparable contaminant levels in units
designed to burn biomass, fuel oil and coal, and as such, meet this
legitimacy criterion if used in facilities that are designed to burn
those traditional fuels.\143\
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\143\ As discussed previously, the March 21, 2011 NHSM final
rule (76 FR 15456), noting the presence of hexachlorobenzene and
dinitrotoluene, suggested that creosote-treated lumber include
contaminants at levels that are not comparable to those found in
wood or coal, the fuel that creosote-treated wood would replace, and
would thus be considered solid wastes. This final rule differs in
several respects from the conclusions in the March 21, 2011 rule.
This final rule concludes that CTRTs are a categorical non-waste
when combusted in units designed to burn both fuel oil and biomass.
The March 21, 2011 rule, using 1990 data on railroad cross ties, was
based on contaminant comparisons to coal and biomass and not fuel
oil. As discussed above, when compared to fuel oil, total SVOC
contaminant concentrations (which would include dinitrotoluene and
hexachlorobenzene) in CTRTs would be less that those found in fuel
oil, and in fact, the 2012 data referenced in this final rule showed
non-detects for those two contaminants.
---------------------------------------------------------------------------
In addition to units combusting biomass, fuel oil and coal,
consistent with the discussion above, CTRTs also can be combusted in
units at major pulp and paper mills and in units at power production
facilities subject to the Boiler MACT that had been designed to burn
biomass, fuel oil and coal but were modified (e.g., oil delivery
equipment removed) in order to use natural gas instead of fuel oil. The
CTRT may continue to be combusted as a product fuel only if certain
conditions were met, described above, which are all intended to ensure
that the CTRTs are not being discarded.
Comment: Start-up and shut down operating scenarios are sufficient
to demonstrate a source's ability to meet a designed to burn criteria
for fuel oil. Not including those scenarios is not supported by
previous U.S. EPA policy nor by the language in 40 CFR
241.3(d)(1)(iii), which includes the phrase ``. . . may choose a
traditional fuel that can be or is burned in the particular type of
combustion unit . . .''
The EPA's use of ``can be'' is inconsistent with the language in
the preamble: ``We would like to make clear that the Agency would
consider units to meet this requirement if the unit combusts fuel oil
as part of the normal operations and not solely as part of start-up or
shut down operations.'' The EPA should restate this sentence as ``We
would like to make clear that the Agency would consider units to meet
this requirement if the unit can combust fuel oil as part of the normal
operations which includes periods of start-up or shut down
operations.''
Response: The Agency disagrees that start-up and shut-down of
sources is considered normal operations for the purposes of determining
whether a unit is designed to burn a traditional fuel used for
contaminant comparison. With regard to meeting the design to burn
criteria, the Agency considers normal operations to be a unit that
contains burners capable of firing fuel oil as the primary fuel during
periods of steady state operations or periods where the fired oil is
used as a supplemental fuel to maintain consistent heat input during
steady state operations. Specific regulatory language is added in this
final rule to clarify that the listing applies only to units designed
to burn both biomass and fuel oil as part of normal operations and not
just start-up and shut-down operations, as well as units at major
source pulp and paper mills or power producers that were modified
(e.g., oil delivery mechanisms were removed) in order to use natural
gas as part of normal operations and not just start-up and shut down
operations (see section 241.4(a)(7)).
[[Page 6737]]
Comment: The EPA should expand the definition of CTRTs to include
ties dual treated with creosote and borate. As proposed, the definition
is limited to railway support ties treated with a wood preservative
containing creosols and phenols and made from coal tar oil. CTRTs may
also be treated with a combination of borate and creosote. Use of
borate-based compounds has recently become prevalent for the protection
of railroad crossties. Use of borate allows for treatment of the inner
layers of wood (or heartwood), while creosote typically only treats
sapwood. Encapsulating the borate-treated crosstie with creosote adds a
hydrophobic outer layer of protection and a barrier that repels white-
rot fungi. Borate treatment also reduces the amount of creosote that
needs to be used in crossties.
The EPA has already reviewed data that demonstrates that the levels
of contaminants in borate-treated wood are comparable to those found in
unadulterated wood. The December, 2013, data submitted to the EPA by
the Treated Wood Council,\144\ demonstrate that wood dual treated with
both borate and creosote has lower PAH levels (and lower metals levels)
than wood that is treated with creosote alone. Furthermore, the
combination of creosote and borate is not expected to yield unwanted
synergistic chemical reactions, based on one example of a patented
process that treats wood simultaneously using a blended solution of
creosote and borate.
---------------------------------------------------------------------------
\144\ Included in the docket for this final rule.
---------------------------------------------------------------------------
Because the EPA has already established that CTRTs meet the other
two legitimacy criteria (managed as a valuable commodity and having
meaningful heat value), all three legitimacy criteria are met for
borate-treated wood. As such, ties treated with a combination of
creosote and borate also meet the criteria and should be included in
this rulemaking.
Various consequences may arise if the EPA fails to include dual-
treated ties in the non-waste listing. First, the utility of the CTRT
non-waste listing would be short-lived, as most newer ties are treated
with borate as well as creosote. Secondly, because borate is typically
applied first and then covered with creosote treatment, suppliers will
struggle to distinguish between the two types of ties. Although these
newer ties are likely to be in service currently, when they need to be
replaced they would likely be processed with creosote-only-treated
ties, this would create uncertainty regarding the waste status of all
railroad ties, and the CTRT processing industry would be adversely
affected.
Some CTRT business partners are evaluating investments in new CTRT
processing facilities that are located closer to the facilities that
combust them, in order to address transportation costs, but these
partners would have stranded assets when dual-treated ties begin to be
removed from service, and the uncertainty would prevent investments
from being made.
Response: The EPA disagrees that the definition of CTRTs should be
expanded to include dual treated creosote and borate ties (dual-treated
ties) based on the data received. Unlike CTRTs, the December 2013 data
for dual-treated ties cited above was limited to a single data
point.\145\ A single data point does not provide enough information
that the data analyzed are truly representative of the category of
material under consideration, and the legitimacy criterion for
contaminants comparable to or less than the traditional fuel the unit
is designed to burn has been met. Thus, no determination can be made
whether or not the material has been discarded, and is a waste or non-
waste. As the record indicates in previous categorical determinations,
including CTRTs, multiple unique analytical data points were considered
in making categorical determinations.
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\145\ See also discussion under Comments and Information
Received on Other Types of Treated Wood section V.A.6.c.
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Several consequences of not including dual-treated ties in this
categorical determination are identified. The first suggested
consequence stated that most newer ties are treated with borate and the
utility of a creosote only categorical listing would be short-lived. As
indicated, this final rule determination on dual-treated ties is based
on a single data point, however, the EPA could revisit that
determination in the future should additional data be made available.
Further, not including dual-treated ties in this rule's CTRT
categorical determination does not necessarily preclude suppliers from
determining that dual-treated ties are non-wastes. Instead of relying
on this rule's categorical non-waste determination, the suppliers can
instead follow the procedures outlined in 40 CFR 241.3 to make a non-
waste determination specific to their product.
The commenter also suggests that suppliers and CTRT processing
facilities may have difficulty in distinguishing between CTRTs and
dual-treated ties. These statements, however, are inconsistent with
information received by the Agency on management of CTRTs. As stated in
section V.C.1. of this preamble, contracts for the purchase and
combustion of CTRTs may include fuel specifications limiting
contaminants, such as metal, and precluding the receipt of wood treated
with preservatives other than creosote.
Comment: The EPA does not indicate in the proposal how CTRTs are to
be processed to qualify as a non-waste fuel. The EPA has also not
included in the proposal any requirements that processing of CTRTs must
be conducted using best management practices. The EPA should include in
the final rule requirements for processing of CTRTs that include
specific criteria for best management practices.
Response: The Agency agrees the rule should include language
identifying how CTRTs are to be processed to qualify as a non-waste
fuel. The language in the proposed rule stated the following was a
categorical non-waste under 40 CFR 241.4 ``Creosote-treated railroad
ties that are processed (emphasis added) and combusted in units
designed to burn both biomass and fuel oil.''
Ties that are not processed into a new product fuel that meets
legitimacy criteria would be considered discarded, but the rule did not
specifically identify how the ties should be processed. As discussed in
section V.C.4. of this preamble, certain practices are standard within
the industry for the processing of cross-ties into fuel by reclamation/
processing companies. Specifically, metals (spikes, nails, plates,
etc.) are removed using a magnet which may occur several times during
the process. The cross-ties are then ground or shredded to a specified
size depending on the particular needs of the end-use combustor.
To provide specificity as to how CTRTs must be processed to meet
the requirements of the categorical non-waste standard, the language
pertaining to CTRTs as a categorical non-waste fuel under 40 CFR 241.4
is amended as follows: ``Creosote-treated railroad ties that are
processed and then combusted in units designed to burn both biomass and
fuel oil as part of normal operations and not solely as part of start-
up or shut-down operations. Processing must include, at a minimum,
metal removal and shredding or grinding.
Comment: The EPA bases its treatment of CTRTs as fuel on an
incorrect, arbitrary conclusion, reflected in this preamble statement:
``CTRTs removed from service and stored in a railroad right of way or
other location for long periods of time--that is, a year or longer,
without a determination regarding their final end use (e.g.,
[[Page 6738]]
landscaping, as a fuel or land filled) indicates that the material has
been discarded and is a solid waste.'' This statement reflects a
complete misunderstanding of how CTRTs are processed and treated in the
marketplace. Often times, CTRTs are transported a significant distance
to the end user of the ties and therefore, those ties may need to be
stored long enough to provide a shipment at a cost-effective freight
rate. The availability of CTRTs may not always match the demand for
CTRTs. Significant deconstruction of a railway could occur at a time
when the marketplace for CTRTs as a fuel is flooded. Thus, storage of
CTRTs is reasonable and by no means indicates that CTRTs are discarded.
Response: The EPA disagrees that lack of cost-effective freight
rates and variability in demand would result in a determination that
CTRTs are not discarded. Such factors show that the value of ties as a
commodity in the marketplace is predicated in part on these variables.
The material would, in such cases, be speculatively accumulated with no
clear market value. The fact that they may at some point in the future
have value as a commodity does not render them non-wastes. Thus, the
Agency sees no reason to reconsider its conclusion that CTRTs removed
from service that may be stored in a railroad right of way or other
location for long periods of time--that is, a year or longer, without a
determination regarding their final end use shows that the material has
been discarded and is a solid waste.
c. Comments and Information Received on Other Types of Treated Railroad
Ties
The Agency received a petition from the Treated Wood Council in
April 2013 requesting that nonhazardous treated wood (including borate
and copper naphtenate) be categorically listed as non-waste fuels in 40
CFR 241.4(a). Under the April 2013 petition, nonhazardous treated wood
would include waterborne borate based preservatives, waterborne organic
based preservatives, waterborne copper based wood preservatives
(ammoniacal/alkaline copper quat, copper azole, copper HDO, alkaline
copper betaine, or copper naphthenate); creosote; oilborne copper
naphthenate; pentachlorophenol; or dual-treated with any of the above.
In the course of EPA's review of the petition, additional data was
requested and received, and meetings were held between TWC and EPA
representatives.
In an August 21, 2015 letter from TWC to Barnes Johnson,\146\ TWC
requested that the Agency move forward quickly on a subset of materials
that were identified in the original April 2013 petition which are
creosote borate, copper naphtenate, and copper naphtenate-borate
treated railroad ties. In the letter, TWC indicated that these types of
ties are increasingly being used as alternatives to creosote treated
ties, and that the ability to reuse the ties is an important
consideration in rail tie purchasing decisions. The letter stated that
TWC will discuss the remaining treated wood materials with EPA as a
separate matter.
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\146\ Included in the docket for the final rule.
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The Agency has reviewed TWC information on the three treated
railroad ties, creosote borate, copper naphtenate, and copper
naphtenate-borate, submitted on September 11, 2015 and has requested
additional contaminant data which was submitted on October 5, 2015 and
October 19, 2015. Based on information provided to the Agency to date,
we believe these three treated railroad ties are candidates for
categorical non-waste listings and expect to begin development of a
proposed rule under 40 CFR 241.4(a) regarding those listings in the
near future.
The Agency understands the importance of the January 31, 2016
compliance deadline for existing boiler units and the need to make
decisions on fuel use by that deadline. Agency action on the three
treated railroad ties, however, must follow required action development
processes including public notice and comment required under the
Administrative Procedures Act. Due to such processes, the categorical
non-waste listing could not be completed prior to the January deadline.
The Agency emphasizes, however, that facilities may also make self-
determinations of their material under 40 CFR 241.3(b). In order to be
regulated under CAA section 112 rather than CAA section 129, a
combustion source can make a non-waste determination for the NHSM used
as fuel when managed within their control (241.3(b)(1)); or for fuel or
products produced from processed discarded NHSM (241.3(b)(4)). Prior to
the effective date of this rule, such self-determinations may apply to
materials categorically listed as non-wastes by this rule.
In an October 5, 2015 meeting with the Office of Management and
Budget under EO 12866, industry representatives indicated that although
the three types of RR ties are just coming into use, a few may have to
be replaced, collected and mixed in with cresosote treated railroad
ties by processor prior to being sent to the combustor. Industry
representatives were concerned that the presence of these small amounts
of creosote borate, copper naphtenate, and copper naphtenate-borate,
since they are not included in the categorical determination, would
render all of the creosote treated processed ties into solid wastes.
The Agency has determined that small (de minimis) amounts of such
materials would not result in determinations that the creosote ties
being combusted are solid wastes. This is supported by the rulemaking
record, specifically the discussion in the March 2011 final rule where
commenters argued that there should be a de minimis exemption for
processed C&D wood to address small or de minimis amounts of material
remaining on the wood. In response, the EPA acknowledged that ``C&D-
derived wood can contain de minimis amounts of contaminants and other
materials provided it meets the legitimacy criterion for contaminant
levels'' and thus, did not find it necessary to finalize a de minimis
exemption.\147\ That discussion supports the application of a de
minimis principle.
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\147\ See 76 FR 15486.
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VI. Technical Corrections
A. Change to 40 CFR 241.3(b)(2)
NHSMs that are not solid wastes when combusted are identified under
40 CFR 241.3(b). Paragraphs (i) and (ii) of 40 CFR 241.3(b)(2) were
reserved in response to the 40 CFR 241.4(a)(1) categorical non-waste
standards in the February 7, 2013 rulemaking. Those standards had
eliminated the need for previous standards under 40 CFR 241.3(b)(2)(i)
and (ii) related to scrap tires managed under established tire
collection programs and resinated wood (see section IV.A. History of
NHSM Rulemakings). However, reserving only 40 CFR 241.3(b)(2)(i) and
(ii), and not the introductory sentence, led to some confusion with the
categorical non-waste standards. For clarity, and to ensure consistent
numbering with the following sections, we proposed to amend 40 CFR
241.3(b)(2) by reserving paragraph (b)(2) in its entirety.
B. Change to 40 CFR 241.3(c)(1)
The description of the petition process identified in 40 CFR
241.3(c)(1) contains a typographical error. Specifically, the last
sentence of the 40 CFR 241.3(c)(1) regulatory text from the February
2013 final rule is stated as
[[Page 6739]]
follows: ``The determination will be based on whether the non-hazardous
secondary material that has been discarded is a legitimate fuel as
specified in paragraph (d)(1) of this section and on the following
criteria:''
However, the intent of this sentence is to say that the
determination is based on ``whether it has or has not been discarded''
in addition to other factors. Therefore, we proposed to amend the
regulatory text to add a ``not'' before ``been discarded'' and remove
``that'' after ``non-hazardous secondary material.'' The proposed
regulatory text, therefore, was ``. . . The determination will be based
on whether the non-hazardous secondary material has not been discarded
is a legitimate fuel as specified in paragraph (d)(1) of this section
and on the following criteria:''
A comment was received on the proposed amendments stating the word
``that'' appears to have been omitted in the last sentence, and should
be add to the sentence as shown in italics below:
``The determination will be based on whether the non-hazardous
secondary material that has not been discarded is a legitimate fuel as
specified in paragraph (d)(1) of this section and on the following
criteria . . .''
The Agency agrees with the commenter. The word ``that'' clarifies
the sentence's meaning and should not have been omitted. Thus, the
sentence in the final rule reads: ``The determination will be based on
whether the non-hazardous secondary material that has not been
discarded is a legitimate fuel as specified in paragraph (d)(1) of this
section and on the following criteria . . .''
C. Change to 40 CFR 241.3(d)(1)(iii)
The Agency also proposed to make a technical correction to 40 CFR
241.3(d)(1)(iii) to clarify that the provision applies to cement kilns,
as well as boilers. Specifically, that section of the rule identifies
the legitimacy criteria for NHSMs relating to contaminant comparisons
between the traditional fuel(s) a unit is designed to burn and the
NHSM. It states that a person may choose a traditional fuel that can be
burned in any type of boiler (emphasis added), whereas the rest of the
sentence refers to the combustion unit. Like a boiler, a cement kiln
that combusts any non-hazardous solid waste is subject to regulation as
a CISWI unit pursuant to section 129(g)(1) of the CAA. In order for a
cement kiln not to be classified as a CISWI unit, it must use a fuel
that is/has been determined to be a non-waste fuel under 40 CFR part
241 when combusted. Consistent with the section as a whole, the word
boiler is replaced with combustion unit to clarify that a person may
choose a traditional fuel that can be or is burned in a combustion
unit, which can be a cement kiln, as well as a boiler. Thus, the
proposed regulatory text was ``. . . In determining which traditional
fuel(s) a unit is designed to burn, persons may choose a traditional
fuel that can be or is burned in the particular type of combustion
unit, whether or not the combustion unit is permitted to burn that
traditional fuel . . . .'' The EPA received no comments on this
technical change and is issuing the rule in final, as proposed.
VII. Effect of This Rule on Other Programs
Beyond expanding the list of NHSMs that categorically qualify as
non-waste fuels, this rule does not change the effect of the NHSM
regulations on other programs as described in the March 21, 2011 NHSM
final rule, as amended on February 7, 2013 (78 FR 9138). Refer to
section VIII of the preamble to the March 21, 2011 NHSM final rule
\148\ for the discussion on the effect of the NHSM rule on other
programs.
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\148\ 76 FR 15456, March 21, 2011 (page 15545).
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VIII. State Authority
A. Relationship to State Programs
This final rule does not change the relationship to state programs
as described in the March 21, 2011 NHSM final rule. Refer to section IX
of the preamble to the March 21, 2011 NHSM final rule \149\ for the
discussion on state authority including, ``Applicability of State Solid
Waste Definitions and Beneficial Use Determinations'' and
``Clarifications on the Relationship to State Programs.'' The Agency,
however, would like to reiterate that this rule (like the March 21,
2011 and the February 7, 2013 final rules) is not intended to interfere
with a state's program authority over the general management of solid
waste.
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\149\ 76 FR 15456, March 21, 2011 (page 15546).
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B. State Adoption of the Rulemaking
No federal approval procedures for state adoption of this final
rule are included in this rulemaking action under RCRA subtitle D.
Although the EPA does promulgate criteria for solid waste landfills and
approves state municipal solid waste landfill permitting programs, RCRA
does not provide the EPA with authority to approve state programs
beyond those landfill permitting programs. While states are not
required to adopt regulations promulgated under RCRA subtitle D, some
states incorporate federal regulations by reference or have specific
state statutory requirements that their state program can be no more
stringent than the federal regulations. In those cases, the EPA
anticipates that, if required by state law, the changes being proposed
in this document, if finalized, will be incorporated (or possibly
adopted by authorized state air programs) consistent with the state's
laws and administrative procedures.
IX. Cost and Benefits
The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. This rulemaking
establishes a categorical non-waste listing for selected NHSMs under
RCRA. This categorical non-waste determination allows these materials
to be combusted as a product fuel in units, subject to the section 112
CAA emission standards, without being subject to a detailed case-by-
case analysis of the material(s) by individual combustion facilities,
provided they meet the conditions of the categorical listing. The rule
establishes no direct standards or requirements relative to how these
materials are managed or combusted. As a result, this action alone does
not directly invoke any costs \150\ or benefits. Rather, this RCRA
proposal is being developed to simplify the rules for identifying which
NHSMs are not solid wastes and to provide additional clarity and
direction for owners or operators of combustion facilities. In this
regard, this proposal provides a procedural benefit to the regulated
community, as well as the states through the establishment of
regulatory clarity and enhanced materials management certainty.
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\150\ Excluding minor administrative burden/cost (e.g., rule
familiarization).
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Because this RCRA action is definitional only, any costs or
benefits indirectly associated with this action would not occur without
the corresponding implementation of the relevant CAA rules. However, in
an effort to ensure rulemaking transparency, the EPA prepared an
assessment in support of this action that examines the scope and
direction of these indirect impacts, for both costs and benefits.\151\
A document discussing the effects of the proposed rule was available in
the docket for review. No comments were received on the assessment and
the document reflecting
[[Page 6740]]
the final rule has been placed in the rulemaking docket.
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\151\ U.S. EPA, Office of Resource Conservation and Recovery,
``Assessment of the Potential Costs, Benefits, and Other Impacts for
the Final Rule: Categorical Non-Waste Determination for Selected Non
Hazardous Secondary Materials (NHSMs): Construction and Demolition
Wood, Recycling Process Residuals, and Creosote-Treated Railroad
Ties'' May 22, 2015.
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X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review, because it may
raise novel legal or policy issues [3(f)(4)] arising out of legal
mandates, although it is not economically significant. Any changes made
in response to OMB recommendations have been documented in the docket.
The EPA prepared an economic analysis of the potential costs and
benefits associated with this action. This analysis, ``Assessment of
the Potential Costs, Benefits, and Other Impacts for the Final Rule--
Categorical Non-Waste Determination for Selected Non-Hazardous
Secondary Materials (NHSMs): Construction and Demolition Wood,
Recycling Process Residuals, and Creosote-Treated Railroad Ties'', is
available in the docket. Interested persons are encouraged to read and
comment on this document.
B. Paperwork Reduction Act
The information collection activities in this rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) document that
the EPA prepared has been assigned EPA ICR number 2493.03. You can find
a copy of the ICR in the docket for this rule, and it is briefly
summarized here. The information collection requirements are not
enforceable until OMB approves them.
This action will impose a direct RCRA related burden associated
with reading and understanding the rule. This burden is estimated at
approximately $102 per entity and would impact facilities that generate
the NHSMs, and those that combust these materials as a fuel product.
Combustors of C&D wood must also request a written certification from
C&D processing facilities that the C&D wood that they intend to burn as
a non-waste fuel has been processed by trained operators in accordance
with best management practices, as defined in the rule. The preparation
of the certification statement and the need to maintain certification
status is the responsibility of the processor. The combustors also
would be required to maintain the certification statement on file;
however, there is already an existing requirement for combustors to
maintain records that show how they are in compliance with the 40 CFR
241.3 and 241.4 requirements (40 CFR 60.2740(u) (Emissions Guidelines)
and 40 CFR 60.2175(w) (New Source Performance Standards) for CISWI
units and 40 CFR 63.11225(c)(2)(ii) for area source boilers and 40 CFR
63.7555(d)(2) for major source boilers). Because there are already
existing recordkeeping requirements for combustors to maintain records
that show how they are in compliance with the 40 CFR 241.3 and 241.4
requirements, the requirement to maintain the certification statement
provided by the processor would simply be in place of records that
would need to be maintained for processed C&D wood, absent a
categorical non-waste fuel determination. OMB has previously approved
the information collection requirements contained in the existing NHSM
regulation at 40 CFR part 241 under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control
number 2050-0205.
Respondents/affected entities: Processors and combustors of C&D
wood.
Respondent's obligation to respond: Mandatory per 40 CFR
241.4(a)(5)(iii) and (iv).
Estimated number of respondents: 605.
Frequency of response: Annual.
Total estimated burden: 2,252 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $230,111 (per year), includes $0 annualized
capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB
approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment to 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.
C. Regulatory Flexibility Act
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. The addition of the three NHSMs to the
list of categorical non-waste fuels will indirectly reduce materials
management costs. In addition, this action will reduce regulatory
uncertainty associated with these materials and help increase
management efficiency. We have therefore concluded that this final rule
will relieve regulatory burden for all affected small entities. We
continue to be interested in the potential impacts of the final rule on
small entities and welcome comments on issues related to such impacts
outside the scope of this rule.
D. Unfunded Mandates Reform Act
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. Potential aspects
associated with the categorical non-waste fuel determinations under
this final rule may invoke minor indirect implications to the extent
that entities generating or consolidating these NHSMs on tribal lands
could be affected. However, any impacts are expected to be negligible.
The proposed rule solicited comment from tribal officials on
actions contained in the rule. As no comments were received, the above
determination is adopted for this final rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the
[[Page 6741]]
EPA does not believe the environmental health or safety risks addressed
by this action present a disproportionate risk to children. Based on
the discussion below, the Agency finds that the populations of children
near potentially affected boilers are either not significantly greater
than national averages, or in the case of landfills, may potentially
result in reduced discharges near such populations.\152\
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\152\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
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The final rule may indirectly stimulate the increased fuel use of
one or more of the three NHSMs by providing enhanced regulatory clarity
and certainty. This increased fuel use may result in the diversion of a
certain quantity of these NHSMs away from current baseline management
practices. Any corresponding disproportionate impacts among children
would depend upon: (1) Any potential change in emissions from
combustion units subject to the CAA section 112 standards, relative to
baseline management patterns, and (2) whether children make up a
disproportionate share of the population near the affected combustion
units. Therefore, to assess the potential for the final rule to result
in an indirect disproportionate effect on children, we conducted a
demographic analysis for this population group surrounding CAA section
112 major source boilers, municipal solid waste landfills, and C&D
landfills, and cement kilns.\153\ We assessed the share of the
population under the age of 18 living within a three-mile
(approximately five kilometers) radius of these facilities.
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\153\ The absence of site-specific coordinates for area sources
prevents assessments of the demographics of populations located near
these sources.
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For major source boilers, our findings indicate that the percentage
of the population in these areas under age 18 years of age is generally
the same as the national average.\154\ In addition, while the fuel
source and corresponding emission mix for some of these boilers may
change as an indirect response to this rule, emissions from these
sources remain subject to the CAA section 112 standards.
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\154\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
---------------------------------------------------------------------------
For municipal solid waste and C&D landfills, we do not have
demographic results specific to children. However, using the population
below the poverty level as a rough surrogate for children, we found
that within three miles of facilities that may experience diversions of
one or more of these NHSMs, low-income populations, as a percent of the
total population, are disproportionately high relative to the national
average. Thus, to the extent that these NHSMs are diverted away from
municipal solid waste or C&D landfills, any landfill-related emissions,
discharges, or other negative activity potentially impacting low-income
(children) populations living near these units are likely to be
reduced. Finally, transportation emissions associated with the
diversion of some of this material away from landfills to boilers are
likely to be generally unchanged, while these emissions are likely to
be reduced for on-site generators of paper recycling residuals that
would reduce off-site shipments.
The public was invited to submit comments or identify peer-reviewed
studies and data that assess effects of early life exposure to the
specific NHSMs addressed in the proposal. The Agency did not receive
comments or studies in these subject areas, and is therefore adopting
the determinations described above for this final rule.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not ``significant energy action'' because it is not
likely to have a significance adverse effect on the supply,
distribution or use of energy. The selected NHSMs affected by this
final action are not generated in quantities sufficient to
significantly (adversely or positively) impact the supply,
distribution, or use of energy at the national level.
I. National Technology Transfer and Advancement Act
This final rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. This is because the overall level of
emissions, or the emissions mix from boilers, will not change
significantly as the three categorically listed non-waste fuels are
comparable to the types of fuels that the combustors would otherwise
burn.
Potential indirect impacts on minority and/or low-income citizens
have been assessed by looking at the following: (1) Any change in
emissions or the emissions mix from combustion units subject to the CAA
section 112 standards that may accept increased quantities of one or
more of the three NHSMs addressed in this final rule, (2) any change in
emissions resulting from the diversion of these NHSMs from their
current baseline management methods, and (3) any other impacts related
to material diversion (e.g., noise, aesthetics, water pollution, etc.).
These factors were considered in conjunction with our assessment of the
demographic characteristics surrounding the affected areas.
Our environmental justice assessment \155\ for the March 21, 2011
final rule, based on the most recent census data, reviewed the
distributions of minority and low-income groups that might be impacted
by the sources indirectly affected by this rule. We focused on census
blocks within three miles (approximately five kilometers) of the
indirectly affected sources. We then determined the demographic
composition (e.g., race, income, etc.) of these census blocks and
compared them to the corresponding national compositions. Our findings
show that populations living within three miles of major source boilers
represent areas with minority and low-income populations that are
higher than the national averages. In these areas, the minority share
\156\ of the population was found to be 33 percent, compared to the
national average of 25 percent. For these same areas, the percent of
the population below the poverty line (16 percent) is also higher than
the national average (13 percent).
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\155\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
The findings of that study, based on the most recent census data,
are not expected to change as a result of this action.
\156\ This figure is for overall population minus white
population and does not include the Census group defined as ``White
Hispanic.''
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We also considered the potential for non-combustion environmental
justice concerns related to the potential incremental increase in NHSMs
diversions from current baseline management practices. These include
the following:
[[Page 6742]]
Reduced upstream emissions resulting from the reduced
production of virgin fuel: Any reduced upstream emissions that may
indirectly occur in response to reduced virgin fuel mining or
extraction may result in a human health and/or environmental benefit to
minority and low-income populations living near these projects.
Alternative materials transport patterns: Transportation
emissions associated with NHSMs diverted from landfills to boilers are
likely to be similar, except for on-site paper recycling residuals,
where the potential for less off-site transport to landfills may result
in reduced truck traffic and emissions where such transport patterns
may pass through minority or 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 these facilities. This may
include non-adverse impacts, such as marginally reduced emissions,
odors, groundwater and surface water impacts, noise pollution, and
reduced maintenance cost to local infrastructure. Because municipal
solid waste and C&D landfills were found to be located in areas where
minority and low-income populations are disproportionately high
relative to the national average, any reduction in activity and
emissions around these facilities is likely to benefit the citizens
living near these facilities.
Finally, this rule, in conjunction with the corresponding CAA
rules, may help accelerate the abatement of any existing stockpiles of
the targeted NHSMs. To the extent that these stockpiles may represent
negative human health or environmental implications, minority and/or
low-income populations that live near such stockpiles may experience
marginal health or environmental improvements. Aesthetics may also be
improved in such areas.
As previously discussed, this RCRA action alone does not directly
require any change in the management of these materials. Thus, any
potential materials management changes stimulated by this action, and
corresponding impacts to minority and low-income communities, are
considered to be indirect impacts, and would only occur in conjunction
with the corresponding CAA rules.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 241
Environmental protection, Air pollution control, Waste treatment
and disposal.
Dated: January 21, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the preamble, Title 40, chapter I, of the
Code of Federal Regulations is amended as follows:
PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION
UNITS
0
1. The authority citation for part 241 continues to read as follows:
Authority: 42 U.S.C. 6903, 6912, 7429.
Subpart A--General
0
2. Section 241.2 is amended by adding in alphabetical order the
definitions ``Construction and demolition (C&D) wood'', ``Creosote
treated railroad ties'', ``Paper recycling residuals'' and ``Power
producer'' to read as follows:
Sec. 241.2 Definitions.
* * * * *
Construction and demolition (C&D) wood means wood that is generated
from the processing of debris from construction and demolition
activities for the purposes of recovering wood. C&D wood from
construction activities results from wood generated during any
installation activity or from purchasing more wood than a project
ultimately requires. C&D wood from demolition activities results from
dismantling buildings and other structures, removing materials during
renovation, or from natural disasters.
* * * * *
Creosote treated railroad ties means railway support ties treated
with a wood preservative containing creosols and phenols and made from
coal tar oil.
* * * * *
Paper recycling residuals means the secondary material generated
from the recycling of paper, paperboard and corrugated containers
composed primarily of wet strength and short wood fibers that cannot be
used to make new paper and paperboard products. Paper recycling
residuals that contain more than small amounts of non-fiber materials
including polystyrene foam, polyethylene film, other plastics, waxes
and adhesives, dyes and inks, clays, starches and other coating and
filler material are not paper recycling residuals for purposes of this
definition.
* * * * *
Power producer means a boiler unit producing electricity for sale
to the grid. The term does not include units meeting the definition of
electricity generating unit under 40 CFR 63.10042.
* * * * *
Subpart B--Identification of Non-Hazardous Secondary Materials That
Are Solid Wastes When Used as Fuels or Ingredients in Combustion
Units
0
3. Section 241.3 is amended by revising paragraphs (c)(1) introductory
text and (d)(1)(iii) to read as follows:
Sec. 241.3 Standards and procedures for identification of non-
hazardous secondary materials that are solid wastes when used as fuels
or ingredients in combustion units.
* * * * *
(c) * * *
(1) Submittal of an application to the Regional Administrator for
the EPA Region where the facility or facilities are located or the
Assistant Administrator for the Office of Land and Emergency Management
for a determination that the non-hazardous secondary material, even
though it has been transferred to a third party, has not been discarded
and is indistinguishable in all relevant aspects from a fuel product.
The determination will be based on whether the non-hazardous secondary
material that has not been discarded is a legitimate fuel as specified
in paragraph (d)(1) of this section and on the following criteria:
* * * * *
(d) * * *
(1) * * *
(iii) The non-hazardous secondary material must contain
contaminants or groups of contaminants at levels comparable in
concentration to or lower than those in traditional fuel(s) that the
combustion unit is designed to burn. In determining which traditional
fuel(s) a unit is designed to burn, persons may choose a traditional
fuel that can be or is burned in the particular type of combustion
unit, whether or not the unit is permitted to burn that traditional
fuel. In comparing contaminants between traditional fuel(s) and a non-
hazardous secondary material, persons can use data for traditional fuel
contaminant levels compiled from national surveys, as well as
contaminant level data from the specific traditional fuel being
replaced. To account for natural variability in contaminant levels,
persons can use the full range of traditional fuel contaminant levels,
provided such comparisons also consider variability in non-hazardous
secondary material contaminant levels. Such comparisons are to be based
on a
[[Page 6743]]
direct comparison of the contaminant levels in both the non-hazardous
secondary material and traditional fuel(s) prior to combustion.
* * * * *
0
4. Section 241.4 is amended by adding paragraphs (a)(5) through (7) to
read as follows:
Sec. 241.4 Non-waste Determinations for Specific Non-Hazardous
Secondary Materials When Used as a Fuel.
(a) * * *
(5) Construction and demolition (C&D) wood processed from C&D
debris according to best management practices. Combustors of C&D wood
must obtain a written certification from C&D processing facilities that
the C&D wood has been processed by trained operators in accordance with
best management practices. Best management practices for purposes of
this categorical listing must include sorting by trained operators that
excludes or removes the following materials from the final product
fuel: non-wood materials (e.g., polyvinyl chloride and other plastics,
drywall, concrete, aggregates, dirt, and asbestos), and wood treated
with creosote, pentachlorophenol, chromated copper arsenate, or other
copper, chromium, or arsenical preservatives. In addition:
(i) Positive sorting. C&D processing facilities that use positive
sorting--where operators pick out desirable wood from co-mingled
debris--or that receive and process positive sorted C&D wood must
either:
(A) Exclude all painted wood (to the extent that only de minimis
quantities inherent to processing limitations may remain) from the
final product fuel,
(B) Use X-ray Fluorescence to ensure that painted wood included in
the final product fuel does not contain lead-based paint, or
(C) Require documentation that a building has been tested for and
does not include lead-based paint before accepting demolition debris
from that building.
(ii) Negative sorting. C&D processing facilities that use negative
sorting--where operators remove contaminated or otherwise undesirable
materials from co-mingled debris--must remove fines (i.e., small-sized
particles that may contain relatively high concentrations of lead and
other contaminants) and either:
(A) Remove all painted wood (to the extent that only de minimis
quantities inherent to processing limitations may remain),
(B) Use X-ray Fluorescence to detect and remove lead-painted wood,
or
(C) Require documentation that a building has been tested for and
does not include lead-based paint before accepting demolition debris
from that building.
(iii) Training. Processors must train operators to exclude or
remove the materials as listed in paragraph (a)(5) of this section from
the final product fuel. Records of training must include date of
training held and must be maintained on-site for a period of three
years.
(iv) Written certification. A written certification must be
obtained by the combustor for every new or modified contract, purchase
agreement, or other legally binding document, from each final processor
of C&D wood and must include the statement: the processed C&D wood has
been sorted by trained operators in accordance with best management
practices.
(6) Paper recycling residuals generated from the recycling of
recovered paper, paperboard and corrugated containers and combusted by
paper recycling mills whose boilers are designed to burn solid fuel.
(7) Creosote-treated railroad ties that are processed and then
combusted in the following types of units. Processing must include, at
a minimum, metal removal and shredding or grinding.
(i) Units designed to burn both biomass and fuel oil as part of
normal operations and not solely as part of start-up or shut-down
operations, and
(ii) Units at major source pulp and paper mills or power producers
subject to 40 CFR part 63, subpart DDDDD, that combust CTRTs and had
been designed to burn biomass and fuel oil, but are modified (e.g. oil
delivery mechanisms are removed) in order to use natural gas instead of
fuel oil, as part of normal operations and not solely as part of start-
up or shut-down operations. The CTRTs may continue to be combusted as
product fuel under this subparagraph only if the following conditions
are met, which are intended to ensure that the CTRTs are not being
discarded:
(A) CTRTs must be burned in existing (i.e. commenced construction
prior to April 14, 2014) stoker, bubbling bed, fluidized bed, or hybrid
suspension grate boilers; and
(B) CTRTs can comprise no more than 40 percent of the fuel that is
used on an annual heat input basis.
* * * * *
[FR Doc. 2016-01866 Filed 2-5-16; 8:45 am]
BILLING CODE 6560-50-P