[Federal Register: October 6, 2006 (Volume 71, Number 194)]
[Notices]
[Page 59129-59131]
[DOCID:fr06oc06-89]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. NRTL2-92]

Canadian Standards Association; Application for Expansion of
Recognition

AGENCY:  Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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SUMMARY: This notice announces the application of Canadian Standards
Association (CSA) for expansion of its recognition, and presents the
Agency's preliminary finding in favor of granting this request. This
preliminary finding does not constitute an interim or temporary
approval of this application.

DATES: You must submit information or comments, or any request for
extension of the time to comment, by the following dates:
     Hard copy: Postmarked or sent by October 23, 2006.

     Electronic transmission or facsimile: Sent by October 23,
2006.

ADDRESSES: You may submit information or comments to this notice--
identified by docket number NRTL2-92--by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.
     OSHA Web site:  http://ecomments.osha.gov. Follow the

instructions for submitting comments on OSHA's Web page.
     Fax: If your written comments are 10 pages or fewer, you
may fax them to the OSHA Docket Office at<PHONE_NUMBER>.
     Regular mail, express delivery, hand delivery and courier
service: Submit three copies to the OSHA Docket Office, Docket No.
NRTL2-92, U.S. Department of Labor, 200 Constitution Avenue, NW., Room
N-2625, Washington, DC 20210; telephone<PHONE_NUMBER>. (OSHA's TTY
number is<PHONE_NUMBER>). OSHA Docket Office hours of operation are
8:15 a.m. to 4:45 p.m., EST.
    Instructions: All comments received will be posted without change
to http://dockets.osha.gov, including any personal information

provided. OSHA cautions you about submitting personal information such
as social security numbers and birth dates.
    Docket: For access to the docket to read background documents or
comments received, go to http://dockets.osha.gov. Contact the OSHA

Docket Office for information about materials not available through the
OSHA Web page and for assistance in using the Web page to locate docket
submissions.
    Extension of Comment Period: Submit requests for extensions
concerning this notice to the Office of Technical Programs and
Coordination Activities, NRTL Program, Occupational Safety and Health
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Room N-3655, Washington, DC 20210. Or, fax to<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Director, Office of Technical Programs
and Coordination Activities, NRTL Program, Occupational Safety and
Health Administration, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room N-3655, Washington, DC 20210, or phone (202) 693-
2110.

SUPPLEMENTARY INFORMATION:

Notice of Application

    The Occupational Safety and Health Administration (OSHA) hereby
gives notice that Canadian Standards Association (CSA) has applied for
expansion of its current recognition as a Nationally Recognized Testing
Laboratory (NRTL). CSA's expansion request covers the use of additional
test standards. OSHA's current scope of recognition for CSA may be
found in the following informational Web page: http://www.osha.gov/dts/otpca/nrtl/csa.html
.

    OSHA recognition of an NRTL signifies that the organization has met
the legal requirements in Section 1910.7 of Title 29, Code of Federal
Regulations (29 CFR 1910.7). Recognition is an acknowledgment that the
organization can perform independent safety testing and certification
of the specific products covered within its scope of recognition and is
not a delegation or grant of government authority. As a result of
recognition, employers may use products ``properly certified'' \1\ by
the NRTL to meet OSHA standards that require testing and certification.
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    \1\ Properly certified means, in part, that the product is
labeled or marked with the NRTL's ``registered'' certification mark
(i.e., the mark the NRTL uses for its NRTL work) and that the
product certification falls within the scope of recognition of the
NRTL.
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    The Agency processes applications by an NRTL for initial
recognition or for expansion or renewal of this recognition following
requirements in Appendix A to 29 CFR 1910.7. This appendix requires
that the Agency publish two notices in the Federal Register in
processing an application. In the first notice, OSHA announces the
application and provides its preliminary finding and, in the second
notice, the Agency provides its final decision on the application.
These notices set forth the NRTL's scope of recognition or
modifications of that scope. We maintain an informational Web page for
each NRTL, which details its scope of recognition. These pages can be
accessed from our Web site at http://www.osha.gov/dts/otpca/nrtl/index.html
.

    The most recent notice published by OSHA specifically related to
CSA's recognition granted an expansion of recognition, which became
effective on August 26, 2003 (68 FR 51303).
    The current addresses of the CSA facilities already recognized by
OSHA are:

Canadian Standards Association, 178 Rexdale Boulevard (Toronto),
Etobicoke, ON M9W 1R3, Canada;
CSA International, Pointe-Claire (Montreal), 865 Ellingham Street,
Pointe-Claire, PQ H9R 5E8, Canada;
CSA International, Richmond (Vancouver), 13799 Commerce Parkway,
Richmond, BC V6V 2N9, Canada;
CSA International, Edmonton, 1707-94th Street, Edmonton, AB T6N 1E6,
Canada;
CSA International, Irvine, 2805 Barranca Parkway, Irvine, CA 92606; and
CSA International, Cleveland, 8501 East Pleasant Valley Road,
Cleveland, OH 44131

General Background on the Application

    CSA submitted an application, dated July 5, 2005, (see Exhibit 34-
1) to, among other things, expand its recognition to include 12
additional test standards. The NRTL Program staff has determined that
nine of these standards are individually an ``appropriate test
standard'' within the meaning of 29 CFR 1910.7(c). However, one of
these standards is already included in CSA's scope. Therefore, OSHA
would approve eight test standards for the expansion.
    CSA seeks recognition for testing and certification of products for
demonstration of conformance to the following test standards:

UL 568 Nonmetallic Cable Tray Systems
FM 3810 Electrical and Electronic Test, Measuring, and Process Control
Equipment
UL 61010A-2-010 Electrical Equipment for Laboratory Use; Part 2:
Particular Requirements for Laboratory Equipment for the Heating of
Materials
UL 61010A-2-041 Electrical Equipment for Laboratory Use; Part 2:
Particular Requirements for Autoclaves Using Steam for the Treatment of
Medical Materials and for Laboratory Processes
UL 61010A-2-042 Electrical Equipment for Laboratory Use; Part 2:
Particular Requirements for Autoclaves and Sterilizers Using Toxic Gas
for the Treatment of Medical Materials, and for Laboratory Processes
UL 61010A-2-051 Electrical Equipment for Laboratory Use; Part 2:
Particular Requirements for Laboratory Equipment for Mixing and
Stirring
UL 61010A-2-061 Electrical Equipment for Laboratory Use; Part 2:
Particular Requirements for Laboratory Atomic Spectrometers with
Thermal Atomization and Ionization
UL 61010B-2-031 Electrical Equipment for Measurement, Control, and
Laboratory Use; Part 2: Particular Requirements for Hand-Held Probe
Assemblies for Electrical Measurement and Test

    The designations and titles of the above test standards were
current at the time of the preparation of this notice.
    OSHA's recognition of CSA, or any NRTL, for a particular test
standard is limited to equipment or materials (i.e., products) for
which OSHA standards require third-party testing and certification
before use in the workplace. Consequently, if a test standard also
covers any product(s) for which OSHA does not require such testing and
certification, an NRTL's scope of recognition does not include that
product(s).
    Many test standards listed above also are approved as American
National Standards by the American National Standards Institute (ANSI).
However, for convenience, we use the designation of the standards
developing organization for the standard as opposed to the ANSI
designation. Under our procedures, any NRTL recognized for an ANSI-
approved test standard may use either the latest proprietary version of
the test standard or the latest ANSI version of that standard. You may
contact ANSI to find out whether or not a test standard is currently
ANSI-approved.

Preliminary Finding on the Application

    CSA has submitted an acceptable request for expansion of its
recognition as an NRTL. In connection with this request, OSHA did not
perform an on-site review of CSA's NRTL testing facilities. However,
NRTL Program assessment staff reviewed information pertinent to the
request and recommended that CSA's recognition be expanded to include
the additional test standards listed above (see Exhibit 34-2). Our
review of the application file, the assessor's recommendation, and
other pertinent documents indicate that CSA can meet the requirements,
as prescribed by 29 CFR 1910.7, for the expansion for the additional
test standards listed above. This preliminary finding does not
constitute an interim or temporary approval of the application.
    OSHA welcomes public comments, in sufficient detail, as to whether
CSA has met the requirements of 29 CFR 1910.7 for expansion of its
recognition as an NRTL. Your comments should consist of pertinent
written documents and exhibits. Should you need more time to comment,
you must request it in writing, including reasons for the request. OSHA
must receive your written request for extension at the address provided
above no later than the last date for comments. OSHA will limit any
extension to 30 days, unless the requester justifies a longer period.
You may obtain or review copies of CSA's requests, the assessor's
recommendation, and all submitted comments, as received, by contacting
the Docket Office, Room N-2625, Occupational Safety and Health
Administration, U.S. Department of Labor, at the above address. Docket
No. NRTL2-92 contains all materials in the record concerning CSA's
application.
    The NRTL Program staff will review all timely comments and, after
resolution of issues raised by these comments, will recommend whether
to grant CSA's expansion request. The Assistant Secretary will make the
final decision on granting the expansion and, in making this decision,
may undertake other proceedings that are prescribed in Appendix A to 29
CFR 1910.7. OSHA will publish a public notice of this final decision in
the Federal Register.

    Signed at Washington, DC, this 25th day of September, 2006.
Edwin G. Foulke, Jr.,
Assistant Secretary.
[FR Doc. E6-16587 Filed 10-5-06; 8:45 am]

BILLING CODE 4510-26-P


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

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).
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    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.
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    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)).

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

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

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

VI. Technical Corrections

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

    NHSMs that are not solid wastes when combusted are identified under
40 CFR 241.3(b). Paragraphs (i) and (ii) of 40 CFR 241.3(b)(2) were
reserved in response to the 40 CFR 241.4(a)(1) categorical non-waste
standards in the February 7, 2013 rulemaking. Those standards had
eliminated the need for previous standards under 40 CFR 241.3(b)(2)(i)
and (ii) related to scrap tires managed under established tire
collection programs and resinated wood (see section IV.A. History of
NHSM Rulemakings). However, reserving only 40 CFR 241.3(b)(2)(i) and
(ii), and not the introductory sentence, led to some confusion with the
categorical non-waste standards. For clarity, and to ensure consistent
numbering with the following sections, we proposed to amend 40 CFR
241.3(b)(2) by reserving paragraph (b)(2) in its entirety.

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

    The description of the petition process identified in 40 CFR
241.3(c)(1) contains a typographical error. Specifically, the last
sentence of the 40 CFR 241.3(c)(1) regulatory text from the February
2013 final rule is stated as

follows: ``The determination will be based on whether the non-hazardous
secondary material that has been discarded is a legitimate fuel as
specified in paragraph (d)(1) of this section and on the following
criteria:''
    However, the intent of this sentence is to say that the
determination is based on ``whether it has or has not been discarded''
in addition to other factors. Therefore, we proposed to amend the
regulatory text to add a ``not'' before ``been discarded'' and remove
``that'' after ``non-hazardous secondary material.'' The proposed
regulatory text, therefore, was ``. . . The determination will be based
on whether the non-hazardous secondary material has not been discarded
is a legitimate fuel as specified in paragraph (d)(1) of this section
and on the following criteria:''
    A comment was received on the proposed amendments stating the word
``that'' appears to have been omitted in the last sentence, and should
be add to the sentence as shown in italics below:
    ``The determination will be based on whether the non-hazardous
secondary material that has not been discarded is a legitimate fuel as
specified in paragraph (d)(1) of this section and on the following
criteria . . .''
    The Agency agrees with the commenter. The word ``that'' clarifies
the sentence's meaning and should not have been omitted. Thus, the
sentence in the final rule reads: ``The determination will be based on
whether the non-hazardous secondary material that has not been
discarded is a legitimate fuel as specified in paragraph (d)(1) of this
section and on the following criteria . . .''

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

    The Agency also proposed to make a technical correction to 40 CFR
241.3(d)(1)(iii) to clarify that the provision applies to cement kilns,
as well as boilers. Specifically, that section of the rule identifies
the legitimacy criteria for NHSMs relating to contaminant comparisons
between the traditional fuel(s) a unit is designed to burn and the
NHSM. It states that a person may choose a traditional fuel that can be
burned in any type of boiler (emphasis added), whereas the rest of the
sentence refers to the combustion unit. Like a boiler, a cement kiln
that combusts any non-hazardous solid waste is subject to regulation as
a CISWI unit pursuant to section 129(g)(1) of the CAA. In order for a
cement kiln not to be classified as a CISWI unit, it must use a fuel
that is/has been determined to be a non-waste fuel under 40 CFR part
241 when combusted. Consistent with the section as a whole, the word
boiler is replaced with combustion unit to clarify that a person may
choose a traditional fuel that can be or is burned in a combustion
unit, which can be a cement kiln, as well as a boiler. Thus, the
proposed regulatory text was ``. . . In determining which traditional
fuel(s) a unit is designed to burn, persons may choose a traditional
fuel that can be or is burned in the particular type of combustion
unit, whether or not the combustion unit is permitted to burn that
traditional fuel . . . .'' The EPA received no comments on this
technical change and is issuing the rule in final, as proposed.

VII. Effect of This Rule on Other Programs

    Beyond expanding the list of NHSMs that categorically qualify as
non-waste fuels, this rule does not change the effect of the NHSM
regulations on other programs as described in the March 21, 2011 NHSM
final rule, as amended on February 7, 2013 (78 FR 9138). Refer to
section VIII of the preamble to the March 21, 2011 NHSM final rule
\148\ for the discussion on the effect of the NHSM rule on other
programs.
---------------------------------------------------------------------------

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

VIII. State Authority

A. Relationship to State Programs

    This final rule does not change the relationship to state programs
as described in the March 21, 2011 NHSM final rule. Refer to section IX
of the preamble to the March 21, 2011 NHSM final rule \149\ for the
discussion on state authority including, ``Applicability of State Solid
Waste Definitions and Beneficial Use Determinations'' and
``Clarifications on the Relationship to State Programs.'' The Agency,
however, would like to reiterate that this rule (like the March 21,
2011 and the February 7, 2013 final rules) is not intended to interfere
with a state's program authority over the general management of solid
waste.
---------------------------------------------------------------------------

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

B. State Adoption of the Rulemaking

    No federal approval procedures for state adoption of this final
rule are included in this rulemaking action under RCRA subtitle D.
Although the EPA does promulgate criteria for solid waste landfills and
approves state municipal solid waste landfill permitting programs, RCRA
does not provide the EPA with authority to approve state programs
beyond those landfill permitting programs. While states are not
required to adopt regulations promulgated under RCRA subtitle D, some
states incorporate federal regulations by reference or have specific
state statutory requirements that their state program can be no more
stringent than the federal regulations. In those cases, the EPA
anticipates that, if required by state law, the changes being proposed
in this document, if finalized, will be incorporated (or possibly
adopted by authorized state air programs) consistent with the state's
laws and administrative procedures.

IX. Cost and Benefits

    The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. This rulemaking
establishes a categorical non-waste listing for selected NHSMs under
RCRA. This categorical non-waste determination allows these materials
to be combusted as a product fuel in units, subject to the section 112
CAA emission standards, without being subject to a detailed case-by-
case analysis of the material(s) by individual combustion facilities,
provided they meet the conditions of the categorical listing. The rule
establishes no direct standards or requirements relative to how these
materials are managed or combusted. As a result, this action alone does
not directly invoke any costs \150\ or benefits. Rather, this RCRA
proposal is being developed to simplify the rules for identifying which
NHSMs are not solid wastes and to provide additional clarity and
direction for owners or operators of combustion facilities. In this
regard, this proposal provides a procedural benefit to the regulated
community, as well as the states through the establishment of
regulatory clarity and enhanced materials management certainty.
---------------------------------------------------------------------------

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

    Because this RCRA action is definitional only, any costs or
benefits indirectly associated with this action would not occur without
the corresponding implementation of the relevant CAA rules. However, in
an effort to ensure rulemaking transparency, the EPA prepared an
assessment in support of this action that examines the scope and
direction of these indirect impacts, for both costs and benefits.\151\
A document discussing the effects of the proposed rule was available in
the docket for review. No comments were received on the assessment and
the document reflecting

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

    \151\ U.S. EPA, Office of Resource Conservation and Recovery,
``Assessment of the Potential Costs, Benefits, and Other Impacts for
the Final Rule: Categorical Non-Waste Determination for Selected Non
Hazardous Secondary Materials (NHSMs): Construction and Demolition
Wood, Recycling Process Residuals, and Creosote-Treated Railroad
Ties'' May 22, 2015.
---------------------------------------------------------------------------

X. Statutory and Executive Order Reviews

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

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review, because it may
raise novel legal or policy issues [3(f)(4)] arising out of legal
mandates, although it is not economically significant. Any changes made
in response to OMB recommendations have been documented in the docket.
The EPA prepared an economic analysis of the potential costs and
benefits associated with this action. This analysis, ``Assessment of
the Potential Costs, Benefits, and Other Impacts for the Final Rule--
Categorical Non-Waste Determination for Selected Non-Hazardous
Secondary Materials (NHSMs): Construction and Demolition Wood,
Recycling Process Residuals, and Creosote-Treated Railroad Ties'', is
available in the docket. Interested persons are encouraged to read and
comment on this document.

B. Paperwork Reduction Act

    The information collection activities in this rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) document that
the EPA prepared has been assigned EPA ICR number 2493.03. You can find
a copy of the ICR in the docket for this rule, and it is briefly
summarized here. The information collection requirements are not
enforceable until OMB approves them.
    This action will impose a direct RCRA related burden associated
with reading and understanding the rule. This burden is estimated at
approximately $102 per entity and would impact facilities that generate
the NHSMs, and those that combust these materials as a fuel product.
Combustors of C&D wood must also request a written certification from
C&D processing facilities that the C&D wood that they intend to burn as
a non-waste fuel has been processed by trained operators in accordance
with best management practices, as defined in the rule. The preparation
of the certification statement and the need to maintain certification
status is the responsibility of the processor. The combustors also
would be required to maintain the certification statement on file;
however, there is already an existing requirement for combustors to
maintain records that show how they are in compliance with the 40 CFR
241.3 and 241.4 requirements (40 CFR 60.2740(u) (Emissions Guidelines)
and 40 CFR 60.2175(w) (New Source Performance Standards) for CISWI
units and 40 CFR 63.11225(c)(2)(ii) for area source boilers and 40 CFR
63.7555(d)(2) for major source boilers). Because there are already
existing recordkeeping requirements for combustors to maintain records
that show how they are in compliance with the 40 CFR 241.3 and 241.4
requirements, the requirement to maintain the certification statement
provided by the processor would simply be in place of records that
would need to be maintained for processed C&D wood, absent a
categorical non-waste fuel determination. OMB has previously approved
the information collection requirements contained in the existing NHSM
regulation at 40 CFR part 241 under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control
number 2050-0205.
    Respondents/affected entities: Processors and combustors of C&D
wood.
    Respondent's obligation to respond: Mandatory per 40 CFR
241.4(a)(5)(iii) and (iv).
    Estimated number of respondents: 605.
    Frequency of response: Annual.
    Total estimated burden: 2,252 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: $230,111 (per year), includes $0 annualized
capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB
approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment to 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. The addition of the three NHSMs to the
list of categorical non-waste fuels will indirectly reduce materials
management costs. In addition, this action will reduce regulatory
uncertainty associated with these materials and help increase
management efficiency. We have therefore concluded that this final rule
will relieve regulatory burden for all affected small entities. We
continue to be interested in the potential impacts of the final rule on
small entities and welcome comments on issues related to such impacts
outside the scope of this rule.

D. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.

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

    This action has tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. Potential aspects
associated with the categorical non-waste fuel determinations under
this final rule may invoke minor indirect implications to the extent
that entities generating or consolidating these NHSMs on tribal lands
could be affected. However, any impacts are expected to be negligible.
    The proposed rule solicited comment from tribal officials on
actions contained in the rule. As no comments were received, the above
determination is adopted for this final rule.

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

    This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the

EPA does not believe the environmental health or safety risks addressed
by this action present a disproportionate risk to children. Based on
the discussion below, the Agency finds that the populations of children
near potentially affected boilers are either not significantly greater
than national averages, or in the case of landfills, may potentially
result in reduced discharges near such populations.\152\
---------------------------------------------------------------------------

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

    The final rule may indirectly stimulate the increased fuel use of
one or more of the three NHSMs by providing enhanced regulatory clarity
and certainty. This increased fuel use may result in the diversion of a
certain quantity of these NHSMs away from current baseline management
practices. Any corresponding disproportionate impacts among children
would depend upon: (1) Any potential change in emissions from
combustion units subject to the CAA section 112 standards, relative to
baseline management patterns, and (2) whether children make up a
disproportionate share of the population near the affected combustion
units. Therefore, to assess the potential for the final rule to result
in an indirect disproportionate effect on children, we conducted a
demographic analysis for this population group surrounding CAA section
112 major source boilers, municipal solid waste landfills, and C&D
landfills, and cement kilns.\153\ We assessed the share of the
population under the age of 18 living within a three-mile
(approximately five kilometers) radius of these facilities.
---------------------------------------------------------------------------

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

    For major source boilers, our findings indicate that the percentage
of the population in these areas under age 18 years of age is generally
the same as the national average.\154\ In addition, while the fuel
source and corresponding emission mix for some of these boilers may
change as an indirect response to this rule, emissions from these
sources remain subject to the CAA section 112 standards.
---------------------------------------------------------------------------

    \154\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
---------------------------------------------------------------------------

    For municipal solid waste and C&D landfills, we do not have
demographic results specific to children. However, using the population
below the poverty level as a rough surrogate for children, we found
that within three miles of facilities that may experience diversions of
one or more of these NHSMs, low-income populations, as a percent of the
total population, are disproportionately high relative to the national
average. Thus, to the extent that these NHSMs are diverted away from
municipal solid waste or C&D landfills, any landfill-related emissions,
discharges, or other negative activity potentially impacting low-income
(children) populations living near these units are likely to be
reduced. Finally, transportation emissions associated with the
diversion of some of this material away from landfills to boilers are
likely to be generally unchanged, while these emissions are likely to
be reduced for on-site generators of paper recycling residuals that
would reduce off-site shipments.
    The public was invited to submit comments or identify peer-reviewed
studies and data that assess effects of early life exposure to the
specific NHSMs addressed in the proposal. The Agency did not receive
comments or studies in these subject areas, and is therefore adopting
the determinations described above for this final rule.

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

    This action is not ``significant energy action'' because it is not
likely to have a significance adverse effect on the supply,
distribution or use of energy. The selected NHSMs affected by this
final action are not generated in quantities sufficient to
significantly (adversely or positively) impact the supply,
distribution, or use of energy at the national level.

I. National Technology Transfer and Advancement Act

    This final rulemaking does not involve technical standards.

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

    The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. This is because the overall level of
emissions, or the emissions mix from boilers, will not change
significantly as the three categorically listed non-waste fuels are
comparable to the types of fuels that the combustors would otherwise
burn.
    Potential indirect impacts on minority and/or low-income citizens
have been assessed by looking at the following: (1) Any change in
emissions or the emissions mix from combustion units subject to the CAA
section 112 standards that may accept increased quantities of one or
more of the three NHSMs addressed in this final rule, (2) any change in
emissions resulting from the diversion of these NHSMs from their
current baseline management methods, and (3) any other impacts related
to material diversion (e.g., noise, aesthetics, water pollution, etc.).
These factors were considered in conjunction with our assessment of the
demographic characteristics surrounding the affected areas.
    Our environmental justice assessment \155\ for the March 21, 2011
final rule, based on the most recent census data, reviewed the
distributions of minority and low-income groups that might be impacted
by the sources indirectly affected by this rule. We focused on census
blocks within three miles (approximately five kilometers) of the
indirectly affected sources. We then determined the demographic
composition (e.g., race, income, etc.) of these census blocks and
compared them to the corresponding national compositions. Our findings
show that populations living within three miles of major source boilers
represent areas with minority and low-income populations that are
higher than the national averages. In these areas, the minority share
\156\ of the population was found to be 33 percent, compared to the
national average of 25 percent. For these same areas, the percent of
the population below the poverty line (16 percent) is also higher than
the national average (13 percent).
---------------------------------------------------------------------------

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

    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:

     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

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