[Federal Register Volume 81, Number 25 (Monday, February 8, 2016)]
[Rules and Regulations]
[Pages 6687-6743]
[FR Doc No: 2016-01866]

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

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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<PHONE_NUMBER>, and the telephone number for the
RCRA Docket is<PHONE_NUMBER>.

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:<PHONE_NUMBER>;
email<EMAIL_ADDRESS>
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:

 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.

     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

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

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

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

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

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

    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

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

    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

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

final processor of C&D wood. The written certification must include the
statement: The processed C&D wood has been sorted by trained operators
in accordance with best management practices. Combustors have the
ultimate responsibility to determine the C&D wood has been sufficiently
processed.
    The Agency has determined that, when C&D wood is processed
according to the best management practices, it will have significantly
fewer contaminants and improved fuel characteristics. The best
management practices ensure the contaminants in the fuel that is burned
will not be unpredictable, regardless of the type or number of
processing techniques used. Thus, this rule finalizes the best
management practices, with some minor changes from the proposed
regulatory language as discussed previously in section V.A.3. of this
preamble.
b. Legitimacy Criteria
    In determining whether to list processed C&D wood as a categorical
non-waste fuel in 40 CFR 241.4(a), the Agency evaluated the legitimacy
criteria in 40 CFR 241.3(d)(1)--that is, whether it is managed as a
valuable commodity, whether it has a meaningful heating value and is
used as a fuel in a combustion unit to recover energy, and whether
contaminants or groups of contaminants are at levels comparable to or
less than those in the traditional fuel the unit is designed to burn.
To the extent that processed C&D wood does not meet one or more of the
legitimacy criteria, the Agency has considered other relevant factors
in determining to list C&D wood as a categorical non-waste fuel in 40
CFR 241.4(b)(5)(ii) (see discussion on formaldehyde below).
i. Managed as a Valuable Commodity
    Regarding the first legitimacy criterion, the information in the
record in support of the proposal and this final rule demonstrates that
both processors and combustors manage processed C&D wood as a valuable
commodity. Specifically, after processing, including grinding to size,
processors ship the material to energy recovery facilities in covered
chip vans or semi-trailers. The material is then stored on-site at the
combustion facilities in wood fuel storage yards and generally used
within 90 days of delivery.\27\ Because storage does not exceed
reasonable time frames, and management is similar to that of virgin
wood and biomass, the Agency has determined that processed C&D wood
meets this legitimacy criterion.
---------------------------------------------------------------------------

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

ii. Meaningful Heating Value and Used as a Fuel To Recover Energy
    With respect to the second legitimacy criterion, the record shows
that processed C&D wood has a meaningful heating value and is used as a
fuel to recover energy. Specifically, information in the rulemaking
record demonstrates that processed C&D wood has an average as-fired
energy content of 6,640 Btu/lb,\28\ which is greater than 5,000 Btu/lb,
which the Agency considers to have a meaningful heating value (see 76
FR 15541, March 21, 2011). This also compares favorably to information
compiled by the Agency in 2011, in which 95 samples of unadulterated
timber burned by major source boilers\29\ across the country exhibited
an average as-fired energy content of 5,150 Btu/lb.\30\ According to
C&D trade organizations, energy recovery facilities purchase processed
C&D wood and burn the material as fuel to generate electricity. Thus,
the Agency has determined that processed C&D wood meets this legitimacy
criterion.
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    \28\ Appendix A of April 25, 2013, submittal from Susan Bodine
on behalf of BPA and CMRA, available in the Docket at EPA-HQ-RCRA-
2013-0110.
    \29\ Major sources are
    \30\ USEPA, Office of Air Quality Planning and Standards,
Emissions Database for Boilers and Process Heaters Containing Stack
Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and
ICR No. 2286.03 (Version 6). EPA Docket/Document Number EPA-HQ-OAR-
2002-0058-3255. February 2011.
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iii. Contaminants Comparable to or Lower Than Traditional Fuels
    For the third legitimacy criterion, C&D trade organizations
provided the Agency with contaminant analyses of more than 220 samples
of processed C&D wood from nine combustion facilities in California,
Maine, Massachusetts, Minnesota, New York, the state of Washington, and
Wisconsin in support of the proposed categorical listing for processed
C&D wood. The Agency compared the contaminant levels found in the
processed C&D wood to the contaminant levels found in clean wood and
biomass materials since any unit burning processed C&D wood can clearly
burn clean wood and biomass materials as well.\31\
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    \31\ In response to the proposal, EPA did receive data showing a
contaminant comparison to coke and coal. However, the data was
specific to cement kilns and cannot be considered to be
representative for all unit types that combust processed C&D wood
(i.e., some boilers cannot burn coal depending upon feed systems or
boiler design type) and therefore, was not analyzed for this final
rule. A case-by-case comparison, however, can be made using
traditional fuels such as coke and coal if the combustion unit is
designed to burn these materials and if the concentrations of
contaminants are found to be comparable to or less than those
present in C&D wood, then the contaminant criterion would be met.
---------------------------------------------------------------------------

    As first presented in the April 14, 2014 proposed rule (79 FR
21013-14), summary results for the contaminant comparisons are provided
in Table 1 of this preamble, with the contaminants most likely to be
present in unprocessed C&D debris listed first. The Agency finds that
they support the final determination that processed C&D wood meets the
contaminant legitimacy criterion, with the appropriate qualifications
as noted below.
    Specifically, arsenic and chromium are present due to CCA-treated
wood; lead due to lead-based paint chips; mercury due to light bulbs,
ballasts, thermostats and other mercury-containing devices present in
buildings; chlorine due to PVC and other plastics; sulfur due to
plaster or drywall containing gypsum, a sulfate mineral; formaldehyde
due to resinated wood; and pentachlorophenol due to utility poles and
other treated wood products currently accepted by some combustion
facilities. Although sources of fluorine in C&D debris are less clear,
the contaminant's presence may be due to its use in flame retardants
incorporated into carpet, furniture, and other building materials.

                             Table 1--Comparison of Contaminants in Clean Wood/Biomass and Processed C&D Wood \32\ \33\ \34\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Clean Wood/Biomass                                      Processed C&D Wood
              Contaminant               ----------------------------------------------------------------------------------------------------------------
                                                     Range                        # samples               Average           90% UPL          Maximum
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Contaminants Most Likely To Be Present in C&D Debris
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arsenic................................  ND--298......................  n = 221.....................             35.9             91.8             261

Chromium...............................  ND--340......................  n = 212.....................             45.0            116               283
Lead...................................  ND--340......................  n = 224.....................             53.9            136               482
Mercury................................  ND--1.1......................  n = 180.....................              0.1              0.16              0.7
Chlorine...............................  ND--5400.....................  n = 173.....................            809            1,567             3,521
Fluorine...............................  ND--300......................  n = 86......................             45.9            139               313
Sulfur.................................  ND--8700.....................  n = 183.....................          1,300            2,200             7,300
Formaldehyde...........................  1.6--27......................  n = 45......................             47.6            104.2             176.8
Pentachlorophenol......................  ND...........................  n = 21......................             19.7            N/A               126
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Contaminants Less Likely To Be Present in C&D Debris
--------------------------------------------------------------------------------------------------------------------------------------------------------
Antimony...............................  ND--26.......................  n = 50......................              2.6              7.1              16.6
Beryllium..............................  ND--10.......................  n = 50......................              0.1              0.23              0.3
Cadmium................................  ND--17.......................  n = 107.....................              0.3              0.53              1.3
Cobalt.................................  ND--213......................  n = 50......................              1.1              2.1               3.5
Manganese..............................  ND--15800....................  n = 50......................             78.8            115               180
Nickel.................................  ND--540......................  n = 50......................              4.0              8.6              27.4
Selenium...............................  ND--9........................  n = 43......................              0.4              1.0               1.3
Nitrogen...............................  200--39500...................  n = 75......................          3,900            8,000            12,600
--------------------------------------------------------------------------------------------------------------------------------------------------------

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

    With the exception of four contaminants--fluorine, lead,
formaldehyde and pentachlorophenol, every sample of processed C&D
wood's contaminant levels was well within the range of clean wood and
biomass materials. With respect to these four contaminants:
     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.
---------------------------------------------------------------------------

     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

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

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

    Information submitted in response to the proposed rule affirm that
the pentachlorophenol concentrations in processed C&D wood are a direct
result of easily identified wood products, predominantly utility poles,
that processing facilities can choose to exclude or remove prior to
grinding recovered C&D wood.\38\ Because sources of pentachlorophenol
can be readily identified by color and by shape of the treated wood, no
additional conditions other than those specified by the best management
practices are necessary. Thus, to ensure that pentachlorophenol levels
in processed C&D wood are comparable to or lower than clean wood and
biomass, the Agency is requiring that pentachlorophenol treated wood be
excluded or removed from incoming C&D debris. See 40 CFR 241.4(a)(5).
The Agency sees no reason to change the determination expressed in the
proposed rule and adopts it for the final rule.
---------------------------------------------------------------------------

    \38\ See comments from AF&PA (0076.1), DTE Energy Services
(0083.1), and NTH Consultants LTD for CMS Enterprises (0100) in
docket ID: EPA-HQ-RCRA-2013-0110.
---------------------------------------------------------------------------

     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\

Second and more importantly, for many combustors, processed C&D wood
scraps that include resinated wood components actually have added value
and are either selected for (in the case of positive sorting) or
specifically not removed (in the case of negative sorting) because the
wood has been kiln-dried prior to use in construction. Kiln-dried wood
has a greater heating value than virgin wood, almost double in some
cases. Kiln-dried wood also has more consistent moisture content; an
equally important benefit to combustors because a consistent fuel
improves combustion efficiency and leads to reduced emissions of
particulate matter, carbon monoxide, and other organic hazardous air
pollutants.
---------------------------------------------------------------------------

    \39\ On May 29, 2013, EPA proposed two rules to protect the
public from the risks associated with exposure to formaldehyde. 78
FR 34796, 78 FR 34820. The proposals would implement the
Formaldehyde Standards for Composite Wood Products Act (Title VI of
the Toxic Substances Control Act): One will implement the Act's
emission standards and the other will ensure products meet the TSCA
formaldehyde emission standards. See http://www.epa.gov/oppt/chemtest/formaldehyde/.
---------------------------------------------------------------------------

    The Agency has determined that the additional factors discussed in
the proposal are appropriate for determining whether the resinated wood
in certain limited circumstances is actually a product fuel. As a
result, in the final rule the Agency allows resinated wood to remain in
C&D wood prior to processing for this categorical non-waste listing.
This determination is based partially on the fact that future rules
will limit levels of formaldehyde in wood products and will, in effect,
also reduce the levels of formaldehyde in processed C&D wood.
Principally, the Agency's determination is based on information
submitted to the Agency showing that some processors choose to include
resinated wood in processed C&D wood based on combustor specifications
for a higher Btu value fuel, which demonstrates that resinated wood is
a valuable product fuel and is not burned for destruction. The Agency
maintains that the benefits of burning kiln-dried wood not only
provides higher heating value, but also more consistent moisture
content which lends to more efficient combustion and, thus, reduced
emissions of certain contaminants. The final rule, therefore, allows
processors to choose whether they will exclude or remove any resinated
wood and still be permitted to be within the categorical non-waste
listing for C&D debris.
    This does not mean, however, that all resinated wood is considered
a non-waste fuel. The Agency has found that resinated wood is a non-
waste fuel in the furniture industry because of particular
circumstances in that industry, and in this case for C&D wood due to
the extraction of fuel value as a result of the kiln-dried properties
of that wood. In other circumstances, a case-by-case determination
would need to be made.
5. Summary of Comments Requested
    The proposed rule identified several issues pertaining to the
listing of C&D wood as categorical non-wastes and requested comment on
those issues as follows.
    Processing Techniques for lead and pentachlorophenol. The Agency
requested comment on the efficacy of specific processing techniques
related to lead, as well as the feasibility of reducing
pentachlorophenol concentrations in processed C&D wood by excluding or
removing utility poles and other industrial wood products known to be
treated with the chemical. See 79 FR 21015, April 14, 2014. Please
refer to section V.A.4.b.iii of this preamble for the Agency's final
determination and supporting rationale.
    Formaldehyde levels. The Agency sought comment on the decision to
balance elevated formaldehyde levels with the greater heating value and
more consistent moisture content that resinated wood components lend to
processed C&D wood, rather than specifically requiring that resinated
wood be excluded or removed from C&D debris as part of the best
management practices. See 79 FR 21015-16. Please refer to section
V.A.4.b.iii of this preamble for the Agency's final determination and
supporting rationale.
    CCA-treated wood. As proposed at 79 FR 21016, CCA-treated wood was
to be excluded or removed from C&D debris. Although the data submitted
to the Agency indicated that arsenic and chromium concentrations in
processed C&D wood are comparable to levels found in traditional fuels,
there was concern that because a majority of CCA-treated wood is still
in use, an increase in the amount of CCA-treated wood in C&D debris can
be expected in the future. Currently, CCA-treated wood can represent up
to 30 percent of the C&D wood waste stream.\40\ The concern was further
compounded by the reality that visual identification of CCA-treated
wood is at times very difficult, especially when the wood is weathered,
dirty, painted, or if the wood is characterized by low retention
levels.\41\
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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.
---------------------------------------------------------------------------

    One pilot study conducted in the state of Florida showed that
visual sorting of CCA-treated wood at three different facilities
produced differing results of success. The two facilities with the
greatest success, which correctly identified 89 percent and 90 percent
of the pre-sorted wood as untreated wood, had provided extensive
training to its employees. The third facility correctly identified 60
percent as untreated wood, as evidenced by little or no training.
    Given the variability in visually identifying untreated versus
treated wood, augmenting technologies have been developed to detect the
presence of arsenic, copper, and chromium, as well as other
contaminants. Studies have concluded that the use of stains (e.g., PAN
Indicator Stain \42\) and X-ray Florescence (XRF) technology are the
most promising technologies, with chemical stains being suitable for
sorting small quantities of wood and XRF technology being better suited
for sorting large quantities of wood.
---------------------------------------------------------------------------

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

    Again, the Agency's concern was based on anticipated increases of
CCA-treated wood in C&D debris, as well as the accuracy of visual
sorting among C&D processors. Therefore, the Agency had requested
comment on the viability of either requiring, as best management
practices, C&D processors to implement formal training programs that
emphasize sorting treated wood from untreated wood or the use of XRF
technology or PAN indicator stains to provide greater certainty that
CCA-treated wood is removed from the processed C&D wood.
    After considering the information in the record, including comments
received, the Agency has determined that CCA-treated wood must be
excluded or removed from C&D debris, by trained operators, to ensure
that levels of arsenic and chromium in processed C&D wood remain
comparable to or lower than levels in clean wood and biomass. Unlike
formaldehyde levels which are expected to decrease over time, levels of
arsenic and chromium are expected to increase with continued use of
CCA-treated lumber or other copper, chromium, or arsenical
preservatives.
    The Agency's decision to require that operators be trained to
exclude or remove treated wood (with the exception of resinated wood)
as part of the best management practices, is based in part on the
results from the Florida pilot study which showed a high rate of
success when extensive training was provided for visual identification
of treated wood; and in part because both XRF technology and PAN
indicator

stains are limited in application when processing large amounts of C&D
debris. The evidence demonstrates that processors who train their
employees to visually recognize treated wood are successful in
excluding or removing CCA-treated wood.\43\ Therefore, by requiring
processors to train their operators as part of this categorical non-
waste listing, it will further ensure that levels of arsenic and
chromium in processed C&D wood remain comparable to or lower than
levels in clean wood and biomass as more CCA-treated wood is introduced
into C&D debris.
---------------------------------------------------------------------------

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

    Disaster Debris. The definition for C&D wood as proposed did not
include disaster debris. The Agency had defined ``clean cellulosic
biomass'' to include clean wood found in disaster debris.\44\ However,
disaster debris wood that is mixed with contaminated materials (e.g.,
lead-based painted wood, asbestos containing materials, etc.) had not
been specifically addressed. The Agency noted in the proposal that
management of disaster debris is more expedited and less controlled and
thus, prone to include contaminants that might otherwise be sorted out
prior to processing.\45\ In light of these concerns, the Agency
requested comment on the appropriateness of including wood that is
recovered from disaster debris, but that is mixed with other
contaminated materials prior to arrival at the processing facility, as
processed C&D wood. Thus, the Agency requested that commenters provide
any data or information to demonstrate that mixed disaster debris wood,
once processed, produces wood that contains contaminants comparable to
or lower than biomass and virgin wood. Further, the EPA also requested
comment on whether other conditions imposed by contingency plans, for
example, can facilitate the removal of contaminated material found in
disaster debris.
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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.
---------------------------------------------------------------------------

    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

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,

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.
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    \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

categorical non-waste when specific conditions are met which are:
conducting processing according to best management practices,