[Federal Register Volume 79, Number 71 (Monday, April 14, 2014)]
[Proposed Rules]
[Pages 21005-21033]
[FR Doc No: 2014-07375]

Vol. 79

Monday,

No. 71

April 14, 2014

Part III

Environmental Protection Agency

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40 CFR Part 241

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

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

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

Additions to List of Section 241.4 Categorical Non-Waste Fuels

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing amendments to the Non-Hazardous Secondary Materials (NHSM)
regulation under the Resource Conservation and Recovery Act (RCRA). The
NHSM rule generally established standards and procedures for
identifying whether non-hazardous secondary materials are solid wastes
when used as fuels or ingredients in combustion units. In a February 7,
2013 rule, EPA listed particular non-hazardous secondary materials as
``categorical non-waste fuels'' provided certain conditions are met.
EPA also indicated that it would consider adding additional non-
hazardous secondary materials to the categorical listings. Today's
action proposes to add three materials to the list of categorical non-
waste fuels: Construction and demolition (C&D) wood processed from C&D
debris according to best management practices; Paper recycling
residuals, including old corrugated cardboard (OCC) rejects, generated
from the recycling of recovered paper and paperboard products and
burned on-site by paper recycling mills whose boilers are designed to
burn solid fuel; and Creosote treated railroad ties that are processed
and combusted in units designed to burn both biomass and fuel oil.

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

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2013-0110 by one of the following methods:
     http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
     Email: Comments may be sent by electronic mail (email) to
<EMAIL_ADDRESS>Attention Docket ID No. EPA-HQ-RCRA-2013-0110.
     Mail: Send comments to: RCRA Docket, EPA Docket Center,
Mail Code 28221T, Environmental Protection Agency, 1200 Pennsylvania
Avenue NW., Washington DC 20460, Attention Docket ID No. EPA-HQ-RCRA-
2013-0110. Please include two copies of your comments. In addition,
please mail a copy of your comments on the information collection
provisions to the Office of Information and Regulatory Affairs, Office
of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th
St. NW., Washington DC 20503.
     Hand delivery: Deliver two copies of your comments to:
Environmental Protection Agency, EPA Docket Center, Room 3334, 1301
Constitution Avenue NW., Washington DC, Attention Docket ID No. EPA-HQ-
RCRA-2013-0110. Such deliveries are only accepted during the docket's
normal hours of operation and special arrangements should be made for
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2013-0110. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through http://www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, such as CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is<PHONE_NUMBER>, and the telephone number for the
RCRA Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: For more detailed information on
specific aspects of this rulemaking, contact George Faison, Office of
Resource Conservation and Recovery, Materials Recovery and Waste
Management Division, MC 5304P, Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703)
305-7652; fax number:<PHONE_NUMBER>; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

A. Does this action apply to me?

    Categories and entities potentially affected by this action, either
directly or indirectly, include, but may not be limited to the
following:

 Generators and Potential Users \a\ of the New Materials Proposed to be
            Added to the List of Categorical Non-Waste Fuels
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         Primary Industry Category or Sub Category            NAICS \b\
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Utilities..................................................          221
Construction of Buildings..................................          236
Site Preparation Contractors...............................       238910
Manufacturing..............................................   31, 32, 33
Wood Product Manufacturing.................................          321
Sawmills...................................................       321113
Wood Preservation (includes crosstie creosote treating)....       321114
Pulp, Paper, and Paper Products............................          322
Cement manufacturing.......................................        32731
Railroads (includes line haul and short line)..............          482
Scenic and Sightseeing Transportation, Land (Includes:            487110
 railroad, scenic and sightseeing).........................
Port and Harbor Operations (Used railroad ties)............       488310

Landscaping Services.......................................       561730
Solid Waste Collection.....................................       562111
Solid Waste Landfill.......................................       562212
Solid Waste Combustors and Incinerators....................       562213
Marinas....................................................       713930
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\a\ Includes: Major Source Boilers, Area Source Boilers, and Solid Waste
  Incinerators.
\b\ NAICS--North American Industrial Classification System.

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities potentially impacted by this
action. This table lists examples of the types of entities of which EPA
is aware that could potentially be affected by this action. Other types
of entities not listed could also be affected. To determine whether
your facility, company, business, organization, etc., is affected by
this action, you should examine the applicability criteria in this
rule. If you have any questions regarding the applicability of this
action to a particular entity, consult the person listed in the FOR
FURTHER INFORMATION CONTACT section.

B. What should I consider as I prepare my comments for EPA?

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

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

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

Preamble Outline

I. Statutory Authority
II. List of Abbreviations and Acronyms
III. Introduction
IV. Background
    A. History of the NHSM Rulemakings
    B. Background to Today's Proposed Rule
    C. How will EPA make a categorical non-waste determination?
V. Proposed Categorical Non-Waste Listing Determinations
    A. Construction and Demolition (C&D) Debris Processed According
to Best Management Practices
    1. Detailed Description of C&D Wood
    2. C&D Wood Under Current NHSM Final Rules
    3. Comments Submitted on C&D Wood in the December 2011 Proposed
Rule
    4. Scope of Proposed Categorical Non-Waste Listing for C&D Wood
    5. Rationale for Proposed Listing
    6. Summary and Request for Comment
    B. Paper Recycling Residuals (PRRs)
    1. Detailed Description of PRRs
    2. OCC Rejects Under Current NHSM Rules
    3. Scope of Proposed Categorical Non-Waste Listing for PRRs
    4. Rationale for Proposed Listing
    5. Summary and Request for Comment
    C. Creosote-Treated Railroad Ties (CTRTs)
    1. Detailed Description of CTRTs
    2. CTRTs Under Current NHSM Rules
    3. Scope of Proposed Categorical Listing for CTRTs
    4. Rationale for Proposed Listing
5. Summary and Request for Comment
VI. Technical Corrections
    A. Change to 40 CFR 241.3(b)(2)
    B. Change to 40 CFR 241.3(c)(1)
    C. Change to 40 CFR 241.3(d)(1)(iii)
VII. Effect of Today's Proposal on Other Programs
VIII. State Authority
    A. Relationship to State Programs
    B. State Adoption of the Rulemaking
IX. Cost and Benefits
X. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. Statutory Authority

    The EPA is proposing that additional non-hazardous secondary
materials (NHSMs) be categorically listed as non-waste fuels in 40 CFR
part 241.4(a) under the authority of sections 2002(a)(1) and 1004(27)
of the Resource Conservation and Recovery Act (RCRA), as amended, 42
U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the Clean Air
Act (CAA) directs the EPA to establish standards for Commercial and
Industrial Solid Waste Incinerators (CISWI), which burn solid waste.
Section 129(g)(6) of the CAA provides that the term ``solid waste'' is
to be established by the EPA under RCRA (42 U.S.C. 7429). Section
2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as
are necessary to carry out its functions under the Act. The statutory
definition of ``solid waste'' is stated in RCRA section 1004(27).

II. List of Abbreviations and Acronyms

ATCM Airborne Toxic Control Measure
BMP Best Management Practice
Btu British thermal unit
C&D Construction and Demolition
CAA Clean Air Act
CARB California Air Resources Board
CBI Confidential Business Information
CCA Chromated Copper Arsenate
CFR Code of Federal Regulations

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

III. Introduction

    The Resource Conservation and Recovery Act (RCRA) defines ``solid
waste'' as ``. . . any garbage, refuse, sludge from a waste treatment
plant, water supply treatment plant, or air pollution control facility
and other discarded material . . . resulting from industrial,
commercial, mining, and agricultural operations, and from community
activities . . .'' (RCRA section 1004 (27) (emphasis added)). The key
concept is that of ``discard'' and, in fact, this definition turns on
the meaning of the phrase, ``other discarded material,'' since this
term encompasses all other examples provided in the definition.
    The meaning of ``solid waste,'' as defined under RCRA, is of
particular importance as it relates to section 129 of the Clean Air Act
(CAA). If material is a solid waste under RCRA, a combustion unit
burning it is required to meet the CAA section 129 emission standards
for solid waste incineration units. If the material is not a solid
waste, combustion units are required to meet the CAA section 112
emission standards for commercial, industrial, and institutional
boilers. Under CAA section 129, the term ``solid waste incineration
unit'' is defined, in pertinent part, to mean ``a distinct operating
unit of any facility which combusts any solid waste material from
commercial or industrial establishments . . .'' 42 U.S.C. 7429(g)(1).
CAA section 129 further states that the term ``solid waste'' shall have
the meaning ``established by the Administrator pursuant to the Solid
Waste Disposal Act.'' Id at 7429(g)(6). The Solid Waste Disposal Act,
as amended, is commonly referred to as the Resource Conservation and
Recovery Act or RCRA.
    Regulations concerning non-hazardous secondary materials (NHSM)
used as fuels or ingredients in combustion units are codified in 40 CFR
part 241.\1\ Today's action proposes to amend the part 241 regulations
by adding three NHSMs to the list of categorical non-waste fuels
codified in 241.4(a). These new proposed categorical listings are for:
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    \1\ See 40 CFR 241.2 for the definition of non-hazardous
secondary material.
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     Construction and demolition (C&D) wood processed from C&D
debris according to best management practices (refer to Section V of
the preamble or the proposed regulatory text for a full description of
the categorical listing).
     Paper recycling residuals, including old corrugated
cardboard (OCC) rejects, generated from the recycling of recovered
paper and paperboard products and burned on-site by paper recycling
mills whose boilers are designed to burn solid fuel.
     Creosote-treated railroad ties that are processed and
combusted in units designed to burn both biomass and fuel oil.

IV. Background

A. History of the NHSM Rulemakings

    The Agency first solicited comments on how the RCRA definition of
solid waste should apply to NHSMs when used as fuels or ingredients in
combustion units in an advanced notice of proposed rulemaking (ANPRM),
which was published in the Federal Register on January 2, 2009 (74 FR
41). We then published an NHSM proposed rule on June 4, 2010 (75 FR
31844), which EPA made final on March 21, 2011 (76 FR 15456).
    The March 2011, NHSM final rule codified the standards and
procedures to be used for identifying which NHSMs are ``solid waste''
when used as fuels or ingredients in combustion units. Under that rule,
traditional fuels, including historically managed traditional fuels
(e.g. coal, oil, natural gas) and ``alternative'' traditional fuels
(e.g. clean cellulosic biomass) are not secondary materials and thus,
are not solid wastes. In addition, the Agency identified the following
NHSMs as not being solid wastes:
     The NHSM is used as a fuel and remains under the control
of the generator (whether at the site of generation or another site the
generator has control over) that meets the legitimacy criteria (40 CFR
241.3(b)(1));
     The NHSM is used as an ingredient in a manufacturing
process (whether by the generator or outside the control of the
generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));
     The NHSM has been sufficiently processed to produce a fuel
or ingredient that meets the legitimacy criteria (40 CFR 241.3(b)(4));
or
     Through a case-by-case petition process, it has been
determined that the NHSM handled outside the control of the generator
has not been discarded, is indistinguishable in all relevant aspects
from a fuel product, and meets the legitimacy criteria (40 CFR
241.3(c)).
    In October 2011, the Agency announced that it would be initiating a
new rulemaking proceeding to revise certain aspects of the NHSM
rule.\2\ On December 23, 2011, EPA published a proposed rule, which
addressed specific targeted amendments and clarifications to the 40 CFR
part 241 regulations (76 FR 80452). These proposed revisions and
clarifications were limited to certain issues on which the Agency had
received new information, as well as targeted revisions that the Agency
believed were appropriate in order to allow implementation of the rule
as EPA originally intended. The amendments to the part 241 regulations
were made final on February 7, 2013 with modifications to Sec.  241.2,
Sec.  241.3 and the addition of Sec.  241.4, and include the following:
\3\
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    \2\ See October 14, 2011, Letter from Administrator Lisa P.
Jackson to Senator Olympia Snowe. See docket (EPA-HQ-RCRA-2008-0329-
1873).
    \3\ See 78 FR 9112 (February 7, 2013) for a discussion of the
rule and the Agency's basis for its decisions.
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     Revised Definitions: EPA revised three definitions
discussed in the proposed rule: (1) ``clean cellulosic biomass,'' (2)
``contaminants,'' and (3) ``established tire collection programs.'' In
addition, based on comments received on the proposed rule, the Agency
revised the definition of ``resinated wood.''
     Contaminant Legitimacy Criterion for NHSMs Used as Fuels:
EPA issued revised contaminant legitimacy criterion for NHSMs used as
fuels to provide additional details on how contaminant-specific
comparisons between NHSMs and traditional fuels may be made. \4\

The revisions include: (1) the ability to compare groups of
contaminants where technically reasonable; (2) clarification that
``designed to burn'' means can burn or does burn, and not necessarily
permitted to burn; (3) the ability to use traditional fuel data from
national surveys and other sources beyond a facility's current fuel
supplier; and (4) the ability to use ranges of traditional fuel
contaminant levels when making contaminant comparisons, provided the
variability of the NHSM contaminant levels is also considered.
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    \4\ Under 40 CFR 241.3(d)(1), the legitimacy criteria for fuels
include: (1) management of the material as a valuable commodity
based on the following factors--storage prior to use must not exceed
reasonable time frames, and management of the material must be in a
manner consistent with an analogous fuel, or where there is no
analogous fuel, adequately contained to prevent releases to the
environment; (2) the material must have a meaningful heating value
and be used as a fuel in a combustion unit that recovers energy; and
(3) the material must contain contaminants at levels comparable to
or less than those in traditional fuels which the combustion unit is
designed to burn.
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     Categorical Non-Waste Determinations for Specific NHSMs
Used as Fuels: EPA codified determinations that certain NHSMs are non-
wastes when used as fuels. If a material is categorically listed as a
non-waste fuel, persons that generate or burn these NHSMs will not need
to make individual determinations, as required under the existing
rules, that these NHSMs meet the legitimacy criteria. Except where
otherwise noted, combustors of these materials will not be required to
provide further information demonstrating their non-waste status. Based
on all available information, the EPA determined that the following
NHSMs are not solid wastes when burned as a fuel in combustion units
and has categorically listed them in 241.4(a).\5\ (1) Scrap tires that
are not discarded and are managed under the oversight of established
tire collection programs, including tires removed from vehicles and
off-specification tires;
    (2) Resinated wood; (3) Coal refuse that has been recovered from
legacy piles and processed in the same manner as currently-generated
coal refuse;
    (4) Dewatered pulp and paper sludges that are not discarded and are
generated and burned on-site by pulp and paper mills that burn a
significant portion of such materials where such dewatered residuals
are managed in a manner that preserves the meaningful heating value of
the materials.
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    \5\ In the March 2011 NHSM rule, EPA identified two NHSMs as not
being solid wastes, although persons would still need to make
individual determinations that these NHSMs meet the legitimacy
criteria: (1) Scrap tires used in a combustion unit that are removed
from vehicles and managed under the oversight of established tire
collection programs and (2) resinated wood used in a combustion
unit. However, in the February 2013 NHSM rule, the Agency amended
the regulations and categorically listed these NHSMs as not being
solid wastes.
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     Rulemaking Petition Process for Other Categorical Non-
Waste Determinations: EPA made final a rulemaking process in Sec.
241.4(b) that provides persons an opportunity to submit a rulemaking
petition to the Administrator, seeking a determination for additional
NHSMs to be categorically listed in Sec.  241.4(a) as non-waste fuels,
if they can demonstrate that the NHSM meets the legitimacy criteria, or
after balancing the legitimacy criteria with other relevant factors,
EPA determines that the NHSM is not a solid waste when used as a fuel.
    The February 2013 amendments under Sec.  241.4, entitled ``Non-
Waste Determinations for Specific Non-Hazardous Secondary Materials
When Used as a Fuel'' were in response to issues raised after
promulgation of the March 2011, NHSM final rule concerning application
of the legitimacy criteria, and the extent of information required to
make a demonstration that an NHSM is not a solid waste. To provide
additional clarity and assist in implementation of the rule, the Agency
also codified in Sec.  241.4(b) a process for determining that certain
NHSMs are not solid wastes when used as a fuel for the purpose of
energy recovery, where the Agency has sufficient information and
knowledge that these NHSMs are not wastes.
    Based on these non-waste categorical determinations, as discussed
above, facilities burning NHSMs that meet the categorical listing
description will not need to make individual determinations that the
NHSM meets the legitimacy criteria or provide further information
demonstrating their non-waste status on a site-by-site basis, provided
they meet the conditions of the categorical listing. Please refer to
Section IV.C (How Will EPA Make a Categorical Non-Waste Determination?)
below for details on the process.

B. Background to Today's Proposed Rule

    As discussed in the February 2013 final rule,\6\ the Agency
received comments on the December 23, 2011, proposed rule that
additional NHSMs should be categorically listed as non-waste fuels for
which the Agency had not requested information as a part of that
proposal. We did not respond to such comments and issues since they
were beyond the scope of that rulemaking and indicated that, because
the Agency did not specifically solicit comments or propose that those
NHSMs be categorically listed in 40 CFR 241.4(a), the Agency must go
through notice and comment rulemaking before making a final decision.
The February 2013 final rule noted, however, that two NHSMs--paper
recycling residuals (including OCC rejects) and construction and
demolition debris processed pursuant to best practices--would be good
candidates for a future proposal based on information provided to the
Agency \7\ and expected to propose those listings in a subsequent
rulemaking.
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    \6\ 78 FR 9111, February 7, 2013 (page 9172 in a section called
``Other Materials for Which Additional Information Was Not
Requested'').
    \7\ Comments on December 23, 2011 proposed rule supporting a
categorical non-waste determination for paper recycling residuals:
American Forest & Paper Association, et al. EPA-HQ-RCRA-2008-0329-
1946-A1; Georgia-Pacific LLC (GP) EPA-HQ-RCRA-2008-0329-1902-A1;
National Alliance of Forest Owners (NAFO) EPA-HQ-RCRA-2008-0329-
1950-A2; Packaging Corporation of America (PCA) EPA-HQ-RCRA-2008-
0329-1966-A1; and United Steelworkers (USW) EPA-HQ-RCRA-2008-0329-
1910-A1. Comments supporting a categorical non-waste determination
for paper recycling residuals and C&D wood: American Forest & Paper
Association, et al. EPA-HQ-RCRA-2008-0329-1946-A1; Construction
Materials Recycling Association (CMRA) EPA-HQ-RCRA-2008-0329-1928-
A1; Covanta Energy Corporation (Covanta) EPA-HQ-RCRA-2008-0329-1893-
A; Energy Recovery Council (ERC) EPA-HQ-RCRA-2008-0329-1927-A1;
Georgia-Pacific LLC (GP) EPA-HQ-RCRA-2008-0329-1902-A1; Michigan
Biomass EPA-HQ-RCRA-2008-0329-1905-A1; National Alliance of Forest
Owners (NAFO) EPA-HQ-RCRA-2008-0329-1950-A2; United Steelworkers
(USW) EPA-HQ-RCRA-2008-0329-1910-A1; Waste Management (WM) EPA-HQ-
RCRA-2008-0329-1957-A2; and Weyerhaeuser EPA-HQ-RCRA-2008-0329-1930-
A1.
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    In addition to the comments identified in the February 2013 rule,
the Agency received supplementary information on these two NHSMs from
stakeholders (see Section V). As discussed in the following sections,
EPA believes that the information received to date, when taken
together, supports a categorical determination of these materials as
non-waste fuels and is today proposing to list them as categorical non-
waste fuels in section 241.4(a).
    Furthermore, the Agency identified creosote-treated railroad ties
in the February 2013 final rule as a potential candidate for a
categorical non-waste listing. However, the Agency also indicated that
additional information would need to be submitted before this NHSM
could be addressed. If such information supported the representations
made by the industry--that is, the American Forest & Paper Association
(AF&PA) and the American Wood Council--EPA stated that it expected to
propose a categorical listing

for this material as well.8 9 Finally, we noted in the
February 2013 final rule that the Agency received a letter from the
Treated Wood Council asking that non-hazardous treated wood be
categorically listed--a broad category that would include creosote-
treated railroad ties. The Agency noted that it was in the process of
reviewing the information in the letter and would consider whether to
propose a categorical listing for this broader set of treated wood
material.
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    \8\ The additional information EPA cited in the preamble to the
final rule for which it solicited comment included: (1) a list of
industry sectors, in addition to forest product mills, that burn
creosote-treated railroad ties for energy recovery, (2) the types of
boilers (e.g., kilns, stoker boilers, circulating fluidized bed,
etc.) that burn creosote-treated railroad ties for energy recovery,
(3) the traditional fuels and relative amounts (e.g., startup, 30%,
100%) of these traditional fuels that could otherwise generally be
burned in these types of boilers, (4) the extent to which non-
industrial boilers (e.g., commercial or residential boilers) burn
creosote-treated railroad ties for energy recovery, and (5)
laboratory analyses for contaminants known to be present in
creosote-treated railroad ties or known to be significant components
of creosote, specifically, polycyclic aromatic hydrocarbons (i.e.,
PAH-16), dioxins, dibenzofurans, hexachlorobenzene, biphenyl,
quinoline, cresols, and 2,4-dinitrotoluene.
    \9\ 78 FR 9111, February 7, 2013 (page 9172)
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    The Agency has reviewed the information submitted from stakeholders
regarding creosote-treated railroad ties. As discussed in the following
sections, EPA believes that the information received to date, when
taken together, supports a categorical determination of the processed
creosote-treated railroad ties as non-waste fuels when combusted in
units designed to burn both biomass and fuel oil and is today proposing
to list them as categorical non-waste fuels in section 241.4(a).

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

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

    \10\ For a full discussion regarding the petition process for
receiving a categorical non-waste determination, see 78 FR 9111,
February 7, 2013 (page 9158).
    \11\ Supplementary information received from by M.A. Energy
Resources (February 2013) in support of the crosstie derived fuel
was submitted as a categorical petition in accordance 40 CFR
241.4(b).
---------------------------------------------------------------------------

    Based on comments received on this information, the Agency will
determine whether (or not) to list the three proposed NHSMs as
categorical non-wastes in a final rule. Specific preliminary
determinations on whether processed C&D wood, paper recycling
residuals, and creosote-treated railroad ties should be listed as
categorical non-wastes and how the information was assessed by EPA
according to the criteria in Sec.  241.4(b)(5) are discussed in detail
in Section V.
    As noted above, the Agency also received a petition from the
Treated Wood Council asking that non-hazardous treated wood be
categorically listed--a broad category that would include creosote-
treated railroad ties. Other treated wood addressed in the petition
included waterborne borate-based preservatives, waterborne organic-
based preservatives, waterborne copper-based wood preservatives
(ammoniacal/alkaline copper quat, copper azole, copper HDO, alkaline
copper betaine, or copper naphthenate); creosote; oilborne copper
naphthenate; pentachlorophenol; or dual-treated with any of the above.
The Agency is in the process of reviewing that petition and
supplementary information submitted subsequent to the petition.
Accordingly, while creosote treated railroad ties is included in the
current proposal, other treated wood materials identified in the
Treated Wood Council's petition are not addressed in today's proposal.
If upon completion of the Agency's review of the Treated Wood Council's
petition the information supports a categorical listing of one or more
of these other treated wood materials, the Agency would propose those
materials in a future rulemaking.

V. Proposed Categorical Non-Waste Listing Determinations

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

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

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

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

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

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

    \13\ Clean C&D wood is included in the definition of ``clean
cellulosic biomass'' and thus, may be combusted as a traditional
fuel if it does not contain contaminants at concentrations not
normally associated with virgin wood. (See 78 FR 9138, February 7,
2012 and 40 CFR 241.2.) Conversely, C&D wood that is not ``clean''
is that which must be processed to remove contaminants such as lead-
painted wood, treated wood containing contaminants, such as arsenic
and chromium, metals and other non-wood materials. (See 78 FR 9139,
February 7, 2013).
---------------------------------------------------------------------------

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

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

2. C&D Wood Under Current NHSM Final Rules
    In both the March 2011 and February 2013 NHSM final rules, EPA
discussed two scenarios under which the Agency would consider C&D wood
to be a non-waste fuel.\15\ First, ``clean'' C&D wood can be burned as
a traditional fuel--without any requirement for testing or
recordkeeping--because it is a ``clean cellulosic biomass'' material
indistinguishable in composition from virgin wood. Second, the Agency
believes that wood recovered from C&D debris (i.e., contaminated wood)
can be sufficiently processed to meet the legitimacy criteria and,
thus, would be a non-waste fuel, although combustion facilities burning
the material would need to keep records documenting the material's non-
waste status. Records would need to document not only how the
processing operations meet the definition of processing in section
241.2, but also how the fuel product meets the NHSM legitimacy
criteria.16 17 The Agency believes that much of the C&D wood
recovered from construction activities is unused and untreated, thereby
falling under the definition of ``clean cellulosic biomass'' (i.e., the
first scenario), and that much of the C&D wood currently recovered from
demolition activities can be sufficiently processed to meet the
legitimacy criteria (i.e., the second scenario).
---------------------------------------------------------------------------

    \15\ 76 FR 15456, March 21, 2011 (page 15485); and 78 FR 9111,
February 7, 2013 (page 9138).
    \16\ Recordkeeping requirements for area source boilers are
found at Sec.  63.11225(c)(2)(ii), while recordkeeping requirements
for major source boilers are found at Sec.  63.7555(d)(2).
    \17\ While the combustor would be responsible for maintaining
the records that such NHSM met the legitimacy criteria, the
combustor could request that the person that generated the C&D wood
provide them with documentation that the processing operations meets
the definition of processing, as well as the legitimacy criteria,
especially the contaminant legitimacy criterion.
---------------------------------------------------------------------------

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

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

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

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

accordance with industry practices proven to produce a wood product
meeting the NHSM legitimacy criteria. The commenters identified
``proven practices'' as the sorting (both mechanical and manual) of C&D
material to separate the following contaminants: non-wood material,
wood treated with pentachlorophenol, chromated copper arsenic (CCA)
treated wood, or other copper, chromium or arsenical preservatives, and
lead (through the separation of either lead-painted wood or fines or
through other means as specified in applicable state law). Commenters
also compiled a dataset of contaminant concentrations in processed C&D
wood from nine combustion facilities in seven states to demonstrate the
efficacy of the identified practices.
    Case-by-case analysis is not necessary, the trade organizations
contend, to ensure that sufficient processing occurs and that C&D wood
products--produced by different processors using different sorting
techniques--are consistently managed as a valuable commodity, have
meaningful heating values, and contain contaminants at levels
comparable to or lower than traditional fuels. Instead, they argue that
persons burning C&D wood for energy recovery only need to certify that
the processed C&D wood came from a facility using the aforementioned
sorting practices.
    Other commenters on the December 2011 NHSM proposed rule asserted
that C&D wood should be regulated as a solid waste based on what they
described as highly unpredictable contaminant levels. The commenters
referenced specific combustion facilities that accepted C&D wood,
including lead-painted wood and CCA-treated wood, as well as plastics
and foreign debris.
4. Scope of Proposed Categorical Non-Waste Listing for C&D Wood
    EPA has reviewed the information submitted, including the study of
contaminants in processed C&D wood from seven states. Based on this
review, the Agency is proposing a categorical non-waste listing as
follows: Construction and demolition (C&D) wood processed from C&D
debris according to best management practices. Combustors of C&D wood
must obtain a written certification from C&D processing facilities that
the C&D wood has been processed by trained operators in accordance with
best management practices.\19\ Best management practices for purposes
of this categorical listing must include sorting by trained operators
that excludes or removes the following materials from the final product
fuel: non-wood materials (e.g., polyvinyl chloride and other plastics,
drywall, concrete, aggregates, dirt, and asbestos), and wood treated
with creosote,\20\ pentachlorophenol, chromated copper arsenate, or
other copper, chromium, or arsenical preservatives. In addition:
---------------------------------------------------------------------------

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

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

    \21\ This rulemaking does not change the waste status of C&D
wood prior to processing, up to which point the material would
likely be a solid waste subject to appropriate federal, state, and
local requirements unless it meets the definition of ``clean
cellulosic biomass.''
---------------------------------------------------------------------------

    Compared to mixed C&D debris, processed C&D wood will have
significantly fewer contaminants and improved fuel characteristics.
Specifically, the removal or exclusion of specified materials, such as
creosote-treated wood (PAHs, dibenzofuran), pentachlorophenol-treated
wood (pentachlorophenol, dioxins), CCA-treated wood (chromium,
arsenic), other copper, chromium, and arsenical treated wood, plastics
(chlorine), drywall (sulfur), lead-based paint (lead), as well as
insulation and other materials containing asbestos,\22\ would result in
significant contaminant removal. In addition, the removal of concrete,
aggregates, dirt, and other non-combustible material will significantly
increase the material's energy value. Finally, grinding all remaining
wood to a specified size will allow combustors to transport, store, and
use processed C&D wood in the same manner as virgin wood and biomass
materials.
---------------------------------------------------------------------------

    \22\ CAA regulations provide additional safeguards to ensure
asbestos is removed from buildings prior to demolition. Part 61,
subpart M, Sec.  61.145 requires that owners or operators of a
demolition or renovation activity to inspect the affected building
for the presence of asbestos prior to demolition or renovation and
notify the Administrator. EPA notes, however, that the 40 CFR 61.141
definition of ``facility'' explicitly excludes ``residential
buildings having four or fewer dwelling units'' thus, small
residential buildings that are demolished or renovated are not
covered by the Federal asbestos NESHAP regardless of whether the
demolition or renovation is performed by agents of the owner of the
property or whether the demolition or renovation is performed by
agents of the municipality. See also the ``Asbestos NESHAP
Clarification of Intent'' (60 FR 38725; July 28, 1995).
---------------------------------------------------------------------------

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

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

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

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

    \24\ Appendix A of April 26, 2013, submittal from Susan Bodine
on behalf of BPA and CMRA.
    \25\ USEPA, Office of Air Quality Planning and Standards,
Emissions Database for Boilers and Process Heaters Containing Stack
Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and
ICR No. 2286.03 (Version 6). EPA Docket/Document Number EPA-HQ-OAR-
2002-0058-3255. February 2011.
---------------------------------------------------------------------------

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

            Table 1--Comparison of Contaminants in Clean Wood/Biomass and Processed C&D Wood 26 27 28
----------------------------------------------------------------------------------------------------------------
                                   Clean Wood/                          Processed C&D wood
                                     Biomass     ---------------------------------------------------------------
          Contaminant          ------------------
                                      Range           samples         Average         90% UPL         Maximum
----------------------------------------------------------------------------------------------------------------
                              Contaminants Most Likely to be Present in C&D Debris
----------------------------------------------------------------------------------------------------------------
Arsenic.......................  ND--298.........         n = 221            35.9            91.8             261
Chromium......................  ND--340.........         n = 212            45.0             116             283

Lead..........................  ND--340.........         n = 224            53.9             136             482
Mercury.......................  ND--1.1.........         n = 180             0.1            0.16             0.7
Chlorine......................  ND--5400........         n = 173             809            1567            3521
Fluorine......................  ND--300.........          n = 86            45.9             139             313
Sulfur........................  ND--8700........         n = 183            1300            2200            7300
Formaldehyde..................  1.6--27.........          n = 45            47.6           104.2           176.8
Pentachlorophenol.............  ND..............          n = 21            19.7             N/A             126
----------------------------------------------------------------------------------------------------------------
                              Contaminants Less Likely to be Present in C&D Debris
----------------------------------------------------------------------------------------------------------------
Antimony......................  ND--26..........          n = 50             2.6             7.1            16.6
Beryllium.....................  ND--10..........          n = 50             0.1            0.23             0.3
Cadmium.......................  ND--17..........         n = 107             0.3            0.53             1.3
Cobalt........................  ND--213.........          n = 50             1.1             2.1             3.5
Manganese.....................  ND--15800.......          n = 50            78.8             115             180
Nickel........................  ND--540.........          n = 50             4.0             8.6            27.4
Selenium......................  ND--9...........          n = 43             0.4             1.0             1.3
Nitrogen......................  200--39500......          n = 75            3900            8000           12600
----------------------------------------------------------------------------------------------------------------

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

    \26\ Sources: Clean Wood/Biomass ranges taken from a combination
of EPA data and literature sources, as presented in EPA document
Contaminant Concentrations in Traditional Fuels: Tables for
Comparison, November 29, 2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm. Processed C&D Wood data from April 26,
2013, submittal by Susan Bodine on behalf of BPA and CMRA.
    \27\ All units expressed in parts per million (ppm) on a dry
weight basis.
    \28\ Upper Prediction Limit (UPL) calculations were made by
commenters using EPA's ProUCL software, using either a lognormal
distribution or nonparametric statistics, as appropriate.
---------------------------------------------------------------------------

    With the exception of four contaminants--fluorine, lead,
formaldehyde and pentachlorophenol, every sample of processed C&D
wood's contaminant levels was well within the range of clean wood and
biomass materials. With respect to these four contaminants:
     Fluorine: While only one sample out of 45 samples of
processed C&D wood exceed the range for fluorine in clean wood and
biomass, the Agency still considers fluorine to be at levels comparable
to those found in clean wood and biomass since this lone sample is
present within a small acceptable range (i.e., 313 ppm is comparable to
300 ppm).29 30
---------------------------------------------------------------------------

    \29\ 76 FR 15523-24, March 21, 2011.
    \30\ In addition to determining that the one sample of fluorine
is within a small acceptable range, one can consider that the Upper
Prediction Limit (UPL) for fluorine in processed C&D wood, when
calculated at a 90 percent confidence level based on all 45 samples
(139 ppm), is well within the range of clean wood and biomass
materials. The UPL taken at a 90 percent confidence level yields a
number (i.e., 139 ppm), and in the context of analyzing contaminant
samples, persons can be confident that the next sample taken will be
at or below that number 90 percent of the time.
---------------------------------------------------------------------------

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

via the sorting process by selecting only unpainted wood from incoming
C&D debris for further processing, (2) use XRF to ensure that painted
wood included in the final product fuel does not contain lead-based
paint, or (3) require documentation that a building has been tested for
and does not include lead-based paint before accepting demolition
debris from that building.
    [cir] Facilities using negative sorting must remove fine particles,
which may include asbestos fibers and other contaminants in addition to
lead, and they must also either: (1) remove painted wood via the
sorting process, (2) use XRF to detect and remove lead-painted wood, or
(3) require documentation that a building has been tested for and does
not include lead-based paint before accepting demolition debris from
that building.
    The Agency believes, based on the available information, that
facilities complying with these conditions would produce processed C&D
wood that contains lead at levels comparable to those in clean wood and
biomass.
     Pentachlorophenol: The presence of pentachlorophenol in
some processed C&D wood results from processors either choosing to
include industrial wood products treated with pentachlorophenol in
their product fuel (in the case of positive sorting) or from processors
not removing those same industrial wood products from C&D debris (in
the case of negative sorting) prior to the final grinding step. EPA
restricted the use and sale of pentachlorophenol in 1987, with no
registered residential uses allowed for the past 26 years. The Agency
believes that the pentachlorophenol concentrations in processed C&D
wood are a direct result of easily identified wood products,
predominantly utility poles, that processing facilities can choose to
exclude or remove prior to grinding recovered C&D wood.\31\ Therefore,
under the regulatory conditions proposed in today's rule, processing
facilities must exclude or remove these known sources of
pentachlorophenol from their final product fuel for it to be considered
a categorical non-waste fuel.
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    \31\ Based on discussions with plant staff during an EPA tour of
Industrial Disposal Services, Inc. Broad Run Recycling facility in
Manassas, Virginia on May 23, 2013. The facility processes discarded
C&D wood into a product fuel.
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     Formaldehyde: For C&D debris processed pursuant to best
management practices, inclusive of the regulatory conditions in today's
proposal, formaldehyde (present in concentrations as high as 176.8 ppm
versus 27 ppm in clean wood/biomass) is the only remaining contaminant
that raises questions as to whether it meets the contaminant legitimacy
criterion. Although the situation appears similar to the categorical
non-waste listing for resinated wood in section 241.4(a)(2), details
surrounding use of the two NHSMs as fuel are not the same. In the case
of resinated wood, as defined in section 241.2, the Agency determined
that energy recovered from the combustion of manufacturing process
residues and off-specification resinated wood is integrally tied to the
industrial production process. The equivalent for C&D wood would be
sawmills reliant on recovering energy from sawdust and off-
specification lumber to power the construction lumber production
process. Sawmills may do this, but that is not the scenario commenters
have described and the Agency is evaluating.
    While EPA disagrees with petitioners' claims that resinated wood
components in C&D debris are categorical non-wastes and the corollary
that formaldehyde concentrations are therefore irrelevant, the Agency
agrees that additional factors are worth considering in determining
whether to propose to list processed C&D wood categorically as a non-
waste fuel. First, formaldehyde concentrations in processed C&D wood
may reach 176.8 ppm, but are lower than in pure resinated wood, which
may reach 200 ppm. National rules developed by the CARB Composite Wood
ATCM, per Public Law 111-199, will ensure that newly produced resinated
wood will contain even less formaldehyde in the future by setting
limits on how much formaldehyde may be released.\32\ Second, for many
combustors, processed C&D wood scraps that include resinated wood
components, actually have added value and are either selected for (in
the case of positive sorting) or specifically not removed (in the case
of negative sorting) because the wood has been kiln-dried prior to use
in construction. Kiln-dried wood has a greater heating value than
virgin wood, almost double in some cases. Kiln-dried wood also has a
more consistent moisture content; an equally important benefit to
combustors because a consistent fuel improves combustion efficiency and
leads to reduced emissions of particulate matter, carbon monoxide and
other organic hazardous air pollutants.\33\
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    \32\ On May 29, 2013, EPA proposed two rules to protect the
public from the risks associated with exposure to formaldehyde. The
proposals would implement the Formaldehyde Standards for Composite
Wood Products Act (Title VI of the Toxic Substances Control Act):
one will implement the Act's emission standards and the other will
ensure products meet the TSCA formaldehyde emission standards. See
http://www.epa.gov/oppt/chemtest/formaldehyde/.
    \33\ At this time, the Agency is not requiring resinated wood to
be excluded or removed from C&D debris as part of best management
practices, but is requesting comment on the decision to balance
elevated formaldehyde levels with greater heating value and
consistent moisture content. See Section 6. Summary and Request for
Comments.
---------------------------------------------------------------------------

    Therefore, based on all available information, including a careful
analysis of contaminant levels, the Agency is proposing to
categorically list in 40 CFR 241.4(a) processed C&D wood using trained
operators in accordance with best management practices and certified as
such by the processor as a non-waste fuel.\34\ After weighing the
evidence, the Agency has concluded that, provided the regulatory
conditions in today's proposal are met, the processing of mixed C&D
debris transforms the material into a product fuel.
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    \34\ The categorical listing proposed in this rule would allow
material to be considered clean biomass without having to test each
batch of processed wood for contaminant levels. Instead, the
material could be considered clean biomass if certain practices are
followed, as described in the rule.
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6. Summary and Request for Comment
    EPA believes it has sufficient information to determine that C&D
debris that is processed by trained operators according to best
management practices is not a solid waste when used as a fuel, provided
those practices meet the criteria proposed today. The Agency invites
comment on this proposed categorical non-waste determination, and
specifically on the following items:
    Processing Techniques for lead and pentachlorophenol. We request
comment on the efficacy of specific processing techniques related to
lead referenced in today's proposal, as well as the feasibility of
reducing pentachlorophenol concentrations in processed C&D wood by
excluding or removing utility poles and other industrial wood products
known to be treated with the chemical.
    Formaldehyde levels. The Agency seeks comment on the decision to
balance elevated formaldehyde levels with the greater heating value and
more consistent moisture content that resinated wood components lend to
processed C&D wood, rather than specifically requiring that resinated
wood be excluded or removed from C&D debris as part of the best
management practices.\35\ Any additional factors that

would be appropriate to consider are welcome.
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    \35\ Where any one of the legitimacy criteria in Sec.
241.3(d)(1) is not met, ``other relevant factors'' may be considered
by the Administrator when granting or denying a non-waste
determination. See Sec.  241.4(b)(5)(ii).
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    CCA-treated wood. As proposed, CCA-treated wood is to be excluded
or removed from C&D debris. Although the data submitted to the Agency
indicates that arsenic and chromium concentrations in processed C&D
wood are comparable to levels found in traditional fuels, there is some
concern that because a majority of CCA-treated wood is still in use, we
will see an increase in the amount of CCA-treated wood in C&D debris.
Currently, CCA-treated wood can represent up to 30% of the C&D wood
waste stream.\36\ The concern is further compounded by the reality that
visual identification of CCA-treated wood is at times very difficult,
especially when the wood is weathered, dirty, painted, or if the wood
is characterized by low retention levels.\37\ One pilot study conducted
in the state of Florida showed that visual sorting of CCA-treated wood
at three different facilities produced differing results of success.
The two facilities with the greatest success, which correctly
identified 89% and 90% of the pre-sorted wood as untreated wood, had
provided extensive training to its employees. The third facility
correctly identified 60% as untreated wood. Given the variability in
visually identifying untreated versus treated wood, augmenting
technologies have been developed to detect the presence of arsenic,
copper, and chromium, as well as other contaminants. Studies have
concluded that the use of stains (e.g., PAN Indicator Stain) \38\ and
X-ray Florescence (XRF) technology are the most promising technologies,
with chemical stains being suitable for sorting small quantities of
wood and XRF technology being better suited for sorting large
quantities of wood.
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    \36\ Fattah, Hassan Abdel, et al. ``Online Sorting of Recovered
Wood Waste Using Automated X-Ray Technology'' Final Report; November
30, 2009. See p. 2.
    \37\ Blassino, Monika, et al. ``Methods to control Fuel Quality
at Wood Burning Facilities.''
    \38\ PAN stands for the chemical name of 1-(2-pyridylazo)-2-
naphthol, an orange-red solid with a molecular formula C15H11N3O. It
is used to determine the presence of almost all metals excluding
alkali metals. The stain is not specific to arsenic within CCA. It
reacts with the copper, so that wood treated with any copper-based
preservative will also test positive using this stain.
---------------------------------------------------------------------------

    Again, the Agency's concern is based on anticipated increases of
CCA-treated wood in C&D debris, as well as the accuracy of visual
sorting among C&D processors. Therefore, the Agency requests comment on
the viability of either requiring, as best management practices, C&D
processors to implement formal training programs that emphasize sorting
of treated wood from untreated wood \39\ or the use of XRF technology
to provide greater certainty that CCA-treated wood is removed from the
processed C&D wood.
---------------------------------------------------------------------------

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

    Disaster Debris. The definition for C&D wood as proposed does not
include disaster debris. The Agency has defined ``clean cellulosic
biomass'' to include clean wood found in disaster debris.\40\ However,
disaster debris wood that is mixed with contaminated materials (e.g.,
lead-based painted wood, asbestos containing materials, etc.) has not
been specifically addressed. The Agency notes that management of
disaster debris is more expedited and less controlled and thus, prone
to include contaminants that might otherwise be sorted out prior to
processing.\41\ Despite these concerns, the Agency requests comment on
the appropriateness of including wood that is recovered from disaster
debris, but that is mixed with other contaminated materials prior to
arrival at the processing facility, as processed C&D wood and eligible
for the categorical non-waste listing. Commenters should provide any
data or information that demonstrates mixed disaster debris wood, once
processed, produces wood that contains contaminants comparable to or
lower than biomass and virgin wood. Further, whether other conditions
imposed by contingency plans, for example, can facilitate the removal
of contaminated material found in disaster debris.
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    \40\ 76 FR 15478 (March 21, 2011); codified at Sec.  241.2.
    \41\ Management of disaster debris can involve significantly
greater volumes. For example, prior to the 1994 Northridge
earthquake in Los Angeles, one local company processed 150 tons of
C&D debris per day. After the earthquake, the city picked up as much
as 10,000 tons of C&D debris per day.
---------------------------------------------------------------------------

    Trained operators. The proposed best management practices require
sorting by ``trained operators'' to remove or exclude all non-wood
debris, certain treated wood, and lead-based painted wood from the
final product fuel. The Agency believes that operators who are trained
to sort C&D debris, especially to recognize treated wood, play an
important role in reducing contaminant levels in the final fuel
product. Therefore, we request comment on whether the Agency should
require that C&D processors have formal training programs in place as
part of the best management practices, as well as whether processors
would be required to keep records as a condition of the categorical
listing to demonstrate that such operators have been formally trained.
The Agency is not prescribing what a training program could include at
this time. Certain factors such as where the C&D debris originates from
and the amount of sorting prior to arrival at the processing facility
can influence the extent and type of contaminated material arriving at
the processing facility. Thus, the Agency also seeks comment on
training program requirements that would be flexible enough to address
the variability of the incoming C&D debris, but that provide added
assurance that C&D processing facilities are producing a non-waste fuel
product with contaminants that are no greater than clean wood/biomass.
    Written Certification. As proposed, the combustor would need to
obtain a written certification from the C&D processor that the C&D wood
has been processed by trained operators in accordance with best
management practices. The written certification could take the form of
a contract, purchase agreement, or other document that requires the
supplier to process the C&D wood according to combustor specifications
and best management practices. It is the Agency's understanding that
purchase agreements and contracts are common between a processor/
supplier and combustor. Thus, we request comment on whether such
agreements and contracts are sufficient documentation (i.e., can serve
as the written certification) or if a written certification statement
developed specifically to address the requirements in this proposal
would be clearer and more effective. We would note that the existing
record keeping requirements for combustors that combust NHSMs as fuels
listed under section 241.4,\42\ the purchase agreement, contract, or
other document that would meet the written certification requirement
would be considered a ``record'' which satisfies the record keeping
requirements of sections 60.2740(u) (Emissions Guidelines) and
60.2175(w) (New Source Performance Standards) for CISWI units and
sections 63.11225(c)(2)(ii) for area source boilers and 63.7555(d)(2)
for major source boilers.\43\
---------------------------------------------------------------------------

    \42\ Section 241.4 lists the categorical or ``Non-waste
determinations for specific non-hazardous secondary materials when
used as a fuel.''
    \43\ These sections state that for units combusting NHSM as fuel
per Sec.  241.4, you must keep records documenting that the material
is listed as a non-waste under Sec.  241.4(a).

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B. Paper Recycling Residuals (PRRs)

1. Detailed Description of PRRs
    Paper recycling residuals (PRRs) are a co-product of the paper
recycling manufacturing process and are generated on-site at paper
recycling mills. The feedstock used in paper recycling mills, where
PRRs are generated, is post-consumer paper, such as magazines,
newspaper, office paper, and old corrugated containers obtained through
various commercial and residential recycling programs or purchased from
retail establishments.\44\ However, some paper recycling mills'
feedstock is limited solely to old corrugated containers. The paper
recycling process generates two materials: (1) Recovered fibers used to
make new paper and paperboard products; and (2) processing residuals
(or PRRs) that are not suitable for making new paper products, but are
landfilled, sent for metals recycling, or used as a fuel.\45\ Today's
proposal considers only the processing residuals, or ``PRRs,'' that
primarily consist of unsuitable wood fibers that are used as a
fuel.\46\ See Section V.B.4 (Rationale for Proposed Listing) below for
a more detailed description of how and where PRRs are generated in the
paper recycling process.
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    \44\ See Attachment 4, page 1, footnote 2 of AF&PA's Comments to
Docket: EPA-HQ-RCRA-2008-0329-0871.
    \45\ Because the incoming feedstock may contain a number of
other materials, including metals, metals may also be recovered and
sent for recycling.
    \46\ Although we consider PRRs to be ``primarily'' composed of
unsuitable fibers, PRRs may also include small amounts of solids and
non-fiber packaging materials as described by the listing of
contaminants, when burned as fuel.
---------------------------------------------------------------------------

    Current data indicates that paper recycling mills generate between
450,000 and 600,000 tons of PRRs per year. Approximately 30 percent of
the PRRs (135,000 to 180,000 tons) generated are burned for their fuel
value at 15 to 20 different paper recycling mills.\47\ Although there
are over 100 paper recycling mills across the U.S., the majority of
mills' boilers use natural gas and cannot burn solid fuels. As a
result, PRRs generated in their processes generally are landfilled. At
any particular paper recycling mill capable of burning PRRs (i.e.,
their boilers burn solid fuel), between 55 to 100 percent of the PRRs
generated on-site are burned and may represent between 20 to 25 percent
of the total solid fuel burned in their solid fuel boilers. Of the 30
percent of PRRs burned as fuel, no more than 5 percent is burned off-
site.\48\ For the PRRs burned off-site, they appear to be used to
supplement other fuels burned at either a commercial cogeneration plant
\49\ or commercial biomass gasification plant.\50\
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    \47\ Generation, Management, and Processing of Paper Processing
Residuals. Industrial Economics Corporation, October 26, 2012.
    \48\ Generation, Management, and Processing of Paper Processing
Residuals. Industrial Economics Corporation, October 26, 2012. This
is posted within the docket for today's rulemaking (Docket: EPA-HQ-
RCRA-2013-0110).
    \49\ A cogeneration plant is one that generates electricity and
useful heat (instead of releasing it into the environment via
cooling towers, for example) for heating purposes either on-site or
for use nearby.
    \50\ National Council for Air and Stream Improvement, Inc.
Technical Bulletin (TB) No. 806, ``Beneficial Use of Secondary Fiber
Rejects,'' pp. 10-11. See attachment to AF&PA Comments to Docket,
August 3, 2010 (docket document ID number: EPA-HQ-RCRA-2008-0329-
0871).
---------------------------------------------------------------------------

    The Agency previously understood PRRs to be a term industry
commonly used to refer to Old Corrugated Container (OCC) rejects.\51\
Since publication of the March 2011 NHSM final rule and the December
23, 2011 proposal, however, the Agency has received comments more
appropriately identifying OCC rejects as a subset of the PRR universe.
Specifically, OCC rejects refers to only one grade of recovered fiber,
whereas PRRs encompass residuals from all types of fiber grades.
Therefore, in today's proposal, the Agency is including OCC rejects
within the broader PRR universe in a proposed categorical non-waste
determination.
---------------------------------------------------------------------------

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

2. OCC Rejects Under Current NHSM Rules
a. March 2011 NHSM Final Rule
    In the March 2011 NHSM final rule, EPA disagreed with those
commenters who argued that OCC rejects should be considered a
traditional or alternative fuel. On the other hand, we believed that
OCC rejects are not discarded when used within the control of the
generator, such as at pulp and paper mills, since these NHSMs are part
of the industrial process. In addition, we stated that the data
submitted during the comment period would seem to suggest that these
materials would or could meet the legitimacy criteria. For example, the
data indicated that the contaminant levels in these materials are
comparable to, if not less than, those in traditional fuels used at
pulp and paper mills. With respect to the meaningful heating value
criterion, we noted that, although the Btu value of OCC rejects, as
fired, is lower than 5,000 Btu/lb, it can still meet this criterion if
it can be demonstrated that the combustion unit can cost-effectively
recover energy from these materials. Last, the information submitted
also demonstrated that OCC rejects are managed as a valuable commodity
as they are managed in the same manner as the analogous fuel--bark (76
FR 15456, March 21, 2011 (pages 15486-7). Therefore, the Agency
generally concluded that OCC rejects burned as a fuel within the
control of the generator were not solid wastes.
b. February 2013 NHSM Final Rule
    Under the February 2013 final rule, we reiterated our belief that
paper recycling residuals (which include OCC rejects) are not discarded
when burned under the control of the generator, since these non-
hazardous secondary materials are part of the industrial process. Also,
since publication of the March 2011 final rule and during finalization
of the February 2013 final rule, we received additional information
regarding the cost effectiveness of PRRs used as a fuel, including the
amount of PRRs replacing traditional fuels at paper recycling mills and
percentages of residuals generated that are combusted as a fuel.\52\
Based upon the information received at that time, we stated that we
believed it supported the categorical listing of PRRs as a non-waste
fuel burned on-site. On the other hand, for PRRs transferred off-site
for use as a fuel, we requested information regarding how and where
they are burned and whether they are managed as a valuable commodity.
We also stated that if information is submitted that supports off-site
use as a fuel, the Agency may include those PRRs in a subsequent
rulemaking.\53\
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    \52\ Generation, Management, and Processing of Paper Processing
Residuals. Industrial Economics Corporation, October 26, 2012.
    \53\ 78 FR 9111, February 7, 2013 (page 9173).
---------------------------------------------------------------------------

3. Scope of Proposed Categorical Non-Waste Listing for PRRs
    PRRs generated during the paper recycling manufacturing process
vary in composition; however, the unsuitable fibers portion make up the
majority of residual material that is used as a fuel. Although PRRs are
generated at more than 100 paper recycling mills, only between 15 to 20
mills can burn them as a fuel because their boilers are designed to
burn solid fuels. The majority of paper recycling mills' cannot burn
solid fuels because their boilers are designed to burn natural gas, and
thus, usually send their PRRs to landfills.
    As stated in the preceding section, additional data and information
submitted to the Agency by the industry

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

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

    In the first step of the paper recycling manufacturing process,
bales of the incoming feedstock enter a pulper where the paper and
fiber are wetted and dispersed. A ``debris rope'' or ``ragger''
continuously withdraws strings, wires, and rags that could otherwise
damage the processing equipment. Recovered metals may be sold to metals
recovery facilities, but other materials removed by the ragger are
landfilled because they produce a heterogeneous mixture.
    In the second step of the paper recycling manufacturing process,
materials that remain in the pulper can either pass to a junk tower for
removal of heavy materials and continue to a drum screen for removal of
lighter materials; or go directly to coarse screens. For those
materials that go to the coarse screens, the resulting rejects may pass
through an air separator and/or a high efficiency cyclone, which
further removes materials based on size, shape and density, such as
plastic and unsuitable paper fibers (i.e., wet strength and short wood
fibers), which make-up the largest portion of PRRs destined for fuel
use. These PRRs may be consolidated with those generated from the junk
tower and drum screen, and sent across a dewatering screen or a screw
or ram press to improve both ease of handling and heating value.
    In the final step of the paper recycling manufacturing process, a
series of fine screens remove any remaining material that cannot be
used to make paper or paperboard products. These rejected materials
include unusable paper fiber fines, clays, starches, waxes and
adhesives, other filler and coating additives, and dyes and inks.
During this step, reject materials may either pass along to the
wastewater treatment system or become part of the PRR stream and used
as a fuel. For example, reject materials that are dispersed and small,
such as dyes and inks, waxes, and coating adhesives generated from
recovered magazines and other papers, will not be removed by fine
screens and therefore, enter the wastewater treatment system. In
contrast, light reject material generated from recovered corrugated
containers is captured in fine screens and can be used as a fuel.\55\
These PRRs would then be consolidated with the PRRs generated in the
preceding step before being conveyed to the combustion source where
they are blended with traditional fuels and fed to the combustor.
---------------------------------------------------------------------------

    \55\ AF&PA Technical Bulletin, Attachment 4, Recycling Process
Residuals, p 2. September 10, 2009.
---------------------------------------------------------------------------

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

general guideline of 5,000 Btu/lb, as fired,\58\ the Agency has
previously stated that flexibility exists for facilities with energy
recovery units that use NHSMs as fuels with an energy content lower
than 5,000 Btu/lb, as fired. In such cases, a person may demonstrate a
meaningful heating value is derived from the NHSM if the energy
recovery unit can cost-effectively recover meaningful energy from the
NHSM used as fuels. Factors that may be considered by the Agency in
determining that a combustion unit cost-effectively recovers energy
from NHSMs include, but are not limited to: whether the facility
encounters a cost savings due to not having to purchase significant
amounts of traditional fuels they otherwise would need; whether they
would purchase the NHSM to use as a fuel; whether the NHSM can self-
sustain combustion; and/or whether the operation produces energy that
is sold for a profit.\59\
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    \57\ See AF&PA Comments, p 62, to Docket document ID: EPA-HQ-
RCRA-2008-0329-0871.
    \58\ 76 FR 15522.
    \59\ 76 FR 15523.
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    While some of these specific factors are relevant with respect to
the combustion of PRRs,\60\ additional factors beyond those listed may
also demonstrate that a combustion unit can cost-effectively recover
energy. In the case of PRRs, we would note that the industry has argued
that paper recycling mills' boilers can cost effectively recover energy
from PRRs, because of the boiler design itself. Specifically, a trade
organization representing paper recycling mills has indicated that the
mills' solid fuel boilers are designed to burn wet fuels, with each
mill optimizing its operation around boiler design. Typical boilers
used include stoker fired and fluidized bed combustion, which often
have over-fire and/or under-grate air that assists in the efficient
burning of wetter fuels. This allows paper recycling mills to burn
clean cellulosic biomass fuels, such as hog fuel and bark, which is the
primary fuel, as well as PRRs, that have varying degrees of moisture
content. In fact, the industry has argued that if the material being
fed to the boiler is too dry, the combustion temperature can become too
hot, requiring operational adjustments. Consistently wet materials are
handled well in these boilers, leading to fewer temperature swings and
minimized boiler tuning adjustments. They also argue that PRRs are
analogous to the primary fuels--hog fuel and bark--used in solid fuel
boilers at paper recycling mills in that they both have high moisture
content, usually >40%, and can have Btu values below 5000 Btu/lb, as
fired. However, PRRs can also have Btu values higher than 5,000 Btu/lb,
depending upon the amount of moisture that has been removed (i.e.,
whether simply draining freely versus pressed), amount of solids, fiber
content, presence of non-fiber packing materials, and combustion
conditions necessary for the effective operation of the boilers.\61\
Therefore, based on all the available information, including the fact
that PRRs are primarily wood fibers, the Agency believes that PRRs
meets the meaningful heating value legitimacy criterion, and that they
are burned as a fuel to specifically recovery energy.
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    \60\ For example, the industry has provided information
indicating that: if they were to cease burning PRRs, replacement
fuel, such as biomass or coal would need to be purchased at a cost
of over $8 million and several boilers burning PRRs produce
electricity for on-site use, displacing the need to purchase
electricity from the local utility. See ``Supplemental Information
to Support the Listing of Paper Recycling Residuals (PRR) As a Non-
waste Fuel under section 241.1'' (December 12, 2012).
    \61\ See ``AF&PA-AWC Responses to EPA's Questions on PRR and
Railroad Ties (May 2013).''
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iii. Contaminants Comparable to or Lower Than Traditional Fuels
    For the third legitimacy criterion, we have conducted an expanded
(i.e., previous rules only considered OCC rejects) contaminant
comparison to capture data that is representative of all PRR fuel types
within EPA's Boiler MACT Database.\62\ See Table 2.
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    \62\ In response to the ANPRM, commenters submitted data for OCC
rejects, which generally indicated that OCC rejects would or could
meet the contaminant criterion.

          Table 2--Comparison of Contaminants in Paper Recycling Residuals (PRRs) and Traditional Fuels
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
          Contaminants \a\               Clean wood/biomass             Coal \b\                 PRRs c d
                                     ---------------------------------------------------------------------------
                                                                         Range
----------------------------------------------------------------------------------------------------------------
Group 1:
    Arsenic.........................  ND-298                    ND-174                   0-17.7
    Chromium........................  ND-340                    ND-168                   <0.17-26.9
    Lead............................  ND-340                    ND-148                   <0.10-21.1
    Mercury \e\.....................  ND-1.1                    ND-3.1                   ND-0.0724
    Chlorine........................  ND-5400                   ND-9,080                 <9.8-7310
    Sulfur..........................  ND-8700                   740-61,300               237-2500
Group 2:
    Antimony........................  ND-26                     ND-10                    0.07-0.9
    Beryllium.......................  ND-10                     ND-206                   0.005-0.329
    Cadmium.........................  ND-17                     ND-19                    0.03-7.1
    Cobalt..........................  ND-213                    ND-30                    1.05-1.99
    Manganese.......................  ND-15,800                 ND-512                   <0.10-21.1
    Nickel..........................  ND-540                    ND-730                   <0.27-25
    Selenium \f\....................  ND-9                      ND-74.3                  ND-3.29
    Fluorine \g\....................  ND-300                    ND-178                   <17-<26
----------------------------------------------------------------------------------------------------------------
\a\ All units expressed in parts per million (ppm) on a dry weight basis.
\b\ Coal and Biomass data taken from EPA document Contaminant Concentrations in Traditional Fuels: Tables for
  Comparison, November 29, 2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm. Refer to document
  for footnotes and sources of the data.
\c\ December 2011 boiler database--Boiler Reconsideration Proposal Databases: Emissions Database for Boilers and
  Process Heaters Containing Stack Test, CEM, & Fuel Analysis Data Reported under ICR No. 2286.01 & ICR No.
  2286.03 (version 7); http://epa.gov/ttn/atw/boiler/boilerpg.html. Data presented is for paper manufacturing
  facilities with NAICS code 322 and where fuel type indicates it refers to the repulped paper fibers
  that are used as fuels and include: ``Dewatered combustible residues,'' ``hydro pulper refuse,'' ``OCC
  rejects,'' ``recycle fiber lightweight rejects,'' and ``recycled fiber.''
\d\ CAA 112 Hazardous Air Pollutant (HAP) compounds (e.g., benzene, PAHs) data was not collected in this data
  set. HAP compounds may be present.

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

    We compared the contaminant concentrations of those constituents
found in Table 2 in PRRs to the levels found in coal and biomass, since
both of these traditional fuels can be burned in boilers at paper
recycling mills. Data indicate that PRRs meet the contaminant
legitimacy criterion. The only reported instance of PRRs containing a
contaminant at levels approaching the highest levels in coal and
biomass is a chlorine concentration at a mill burning OCC rejects.
However, the highest reported value for chlorine in PRRs was 7,310 ppm,
which is still below the highest reported value for chlorine in coal
(9,080 ppm). Therefore, the contaminant concentrations for these
contaminants are comparable to the traditional fuels that the boilers
are designed to burn.
    With regard to organic HAP present in PRRs, there does not appear
to be any data available on the concentration of these contaminants in
PRRs. Limited data has been published, however, on TCLP extracts of OCC
rejects that include several organic HAPs. With the exception of
toluene, which was found at trace levels ranging from <0.001 to 0.004
mg/L, no other HAP were detected in the TCLP extracts for OCC
rejects.\63\ For purposes of comparability, a total constituent
analysis for toluene would yield a concentration of up to 0.08 mg/L (or
0.08 ppm), assuming worst case conditions, which is well below the
concentration found in coal at 8.6-56 ppm.64 65 Likewise, we
would expect similar results from the broader universe of PRRs, since
the processing steps that generate PRRs would be equivalent to or more
than those that generate only OCC rejects (i.e., where the feedstock is
limited to OCCs), resulting in potentially fewer contaminants.
---------------------------------------------------------------------------

    \63\ National Council for Air and Stream Improvement, Inc.
Technical Bulletin (TB) No. 806, ``Beneficial Use of Secondary Fiber
Rejects,'' Appendix B, Table B1. TCLP Analysis of OCC Rejects. See
attachment to AF&PA Comments to Docket, August 3, 2010 (document ID
number; EPA-HQ-RCRA-2008-0329-0871).
    \64\ Section 1.2 of Method 1311 (Toxicity Characteristic
Leaching Procedure) allows for a total constituent analysis in lieu
of a TCLP analysis. That is, the Agency allows calculating a solid
phase's maximum theoretical concentration expected in a TCLP extract
by dividing a sample's total constituent concentration by 20,
representing 20:1 liquid-to-solid ratio (by weight) employed in the
TCLP procedure. See http://www.epa.gov/osw/hazard/testmethods/faq/faq_tclp.htm. While leaching extract concentrations do not reflect
total constituent concentrations, multiplying the extract
concentration (0.004 ppm) by 20 provides the minimum total
concentration in the waste. However, because toluene is somewhat
soluble in water (515 mg/L at 20[deg] C), the leaching extract
concentration multiplied by 20, is for this constituent, a
reasonable approximation of the total toluene concentration. Water
solubility data can be found at: http://www.epa.gov/chemfact/s_toluen.txt.
    \65\ Concentrations in Traditional Fuels: Tables for Comparison,
November 29, 2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm and in the docket (EPA-HQ-RCRA-2008-0329).
---------------------------------------------------------------------------

5. Summary and Request for Comment
    PRRs are generated from the recycling of recovered paper and
paperboard products, which consists of several processing steps. These
processing steps remove contaminants and sort PRRs by passing them
through a series of screens and cyclones, and increase their Btu value
in preparation for burning. This fuel product meets the legitimacy
criteria as described above. Based on current information, the Agency
believes that PRRs are a non-waste fuel, provided that such units are
located on-site and the boilers that are used are designed to burn
solid fuels. The Agency invites comment on this proposed categorical
non-waste determination, which would categorically list PRRs as a non-
waste fuel in section 241.4(a) and the following specific items:
    Meaningful Heating Value. We request comment on the meaningful
heating value determination, as well as information regarding the
percentages of non-fiber materials (e.g., polystyrene foam,
polyethylene film, other plastics, waxes and adhesives, dyes and inks,
clays, starches, and other filler and coating additives, etc.) that
typically make-up PRRs. This information may be useful in understanding
the variability of the PRR's heating value, since PRRs that contain a
larger portion of wood fibers could be expected to have a higher
heating value.
    Other discarded materials. In addition, although the data provided
in the boiler database regarding the level of contaminants in the PRRs
indicates that they meet the contaminant legitimacy criterion,
evaluations conducted for the development of the boiler database
suggested that, in a few cases, OCC rejects used as fuel on-site
contain other discarded materials. For example, some paper recycling
mills may accept cardboard containers from off-site that have not been
completely emptied of their contents or otherwise are contaminated with
foreign materials. The Agency is interested in receiving information
regarding how common this practice is, the composition of the contents/
materials, any precautions taken to ensure that the contents/materials
do not contribute to unacceptable contaminant concentrations, and
whether any additional conditions should be imposed to ensure that such
cardboard containers have been emptied. In other words, any remaining
contents/materials should only be incidental.
    PRRs burned off-site. Finally, the Agency is considering whether to
expand the categorical listing to include PRRs that are burned as a
fuel product off-site (i.e., in cases where the generating mill does
not have a boiler designed to burn solid fuels) at other paper
recycling mills and commercial power plants. According to earlier
comments submitted on subsequent NHSM rulemakings, OCC rejects have
been used as a supplemental fuel in two plants: A commercial biomass
gasification plant and a commercial cogeneration plant (where OCC
rejects provide 3 to 4 percent of the total fuel input at the latter
plant).\66\ An intermediary company takes the OCC rejects from three
mills and processes them by removing large pieces of plastic,
shredding, and drying the remaining residuals and delivers the OCC
reject fuel to the plants.\67\ Thus, contrary to what the Agency
previously concluded based on the information it had at the time of the
March 2011 final rule,\68\ it now appears that the OCC rejects burned
off-site in commercial power plants can be managed more like a non-
waste fuel than a waste fuel. While the information we have generally
indicates that these PRRs are managed much the same way as those

burned on-site, it is based on only two cases and lacks sufficient
detail to determine that PRRs when sent off-site for energy recovery
continue to meet the legitimacy criteria and are not discarded.
Therefore, we request additional information for PRRs that are burned
off-site which demonstrates how they: (1) Are managed as a valuable
commodity (from point of generation at the paper recycling mill to
insertion at the off-site combustor, to clearly show that discard is
not occurring); (2) have a meaningful heating value; (3) contain
contaminants at levels comparable to or lower than those in traditional
fuel(s) which the combustor is designed to burn; and (4) the types of
facilities that combust these PRRs.
---------------------------------------------------------------------------

    \66\ In the 2011 final NHSM rule, the agency previously believed
these facilities to be municipal or commercial incinerators (76 FR
15487). Subsequent comments have identified these facilities to be
commercial biomass and cogeneration plants.
    \67\ National Council for Air and Stream Improvement, Inc.
Technical Bulletin (TB) No. 806, ``Beneficial Use of Secondary Fiber
Rejects,'' pp. 10-11. See attachment to AF&PA Comments to Docket,
August 3, 2010 (document ID: EPA-HQ-RCRA-2008-0329-0871).
    \68\ The Agency had stated that limited information indicated
that OCC rejects are ``burned in municipal or commercial energy
facilities (which appear to be municipal or commercial incinerators)
and thus, would clearly indicate discard . . .'' 76 FR 15487.
---------------------------------------------------------------------------

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

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

1. Detailed Description of CTRTs
    Railroad ties are typically comprised of North American hardwoods
that have been treated with creosote. Creosote was introduced as a wood
preservative in the late 1800's to prolong the life of railroad ties.
Creosote-treated wood ties remain the material of choice by railroads
due to their long life, durability, cost effectiveness, and
sustainability. As creosote is a by-product of coal tar distillation,
and coal tar is a by-product of making coke from coal, creosote is
considered a derivative of coal. The creosote component of CTRTs is
also governed by the standards established by the American Wood
Protection Association (AWPA). AWPA has established two blends of
creosote, P1/13 and P2.\70\ Railroad ties are typically manufactured
using the P2 blend that is more viscous than other blends.
---------------------------------------------------------------------------

    \70\ AWPA Standard P1/P13 and P2 provide specifications for
coal-tar creosote used for preservative treatment of piles, poles
and timber for marine, land and freshwater use. The character of the
tar used, the method of distillation, and the temperature range in
which the creosote fraction is collected all influence the
composition of the creosote, and the composition may vary with the
requirement of standard specifications. April 2010. Forest Products
Laboratory. 2010 Wood Handbook. General Technical Report FPL--GTR-
190. Madison, WI.
---------------------------------------------------------------------------

    Under today's proposed rule, CTRTs are railroad crossties removed
from service and processed prior to being used as a fuel. Approximately
17 million crossties are removed from service each year. About one
third of the removed CTRTs are used for landscaping, with the majority
of the remaining two thirds used for energy recovery. Because of its
high energy content, CTRTs can be used for heat and energy recovery in
combustion units as a nonhazardous biomass alternative to fossil
fuel.\71\
---------------------------------------------------------------------------

    \71\ American Forest & Paper Association, American Wood
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------

    Most of the energy recovery with crossties is conducted through
three parties: The generator of the crossties (railroad or utility);
the reclamation company that sorts the crossties, and in some cases
processes the material received from the generator; \72\ and the
combustor as third party energy producers. Typically, ownership of the
crossties are generally transferred directly from the generator to the
reclamation company that sorts materials for highest value secondary
uses, and then sells the products to end-users, including those
combusting the material as fuel. Some reclamation companies sell CTRTs
to processors who remove metal contaminants and grind the ties into
chipped wood. Other reclamation companies have their own grinders, do
their own contaminant removal, and can sell directly to the combusting
facilities. Information submitted to the Agency indicates there are
approximately 15 CTRT recovery companies in North America with industry
wide revenues of $65-75 million. Members of AF&PA report that the value
of CTRTs is underscored by the approximately $20--$30 per ton paid for
CTRTs which can sometimes be a premium price compared to certain hog
fuels (untreated clean wood residues from sawmills).\73\
---------------------------------------------------------------------------

    \72\ In some cases, the reclamation company sells the crossties
to a separate company for processing.
    \73\ American Forest & Paper Association, American Wood
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------

    After crossties are removed from service, they are transferred for
sorting/processing, but in some cases, they may be temporarily stored
in the railroad rights-of-way or at another location selected by the
reclamation company. One information source indicated that when the
crossties are temporarily stored, they are stored until their value as
an alternative fuel can be realized, generally through a contract
completed for transferal of ownership to the reclamation contractor or
combustor.\74\ This means that not all CTRTs originate from crossties