removed from service in the same year; some CTRTs are processed from
crossties removed from service in prior years and stored by railroads
or removal/reclamation companies until their value as a landscaping
element or fuel could be realized.
---------------------------------------------------------------------------

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

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

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

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

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

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

b. February 2013 NHSM Final Rule
    In the February, 2013 NHSM final rule, EPA noted that AF&PA and the
American Wood Council submitted a letter with supporting information on
December 6, 2012, seeking a categorical listing for all railroad ties
combusted in any unit.\77\ The letter included information regarding
the amounts of railroad ties combusted each year and the value of the
ties as fuel. The letter also discussed how CTRTs satisfy the
legitimacy criteria, including its high Btu value.
---------------------------------------------------------------------------

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

    While this information was useful, it was not sufficient for EPA to
propose that CTRTs be listed categorically as a non-waste fuel.
Therefore, to further inform the Agency as to whether to list CTRTs
categorically as a non-waste fuel, EPA requested that additional
information be provided, and indicated that if this additional
information supported and supplemented the representations made in the
December 2012 letter, EPA would expect to propose a categorical listing
for CTRTs. The requested information and responses provided are as
follows:
     A list of industry sectors, in addition to forest product
mills, that burn railroad ties for energy recovery: One respondent
claimed that a number of end-use combustors utilize CTRTs as an
alternative fuel to offset fossil fuel at all times. Such facilities
use as much as 100-500 tons of CTRTs daily. The respondent also claimed
to know of additional end-use combustors that utilize CTRTs
occasionally based on availability and cost. Furthermore, the
respondent was aware of other end-use combustors that are operationally
able to utilize CTRTs as an alternative fuel to offset fossil fuel, but
have chosen not to use CTRTs as a result of the current solid-waste
implications associated with CTRTs. The end-use combustors that
currently utilize CTRTs, both full-time and part-time, represent a
variety of industry sectors, including pulp and paper manufacturing,
cogeneration plants, utilities, and chemical manufacturing facilities.
For the utility sector, at least 14 utilities could burn (i.e. are
permitted to burn) or are burning CTRT.\78\ Another respondent claimed
that data \79\ show that a number of forest product mills are currently
using railroad ties as a fuel and that other mills are permitted to
burn these materials as fuels, but have stopped using them as a fuel
due to their uncertain regulatory status, as well as other economic
factors (e.g. lower cost of other fuels).
---------------------------------------------------------------------------

    \78\ Information received subsequent to the request for data in
the February 13, 2013 rule discussed above claims that 14 entities
in the utility sector could burn (i.e. are permitted to burn) or are
burning cross-tie derived fuel (i.e. CTRT). Of the 14 entities, 9
companies are currently firing or have fired CTRT within the past
two years. Information on pulp and paper and utility sources
currently utilizing CTRT indicates that several of these sources use
between 5,000 and 70,000 tons of CTRT per year. Information compiled
by M.A. Energy LLC. (MAER) contained in letters and emails from All4
Inc. to EPA dated January 29, and February 28, 2014.
    \79\ American Forest and Paper Association and American Wood
Council's letter to George Faison, EPA. March 7, 2013.
---------------------------------------------------------------------------

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

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

     The traditional fuels and relative amounts (e.g., startup,
30%, 100%) of these traditional fuels that could otherwise generally be
burned in these types of units:
    Respondents also claim that units operated by end-use combustors
that utilize CTRTs as an alternative fuel typically burn a variety of
``traditional fuels,'' such as coal, biomass (i.e., hog fuel, bark
fuel, and other biomass fuel materials), and fuel oil, as well as other
materials and wastes, such as tire derived fuel, waste derived liquid
fuel, and waste derived solid fuel.81 82 In general, they
claim that all of the units that burn CTRTs also burn significant
quantities of biomass given the similarity of the fuels'
characteristics. In addition, they claim that most of these units are
permitted to burn fuel oil either during start-up or during normal
operations. The respondents claim that many factors determine how much
fuel oil is burned. For example, because natural gas prices are low,
natural gas is often the fuel of choice, if available. In addition,
they claim that some states are looking to reduce SO2
emissions from sources and thus, encourage greater use of biomass or
natural gas rather than fuel oil.\83\
    Respondents claim that the most comparable traditional fuel to
railroad ties is fuel oil. However, they believe the question of
whether a combustion unit is designed to burn a specific fuel is not
relevant when EPA makes a determination under section 241.4(a).
Specifically, the respondents claim that the EPA has interpreted the
phrase ``designed to burn'' to mean that a combustor that burns NHSMs
as a non-waste fuel has to be able to burn the NHSM in the combustion
unit, which in the case of CTRTs, would require the installation of a
nozzle for the delivery of liquid fuel into the boiler, to meet the
contaminant legitimacy criterion EPA explained that this standard is to
avoid the possibility that discard could be occurring in some
situations.\84\ However, in the context of a specific non-waste
determination under section 241.4(a), the respondents argue that EPA
has the opportunity to evaluate all the

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

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

     The extent to which non-industrial boilers (e.g.
commercial or residential boilers) burn CTRTs for energy recovery:
    The respondent understands that the residential use of CTRTs for
purposes of energy recovery is unlikely. However, they explained that
several local utilities in the northern Midwest utilize CTRTs for
purposes of power generation but they have not identified the specific
facilities.
     Laboratory analyses for contaminants known or reasonably
suspected to be present in creosote-treated railroad ties, and
contaminants known to be significant components of creosote,
specifically polycyclic aromatic hydrocarbons (i.e., PAH-16),
dibenzofuran, cresols, hexachlorobenzene, 2,4-dinitrotoluene, biphenyl,
quinoline, and dioxins: \85\
---------------------------------------------------------------------------

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

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

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

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

    \91\ As discussed in the NHSM final rule (76 FR 15520),
``reasonable time frame'' is not specifically defined as such time
frames vary among the large number of non-hazardous secondary
materials and industries involved.
---------------------------------------------------------------------------

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

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

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

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

    \93\ Prior to the CTRTs being processed as a product fuel, the
CTRTs are considered solid wastes and would be subject to
appropriate federal, state, and local requirements.
---------------------------------------------------------------------------

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

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

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

                            Table 3--Contaminant Ranges in Traditional Fuels and CTRT
                                             [In parts per million]
----------------------------------------------------------------------------------------------------------------
                           Contaminant                              Biomass \a\    Fuel Oil \a\       CTRT\b\
----------------------------------------------------------------------------------------------------------------
Metal Elements:
    Antimony (Sb)...............................................           ND-26         ND-15.7              ND
    Arsenic (As)................................................          ND-298           ND-13          ND-3.2
                                                                                ND
    Beryllium (Be)..............................................           ND-10           ND-19          ND-0.3
    Cadmium (Cd)................................................           ND-17          ND-1.4          ND-0.3

    Chromium (Cr)...............................................          ND-340           ND-37         ND-15.3
    Cobalt (Co).................................................          ND-213          ND-8.5              ND
    Lead (Pb)...................................................          ND-340         ND-56.8          ND-9.6
    Manganese (Mn)..............................................       ND-15,800        ND-3,200          63-185
    Mercury (Hg)................................................          ND-1.1          ND-0.2       0.02-0.05
    Nickel (Ni).................................................          ND-540          ND-270           ND-38
    Selenium (Se)...............................................            ND-9            ND-4            ND-1
Non-Metal
    Chlorine (Cl)...............................................        ND-5,400        ND-1,260          22-400
    Fluorine (F)................................................          ND-300           ND-14             100
    Nitrogen (N)................................................      200-39,500        42-8,950    1,600-14,400
    Sulfur (S)..................................................        ND-8,700       ND-57,000       681-3,277
Volatile Organic
    Benzene.....................................................  ..............           ND-75              ND
    Phenol......................................................  ..............        ND-7,700              ND
    Styrene.....................................................  ..............          ND-320              ND
    Toluene.....................................................  ..............          ND-380              ND
    Xylenes.....................................................  ..............        ND-3,100           0.325
    Cumene......................................................  ..............     6,000-8,600              ND
    Ethyl benzene...............................................  ..............         22-1270           0.058
    Formaldehyde................................................          1.6-27  ..............              ND
    Hexane......................................................  ..............       50-10,000              ND
    15 Additional VOC...........................................  ..............  ..............              ND
                                                                 -----------------------------------------------
        Total VOC \c\...........................................          1.6-27    6,072-19,810           0.383
Semivolatile:
    Biphenyl....................................................  ..............     1,000-1,200         137-330
    16-PAH \d\..................................................  ..............    3,900-54,700     6641-21,053
    Dibenzofuran................................................  ..............  ..............       570-1,500
    Quinoline...................................................  ..............  ..............            40.2
    Cresols.....................................................  ..............  ..............            1.51
    Hexachlorobenzene...........................................  ..............              ND              ND
    2,4-dinitrotoluene..........................................  ..............              ND              ND
    Lindane.....................................................  ..............  ..............           0.238
    11 Additional...............................................  ..............  ..............              ND
                                                                 -----------------------------------------------
        Total SVOC \c\..........................................  ..............    4,900-54,700    7,618-22,883
----------------------------------------------------------------------------------------------------------------
\a\ ``Contaminant Concentrations in Traditional Fuels: Tables for Comparison'' document available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature
  sources and from data submitted to USEPA, Office of Air Quality Planning and Standards (OAQPS).
\b\ (1) MA Energy Resources, LLC. February 2013 Crosstie Derived Fuel Petition; (2) URS, Evaluation of Used
  Railroad Ties Treated with Creosote. Prepared for Association of American Railroads. January 28, 2013; (3)
  AF&PA, Comparison of Contaminant Concentrations in Crosstie Derived Fuel with Traditional Fuels. February 28,
  2013.
\c\ Total VOC and SVOC ranges do not represent a simple sum of the minimum and maximum values for each
  contaminant. This is because minimum and maximum concentrations for individual VOCs and SVOCs do not always
  come from the same sample.
\d\ 16-PAH includes: acenaphthene, acenaphthylene, anthracene, benz(a)anthracene, benzo(a)pyrene,
  benzo(b)fluoranthene, benzo(g,h,i)perylene, benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene,
  fluoranthene, fluorene, indeno(1,2,3-cd)pyrene, naphthalene, phenanthrene, and pyrene.

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

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

    In the first scenario, where a combustion unit is designed to only
burn biomass, EPA compared contaminant levels in CTRT to contaminant
levels in biomass. In this scenario, the total SVOC levels can reach
22,883 ppm, driven by high levels of polycyclic aromatic hydrocarbons
(PAHs) and, to a lesser extent, the levels of dibenzofuran and
biphenyl.\97\ These compounds are largely nonexistent in clean wood and
biomass, and the contaminants are therefore not comparable in this
instance. In fact, they are present at orders of magnitude higher than
found in clean wood and biomass.
---------------------------------------------------------------------------

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

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

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

    Additional information was submitted by petitioners subsequent to
this claim, however.\100\ The new information indicates that while
stoker, bubbling bed or fluidized bed boilers at major source \101\
paper mills are currently designed to combust both fuel oil and CTRTs,
few, if any, of these units may be combusting both fuel oil and biomass
in the future since those units will be switching from fuel oil to
natural gas for start-up periods and operations. The petitioners
indicated that continued use of fuel oil during operation would result
in higher compliance costs and higher costs per Btu. Petitioners stated
that the switch to natural gas for operation requires replacement of
start-up fuel systems, and that the most efficient and least emitting
start-up systems use specialized burners for gas.
---------------------------------------------------------------------------

    \100\ E.O. 12866 meeting between Office of Management and Budget
and American Forest and Paper Association--September 20, 2013.
Meeting between American Forest and Paper Association and Mathy
Stanislaus, December 19, 2013. Handouts from the meeting can be
found in the docket for today's rule.
    \101\ Section 112(a)(1) of the CAA defines the term ``major
source'' to mean any stationary source or group of stationary
sources located within a contiguous area that emit or have the
potential to emit in the aggregate, 10 tons per year or more of any
hazardous air pollutant or 25 tons per year or more of any
combination of hazardous air pollutants.
---------------------------------------------------------------------------

    We note that EPA collected information from owners and operators of
combustion units across a wide variety of industries in its development
of emissions standards for boilers and process heaters under section
112 of the Clean Air Act. In that context, based on the information
submitted by industry (including petitioners and others), EPA concluded
that units that combust solid fuels generally used fuel oil or natural
gas only as a startup fuel. EPA concluded that changing the fuel type
in such units would generally require extensive changes to the fuel
handling and feeding system, as well as modification to the burners and
combustion chambers. 75 FR 32006, 32017. For these reasons, EPA treated
these units as units designed to combust solid fuels (including
biomass). Further, the information submitted for the ICR indicated that
some biomass units may combust fuel oil at other times, for example,
for transient flame stability purposes if they are combusting biomass
with a high moisture content. However, the ICR did not indicate the
amount of fuel oil being combusted, or whether fuel oil was combusted
alone or in conjunction with solid fuel, such as biomass. Therefore, at
the time of the development of the boiler MACT, EPA did not have any
information, including information submitted in response to the ICR,
indicating there are units designed to burn solid fuel which commonly
switch between combusting biomass and fuel oil or otherwise combusted
fuel oil as part of normal operation.
    Information related to dibenzofurans and dioxins. As discussed
above, the Agency requested data on dibenzofuran and dioxins, in large
part because dibenzofuran is known to be present in CTRTs and listed as
a HAP under CAA section 112 and dioxins are a pollutant under CAA
sections 112 and 129.
    Petitioners submitted an explanatory document in response to the
Agency's request.\102\ The document provided additional information
regarding (a) the presence of dibenzofuran in creosote and creosote-
treated wood, and (b) whether the presence of dibenzofuran can indicate
the concurrent presence of the polychlorinated versions of these
compounds, viz., polychlorinated dibenzo p-dioxins and dibenzofurans
(PCDD/F--often collectively termed dioxins).
---------------------------------------------------------------------------

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

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

the petitioners, this compound should not be confused with dioxins or
furans, which refers to a larger group of polychlorinated dibenzofurans
and dibenzodioxins.
    The Agency agrees with the petitioners explanation that
dibenzofuran present in the CTRTs should not result in the formation of
dioxins, but as a HAP itself, dibenzofuran is still appropriate to
include in the list of SVOCs for comparison to traditional fuels.\103\
Regarding dioxins, the document indicted that dioxins should not be
present in the material. The Agency agrees that the level of chlorine
during creosote production is not sufficient to form dioxins in coal
tar creosote and therefore dioxin should not be present in CTRTs prior
to combustion.
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    \103\ When making contaminant comparisons for purposes of
meeting the legitimacy criterion, the Agency allows grouping of
contaminants. For example, under the grouping concept, individual
SVOC levels may be elevated above that of the traditional fuel, but
the contaminant legitimacy criterion will be met as long as total
SVOCs is comparable to or less than that of the traditional fuel.
Such an approach is standard practice employed by the Agency in
developing regulations and is consistent with monitoring standards
under CAA sections 112 and 129. See 78 FR 9146 for further
information.
---------------------------------------------------------------------------

    As discussed previously, the March 2011 NHSM final rule noting the
presence of hexachlorobenzene and dinitrotoluene, suggested that
creosote-treated lumber include contaminants at levels that are not
comparable to those found in wood or coal, the fuel that creosote-
treated wood would replace, and would thus be considered solid wastes.
Today's proposed rule differs in several respects from the conclusions
in the March 2011 rule. Today's proposal concludes that CTRTs are a
categorical non-waste when combusted in units designed to burn both
fuel oil and biomass. The March 2011 rule, using 1990 data on railroad
cross ties, was based on contaminant comparisons to coal and biomass
and not fuel oil. As discussed above, when compared to fuel oil, total
SVOC contaminant concentrations (which would include dinitrotoluene and
hexachlorobenzene) in CTRTs would be less that those found in fuel oil,
and in fact, the 2012 data referenced in today's proposal showed non-
detects for those two contaminants.
c. Other Relevant Factors in a Categorical Non-Waste Determination for
CTRT
    In their request for a categorical listing of CTRTs and in
background information submitted subsequent to that request,
petitioners argue that, in the context of a specific non-waste
determination under Sec.  241.4(a), the Agency can balance the
legitimacy criteria against other relevant factors in any decision to
list an NHSM categorically. See 40 CFR 241.4(b)(5). Specifically, the
petitioners argue that the phrase ``designed to burn'' can be another
relevant factor that the Agency can consider in making a decision on
listing CTRTs categorically as a non-waste fuel. They argue that by
conducting such balancing, the Agency could allow CTRTs to be burned as
a non-waste fuel in any combustion unit that can combust biomass,
whether or not the combustion unit is designed to burn fuel oil. Thus,
the petitioners request that the Agency re-define or ignore the
``design to burn'' concept, as currently interpreted for the purposes
of this categorical listing.
    In arguing that the Agency can re-define or ignore the ``design to
burn'' concept, petitioners identified additional relevant factors to
be considered in a categorical listing for CTRTs. Specifically:
     CTRTs are functionally the same as other comparable
traditional fuels, such as fossil fuels used in a fuel mix to maintain
an appropriate BTU level for the biomass boilers., combusted in the
same units and subject to the same air pollution
controls.104 105
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    \104\ Petitioner arguments regarding functional equivalence and
use of CTRT as a commodity are also outlined in Legal Analysis
Supporting Listing Railroad Tie Fuel as a Nonwaste under Sec.
241.4(a)(January 15, 2014.) American Forest and Paper Association.
    \105\ To further support a finding of functional equivalency,
petitioners submitted data claiming that stack emissions of PAHs
(PAHs are higher in railroad ties than in coal or biomass), are
controlled in the same way as all organic constituents present in
the other fuels used by the boilers that combust railroad tie fuel.
The Air Emissions Impact of Burning Railroad Tie-Derived Fuel.
NCASI, January 2014.
---------------------------------------------------------------------------

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

    \106\ Petitioners also argued in their December 19, 2013
background material that high PAH levels in fuels are not related to
PAH emission levels. They indicated that Boiler MACT carbon monoxide
(CO) limits ensure good combustion practices by minimizing PAHs and
other products of incomplete combustion (under the Boiler MACT
standards, CO is a surrogate for organic HAPs such as PAHs.) Dry
fuels such as CTRT increase heat value of the fuel mix improving
combustion temperature and conditions.
---------------------------------------------------------------------------

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

contaminant levels in biomass, the traditional fuel the units
combusting CTRT are designed to burn. As discussed, there is a limit to
the levels of such contamination allowed in balancing other relevant
factors and elevated levels of contaminants remaining in the material
can indicate that the material is being discarded. Further, all CTRTs
are not functionally the same as comparable traditional fuels since it
must be processed by reclamation companies to remove metals (spikes,
nails etc) and shredded into chips to make it suitable as a fuel
source.
    We also do not agree that CTRTs are integral to the production
process. In a previous categorical determination for resinated wood,
the Agency did conclude that the material was integrated into the
production process and was thus a categorical non-waste (78 FR 9155).
The Agency based that conclusion on information indicating that
resinated wood production facilities were specifically designed to
utilize that material for their fuel value, and the plants could not
operate as designed without the use of resinated wood. Similar
information was not received for CTRTs.
    Nevertheless, we agree with petitioners that the removal of oil
delivery mechanisms from units designed to combust fuel oil and CTRT is
not necessarily an indication that the material is being ``discarded.''
As discussed above, units designed to combust both fuel oil and CTRT,
including stoker, bubbling bed and fluidized bed boilers, are switching
from fuel oil in order to combust natural gas. Boilers that have burned
fuel oil currently or in the past will discontinue using fuel oil but
have demonstrated the ability to burn that material.
5. Summary and Request for Comment
    EPA believes it has sufficient information to list CTRTs
categorically as a non-waste fuel in combustion units that are designed
to burn both biomass and fuel oil. We would like to make clear that the
Agency would consider units to meet this requirement if the unit
combusts fuel oil as part of normal operations and not solely as part
of start up or shut down operations.
    At the same time, the Agency is considering an approach (based on
the information described above) that would include as a categorical
non-waste, CTRTs that are: (1) Combusted as part of normal operations
in existing units that are designed to burn both CTRTs and fuel oil;
and, (2) combusted in units at major source pulp and paper mills that
are being modified in order to use clean fuel, such as natural gas
instead of fuel oil. The Agency does not believe that combustion of
CTRTs in boiler units that are currently designed to burn both biomass
and fuel oil but are changing (i.e. removing oil delivery equipment) in
order to burn natural gas should be considered discard. Information
indicating that CTRTs are an important part of the fuel mix due to the
consistently lower moisture content and higher Btu value, as well as
the benefits of drier more consistent fuel to combustion units with
significant swings in steam demand, further suggest that discard is not
occurring. \107\
---------------------------------------------------------------------------

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

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

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

     The boiler that burned the CTRTs must have been designed
to burn both fuel oil and biomass; and
     The boiler is modifying its design to also burn natural
gas.
    The Agency emphasizes that the approach described above is meant to
address only the current circumstance where contaminants in CTRTs are
comparable to or less than the traditional fuels the unit was designed
to burn (both fuel oil and biomass) but that design is modified in
order to combust natural gas. The approach is not a general means to
circumvent the contaminant legitimacy criterion by allowing combustion
of any NHSM with elevated contaminant levels, i.e. levels not
comparable to the traditional fuel the unit is currently designed to
burn.
    The particular facilities in this case have used CTRTs and would
clearly be in compliance with the legitimacy criteria if they do not
switch to the cleaner natural gas fuel. EPA believes it is appropriate
to balance other relevant factors in this categorical non-waste
determination and that it is appropriate for the Agency to decide that
the switching to the cleaner natural gas \109\ would not render the
CTRTs a waste fuel in view of the historical usage which would be a
product fuel in the stoker, bubbling bed and fluidized bed boilers. The
nature of the CTRTs as a product fuel does not make it a waste on
switching to the cleaner natural gas for the boiler.
---------------------------------------------------------------------------

    \109\ The Agency recognizes natural gas as a source of clean
energy. The burning of natural gas produces nitrogen oxides and
carbon dioxide, but in lower quantities than burning coal or oil.
Methane, a primary component of natural gas and a greenhouse gas,
can also be emitted into the air when natural gas is not burned
completely. Similarly, methane can be emitted as the result of leaks
and losses during transportation. Emissions of sulfur dioxide and
mercury compounds from burning natural gas are negligible. (see
http://www.epa.gov/cleanenergy/energy-and-you/affect/natural-gas.html)
---------------------------------------------------------------------------

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

VI. Technical Corrections

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

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

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

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

    The description of the petition process identified in 40 CFR
241.3(c)(1) contains a typographical error. Specifically, the last
sentence of the 40 CFR 241.3(c)(1) regulatory text from the February
2013 final rule states the determination will be based on whether the
non-hazardous secondary material that has been discarded is a
legitimate fuel as specified in paragraph (d)(1) of the section and on
the following criteria.
    However, the intent of this sentence is to say that the
determination is based on ``whether it has or has not been discarded''
in addition to other factors. Therefore, we are proposing to amend the
regulatory text in this proposed rule to add a ``not'' before ``been
discarded'' and remove ``that'' after ``non-hazardous secondary
material.''

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

    The Agency is also making a technical correction to 40 CFR
241.3(d)(1)(iii) to clarify that the provision applies to combustion
units (not just boilers). Specifically, that section of the rule
identifies the legitimacy criteria for non-hazardous secondary
materials relating to contaminant comparisons between the traditional
fuel(s) a unit is designed to burn and the NHSM. It states that a
person may choose a traditional fuel that can be burned in any type of
boiler (emphasis added), whereas the rest of the sentence refers to the
combustion unit. Like a boiler, a cement kiln that combusts any non-
hazardous solid waste is subject to regulation as a Commercial or
Industrial Solid Waste Incineration (CISWI) unit pursuant to section
129(g)(1) of the CAA. In order for a cement kiln not to be classified
as a CISWI unit, it must use a fuel that is/has been determined to be a
non-waste fuel under 40 CFR part 241 when combusted. Consistent with
the section as a whole, the word ``boiler'' is replaced with
``combustion unit'' to clarify that a person may choose a traditional
fuel that can be or is burned in a combustion unit, which can be a
cement kiln, as well as a boiler.

VII. Effect of Today's Proposal on Other Programs

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

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

VIII. State Authority

A. Relationship to State Programs

    This proposal does not change the relationship to state programs as
described in the March 2011 NHSM final rule. Refer to Section IX of the
March 2011 NHSM final rule \111\ for the discussion on state authority
including, ``Applicability of State Solid Waste Definitions and
Beneficial Use Determinations'' and ``Clarifications on the
Relationship to State Programs.'' The Agency, however, would like to
reiterate that this proposed rule (like the March 2011 and the February
2013 final rules) is not intended to interfere with a state's program
authority over the general management of solid waste.
---------------------------------------------------------------------------

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

B. State Adoption of the Rulemaking

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

IX. Cost and Benefits

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

    \112\ Excluding minor administrative burden/cost (e.g. rule
familiarization).
---------------------------------------------------------------------------

    Because this RCRA action is definitional only, any costs or
benefits indirectly associated with this action would not occur without
the corresponding implementation of the relevant CAA rules. However, in
an effort to ensure rulemaking transparency, we have prepared an
assessment in support of this action that examines the potential scope
and direction of these indirect impacts, for both costs and
benefits.\113\ This document is available in the docket for review and
comment. Finally, we recognize that this action would indirectly affect
various materials management programs and policies, and we are
sensitive to these concerns. The Agency encourages comment on these
effects.
---------------------------------------------------------------------------

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

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

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

X. Statutory and Executive Order Reviews

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

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

 B. Paperwork Reduction Act

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

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

    The preparation of the certification statement and the need to
maintain certification status is the responsibility of the processor.
The combustor also would be required to maintain the certification
statement on file; however, there is already an existing requirement
for combustors to maintain records that show how they are in compliance
with the 40 CFR 241.3 and 241.4 requirements. Thus, the requirement to
maintain the certification statement provided by the processor would
simply be in place of records that would need to be maintained for
processed C&D wood, absent a categorical non-waste fuel determination.
OMB has previously approved the information collection requirements
contained in the existing NHSM regulation at 40 CFR part 241 under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2050-0205.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2013-0110. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after April 14, 2014, a comment to OMB is best assured of having its
full effect if OMB receives it by May 14, 2014. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.

C. Regulatory Flexibility Act

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

D. Unfunded Mandates Reform Act

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

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

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This proposed rule will not impose
direct compliance costs on state or local governments and will not
preempt state law. Thus, Executive Order 13132 does not apply to this
action.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed action
from State and local officials.

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

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

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

    This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
12866, and because the Agency does not believe the environmental health
or safety risks addressed by this action present a disproportionate
risk to children. Based on the discussion below, the Agency found that
the populations of children near potentially affected boilers are
either not significantly greater than national averages, or in the case
of landfills, may potentially result in reduced discharges near such
populations.
    The proposed rule, in conjunction with the corresponding CAA rules,
may indirectly stimulate the increased fuel use of one or more of the
three NHSMs by providing enhanced regulatory clarity and certainty.
This increased fuel use may result in the diversion of a certain
quantity of these NHSMs away from current baseline management
practices. Any corresponding disproportionate impacts among children
would depend upon whether children make up a disproportionate share of
the population living near the affected units. Therefore, to assess the
potential an indirect disproportionate effect on children, we conducted
a demographic analysis for this population group surrounding CAA
section 112 major source boilers, municipal solid waste landfills, and
construction and demolition (C&D) landfills for the Major and Area
Source Boilers rules and the CISWI rule.\115\ We assessed the share of
the population under the age of 18 living within a three-mile
(approximately five kilometers) radius of these facilities.
---------------------------------------------------------------------------

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

    For major source boilers, our findings indicate that the percentage
of the population in these areas under age 18 years is generally the
same as the national average.\116\ In addition, while the fuel source
and corresponding emission mix for some of these boilers may change as
an indirect response to this rule, emissions from these sources would
remain subject to the protective CAA section 112 standards. For
municipal solid waste and C&D landfills, we do not have demographic
results specific to children. However, using the population below the
poverty level as a rough surrogate for children, we found that within
three miles of facilities that may experience diversions of one or more
of these NHSMs, low-income populations, as a percent of the total
population, are disproportionately high relative to the national
average. Thus, to the extent that these NHSMs are diverted away from
municipal solid waste or C&D landfills, any landfill-related emissions,
discharges, or other negative activity potentially affecting low-income
(children) populations living near these units are likely to be
reduced. Finally, transportation emissions associated with the
diversion of some of this material away from landfills to boilers are
likely to be generally unchanged, while these emissions are likely to
be reduced for on-site generators of paper recycling residuals that
would reduce off-site shipments.
---------------------------------------------------------------------------

    \116\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
---------------------------------------------------------------------------

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

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

I. National Technology Transfer and Advancement Act

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

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

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

    Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has concluded that it is not practicable to determine whether
there would be disproportionately high and adverse human health or
environmental effects on minority and/or low-income populations from
this proposed rule. However, the overall level of emissions, or the
emissions mix from affected boilers are not expected to change
significantly because the three NHSMs proposed to be categorically
listed as non-waste fuels are generally comparable to the types of
fuels that these combustors would otherwise burn. Furthermore, these
units remain subject to the protective standards established under CAA
Section 112.
    Our environmental justice demographics assessment conducted for the
prior rulemaking \117\ remains relevant to this action. This assessment
reviewed the distributions of minority and low-income groups living
near potentially affected sources using U.S. Census blocks. A three-
mile radius (approximately five kilometers) was examined in order to
determine the demographic composition (e.g., race, income, etc.) of
these blocks for comparison to the corresponding national compositions.
Findings from this analysis indicated that populations living within
three miles of major source boilers represent areas with minority and
low-income populations that are higher than the national averages. In
these areas, the minority share \118\ of the population was 33 percent,
compared to the national average of 25 percent. For these same areas,
the percent of the population below the poverty line (16 percent) was
higher than the national average (13 percent).
---------------------------------------------------------------------------

    \117\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
    \118\ This figure is for overall population minus white
population and does not include the Census group defined as ``White
Hispanic.''
---------------------------------------------------------------------------

    In addition to the demographics assessment described above, we also
considered the potential for non-combustion environmental justice
concerns related to the potential incremental increase in NHSMs
diversions from current baseline management practices. These may
include the following:
     Reduced upstream emissions resulting from the reduced
production of virgin fuel: Any reduced upstream emissions that may
occur in response to reduced virgin fuel mining or extraction may
result in a human health and/or environmental benefit to minority and
low-income populations living near these projects.
     Alternative materials transport patterns: Transportation
emissions associated with NHSMs diverted from landfills to boilers are
likely to be similar, except for on-site paper recycling residuals,
where the potential for less off-site transport to landfills may result
in reduced truck traffic and emissions where such transport patterns
may pass through minority or low-income communities.
     Change in emissions from baseline management units: The
diversion of some of these NHSMs away from disposal in landfills may
result in a marginal decrease in activity at or near these facilities.
This may include non-adverse impacts, such as marginally reduced
emissions, odors, groundwater and surface water impacts, noise
pollution, and reduced maintenance cost to local infrastructure.
Because municipal solid waste and C&D landfills were found to be
located in areas where minority and low-income populations are
disproportionately high relative to the national average, any reduction
in activity and emissions around these facilities is likely to benefit
(even if only marginally) the citizens living near these facilities.
    Finally, this rule may help to accelerate the abatement of any
existing stockpiles of these NHSM materials. To the extent that these
stockpiles may have negative human health or environmental
implications, minority and/or low-income populations that live near
such stockpiles may experience marginal health or environmental
improvements. Aesthetics may also be improved in such areas.
    As previously discussed, this RCRA action alone does not directly
require any change in the management of these NHSMs. Any potential
materials management changes, and corresponding impacts to minority and
low-income communities, should be considered indirect responses to this
rulemaking, and would only occur when this rule is implemented in
conjunction with the corresponding CAA rules.

List of Subjects in 40 CFR Part 241

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

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

    For the reasons stated in the preamble, Title 40, chapter I, of the
Code of Federal Regulations is proposed to be amended as follows:

PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION
UNITS

0
1. The authority citation for part 241 continues to read as follows:

    Authority:  42 U.S.C. 6903, 6912, 7429.

Subpart A--General

0
2. Section 241.2 is amended by adding the definitions for
``Construction and demolition (C&D)'', ``Creosote treated railroad
ties'', and ``Paper recycling residuals'' in alphabetical order to read
as follows:

Sec.  241.2  Definitions.

* * * * *
    Construction and demolition (C&D) wood means wood that is generated
from the processing of debris from construction and demolition
activities for the purposes of recovering wood. C&D wood from
construction activities results from cutting wood down to size during
installation or from purchasing more wood than a project ultimately
requires. C&D wood from demolition activities results from dismantling
buildings and other structures or removing materials during renovation.
* * * * *
    Creosote treated railroad ties means railway support ties treated
with a wood preservative containing creosols and phenols and made from
coal tar oil.
* * * * *
    Paper recycling residuals means the co-product material generated
from the paper recycling process and is

composed primarily of wet strength and short wood fibers that cannot be
used to make new paper and paperboard products. The term paper
processing residuals also includes fibers from old corrugated container
rejects.
* * * * *

Subpart B--Identification of Non-Hazardous Secondary Materials That
Are Solid Wastes When Used as Fuels or Ingredients in Combustion
Units

0
3. Section 241.3 is amended by revising paragraphs (b)(2), (c)(1)
introductory text, and (d)(1)(iii) to read as follows:

Sec.  241.3  Standards and procedures for identification of non-
hazardous secondary materials that are solid wastes when used as fuels
or ingredients in combustion units.

* * * * *
    (b) * * *
    (2) [Reserved]
* * * * *
    (c) * * *
    (1) Submittal of an application to the Regional Administrator for
the EPA Region where the facility or facilities are located or the
Assistant Administrator for the Office of Solid Waste and Emergency
Response for a determination that the non-hazardous secondary material,
even though it has been transferred to a third party, has not been
discarded and is indistinguishable in all relevant aspects from a fuel
product. The determination will be based on whether the non-hazardous
secondary material has not been discarded is a legitimate fuel as
specified in paragraph (d)(1) of this section and on the following
criteria:
* * * * *
    (d) * * *
    (1) * * *
    (iii) The non-hazardous secondary material must contain
contaminants or groups of contaminants at levels comparable in
concentration to or lower than those in traditional fuel(s) which the
combustion unit is designed to burn. In determining which traditional
fuel(s) a unit is designed to burn, persons may choose a traditional
fuel that can be or is burned in the particular type of combustion
unit, whether or not the unit is permitted to burn that traditional
fuel. In comparing contaminants between traditional fuel(s) and a non-
hazardous secondary material, persons can use data for traditional fuel
contaminant levels compiled from national surveys, as well as
contaminant level data from the specific traditional fuel being
replaced. To account for natural variability in contaminant levels,
persons can use the full range of traditional fuel contaminant levels,
provided such comparisons also consider variability in non-hazardous
secondary material contaminant levels. Such comparisons are to be based
on a direct comparison of the contaminant levels in both the non-
hazardous secondary material and traditional fuel(s) prior to
combustion.
* * * * *
0
4. Section 241.4 is amended by revising the section heading and adding
paragraphs (a)(5), (6), and (7) to read as follows:

Sec.  241.4  Non-waste determinations for specific non-hazardous
secondary materials when used as a fuel.

    (a) * * *
    (5) Construction and demolition (C&D) wood processed from C&D
debris according to best management practices. Combustors of C&D wood
must obtain a written certification from C&D processing facilities that
the C&D wood has been processed by trained operators in accordance with
best management practices. Best management practices for purposes of
this categorical listing must include sorting by trained operators that
excludes or removes the following materials from the final product
fuel: Non-wood materials (e.g., polyvinyl chloride and other plastics,
drywall, concrete, aggregates, dirt, and asbestos), and wood treated
with creosote, pentachlorophenol, chromated copper arsenate, or other
copper, chromium, or arsenical preservatives. In addition:
    (i) C&D processing facilities that use positive sorting--where
operators pick out desirable wood from co-mingled debris--must either:
    (A) Exclude all painted wood from the final product fuel,
    (B) Use X-ray Fluorescence to ensure that painted wood included in
the final product fuel does not contain lead-based paint, or
    (C) Require documentation that a building has been tested for and
does not include lead-based paint before accepting demolition debris
from that building.
    (ii) C&D processing facilities that use negative sorting--where
operators remove contaminated or otherwise undesirable materials from
co-mingled debris--must remove fines (i.e., small-sized particles that
may contain relatively high concentrations of lead and other
contaminants) and either:
    (A) Remove painted wood,
    (B) Use X-ray Fluorescence to detect and remove lead-painted wood,
or
    (C) Require documentation that a building has been tested for and
does not include lead-based paint before accepting demolition debris
from that building.
    (6) Paper recycling residuals, including old corrugated cardboard
(OCC) rejects, generated from the recycling of recovered paper and
paperboard products and burned on-site by paper recycling mills whose
boilers are designed to burn solid fuel.
    (7) Creosote-treated railroad ties that are processed and combusted
in units designed to burn both biomass and fuel oil.
* * * * *
[FR Doc. 2014-07375 Filed 4-11-14; 8:45 am]
BILLING CODE 6560-50-P