# Additions to List of Categorical Non-Waste Fuels > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-01866 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** February 8, 2016 - **Citation:** 81 FR 6688 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 241 [EPA-HQ-RCRA-2013-0110; FRL-9929-56-OLEM] RIN-2050-AG74 Additions to List of Categorical Non-Waste Fuels AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency (EPA or the Agency) is issuing amendments to the Non-Hazardous Secondary Materials rule, initially promulgated on March 21, 2011, and amended on February 7, 2013, under the Resource Conservation and Recovery Act. The Non-Hazardous Secondary Materials rule generally established standards and procedures for identifying whether non-hazardous secondary materials are solid wastes when used as fuels or ingredients in combustion units. In the February 2013 amendments, the EPA listed particular non-hazardous secondary materials as “categorical non-waste fuels” provided certain conditions are met. Persons burning these non-hazardous secondary materials do not need to evaluate them under the general case-by-case standards and procedures that would otherwise apply to non-hazardous secondary materials used in combustion units. This action adds three materials to the list of categorical non-waste fuels: Construction and demolition wood processed from construction and demolition debris according to best management practices; paper recycling residuals generated from the recycling of recovered paper, paperboard and corrugated containers and combusted by paper recycling mills whose boilers are designed to burn solid fuel; and creosote treated railroad ties that are processed and then combusted in the following types of units: Units designed to burn both biomass and fuel oil as part of normal operations and not solely as part of start-up or shut-down operations, and units at major source pulp and paper mills or power producers subject to 40 CFR part 63, subpart DDDDD that combust CTRT and had been designed to burn biomass and fuel oil, but are modified ( e.g. oil delivery mechanisms are removed) in order to use natural gas instead of fuel oil, as part of normal operations and not solely as part of start-up or shut-down operations. DATES: This rule is effective March 9, 2016. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-RCRA-2013-0110. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically at http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the RCRA Docket is (202) 566-0270. FOR FURTHER INFORMATION CONTACT: George Faison, Office of Resource Conservation and Recovery, Materials Recovery and Waste Management Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (703) 305-7652; email: faison.george@epa.gov. SUPPLEMENTARY INFORMATION: The information presented in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. Why is the EPA taking this action? II. Statutory Authority III. Introduction-Summary of Regulations Being Finalized IV. Background A. History of the NHSM Rulemakings B. Background to Final Rule C. How does the EPA make categorical non-waste determinations? V. Comments on the Proposed Rule and Rationale for Final Decisions A. Construction and Demolition Debris Processed According to Best Management Practices 1. Detailed Description of C&D Wood 2. C&D Wood Under Current NHSM Rules 3. Scope of the Proposed Rule and Final Categorical Non-Waste Listing for C&D Wood 4. Rationale for Final Rule 5. Summary of Comments Requested 6. Response to Comments B. Paper Recycling Residuals Used as Fuel at Paper Recycling Mills 1. Detailed Description of Paper Recycling Residuals 2. PRRs Under Previous NHSM Rules 3. Scope of the Proposed Rule and Final Categorical Non-Waste Listing for Certain PRRs 4. Rationale for Final Rule 5. Summary of Comments Requested 6. Responses to Comments C. Creosote-Treated Railroad Ties (CTRTs) 1. Detailed Description of CTRTs 2. CTRTs Under Previous NHSM Rules 3. Scope of the Proposed Rule and Final Categorical Non-Waste Listing for CTRT 4. Rationale for Final Rule 5. Summary of Comments Requested 6. Responses to Comments VI. Technical Corrections A. Change to 40 CFR 241.3(b)(2) B. Change to 40 CFR 241.3(c)(1) C. Change to 40 CFR 241.3(d)(1)(iii) VII. Effect of This Rule on Other Programs VIII. State Authority A. Relationship to State Programs B. State Adoption of the Rulemaking IX. Cost and Benefits X. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) I. General Information A. Does this action apply to me? Categories and entities potentially affected by this action, either directly or indirectly, include, but may not be limited to the following: Generators and Potential Users a of the New Materials To Be Added to the List of Categorical Non-Waste Fuels Primary industry category or sub category NAICS b Utilities 221 Construction of Buildings 236 Site Preparation Contractors 238910 Manufacturing 31, 32, 33 Wood Product Manufacturing 321 Sawmills 321113 Wood Preservation (includes crosstie creosote treating) 321114 Pulp, Paper, and Paper Products 322 Cement manufacturing 32731 Railroads (includes line haul and short line) 482 Scenic and Sightseeing Transportation, Land (Includes: Railroad, scenic and sightseeing) 487110 Port and Harbor Operations (Used railroad ties) 488310 Landscaping Services 561730 Solid Waste Collection 562111 Solid Waste Landfill 562212 Solid Waste Combustors and Incinerators 562213 Marinas 713930 a Includes: Major Source Boilers, Area Source Boilers, and Solid Waste Incinerators. b NAICS—North American Industrial Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities potentially impacted by this action. This table lists examples of the types of entities of which the EPA is aware that could potentially be affected by this action. Other types of entities not listed could also be affected. To determine whether your facility, company, business, organization, etc., is affected by this action, you should examine the applicability criteria in this rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section. B. Why is the EPA taking this action? The Non-Hazardous Secondary Materials (NHSM) regulations at 40 CFR part 241 generally establish standards and procedures for identifying whether NHSMs are solid wastes when used as fuels or ingredients in combustion units. In the February 2013 amendments, the EPA listed particular NHSMs as “categorical non-waste fuels” provided certain conditions are met. Persons burning these NHSMs do not need to evaluate them under the general case-by-case standards and procedures that would otherwise apply to NHSMs used in combustion units. This action adds three materials to the list of categorical non-waste fuels: (1) Construction and demolition (C&D) wood processed from C&D debris according to best management practices, (2) paper recycling residuals generated from the recycling of recovered paper, paperboard and corrugated containers and combusted by paper recycling mills whose boilers are designed to burn solid fuels; and (3) creosote treated railroad ties that are processed and then combusted in the types of units described herein. Abbreviations and Acronyms. The following acronyms and abbreviations are used in this document. ATCM Airborne Toxic Control Measure BMP Best management practice Btu British thermal unit C&D Construction and demolition CAA Clean Air Act CARB California Air Resources Board CBI Confidential business information CCA Chromated copper arsenate CFR Code of Federal Regulations CISWI Commercial and Industrial Solid Waste Incinerator CTRT Cresosote-treated railroad tie EPA U.S. Environmental Protection Agency FR Federal Register HAP Hazardous air pollutant ICR Information collection request MACT Maximum achievable control technology NAICS North American Industrial Classification System ND Non-detect NESHAP National emission standards for hazardous air pollutants NHSM Non-hazardous secondary material OCC Old Corrugated Cardboard OMB Office of Management and Budget PAH Polycyclic aromatic hydrocarbons ppm Parts per million PRR Paper recycling residual PVC Polyvinyl chloride RCRA Resource Conservation and Recovery Act RIN Regulatory information number SBA Small Business Administration SO 2 Sulfur dioxide SVOC Semi-volatile organic compound TCLP Toxicity characteristic leaching procedure UMRA Unfunded Mandates Reform Act UPL Upper prediction limit U.S.C. United States Code VOC Volatile organic compound XRF X-ray fluorescence II. Statutory Authority The EPA is issuing final amendments to list certain NHSMs as categorical non-waste fuels in 40 CFR 241.4(a) under the authority of sections 2002(a)(1) and 1004(27) of the Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the Clean Air Act (CAA) directs the EPA to establish standards for Commercial and Industrial Solid Waste Incinerators (CISWI), which burn solid waste. Section 129(g)(6) of the CAA provides that the term “solid waste” is to be established by the EPA under RCRA (42 U.S.C. 7429). Section 2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as are necessary to carry out its functions under the Act. The statutory definition of “solid waste” is stated in RCRA section 1004(27). III. Introduction-Summary of Regulations Being Finalized Regulations concerning NHSMs used as fuels or ingredients in combustion units are codified in 40 CFR part 241. 1 This action amends the part 241 regulations by adding three NHSMs to the list of categorical non-waste fuels codified in § 241.4(a). These new categorical listings are for: 1 40 CFR 241.2 defines non-hazardous secondary material as a secondary material that, when discarded, would not be identified as a hazardous waste under 40 CFR part 261. • Construction and demolition (C&D) wood processed from C&D debris according to best management practices. • Paper recycling residuals generated from the recycling of recovered paper, paperboard and corrugated containers and combusted by paper recycling mills whose boilers are designed to burn solid fuel. • Creosote treated railroad ties that are processed and then combusted in the following types of units: Units designed to burn both biomass and fuel oil as part of normal operations and not solely as part of start-up or shut-down operations, and units at major source pulp and paper mills or power producers 2 subject to 40 CFR part 63, subpart DDDDD that combust CTRT and had been designed to burn biomass and fuel oil, but are modified ( e.g. oil delivery mechanisms were removed) in order to use natural gas instead of fuel oil, as part of normal operations and not solely as part of start-up or shut-down operations. 2 40 CFR 241.2 defines power producer as a boiler unit producing electricity for sale to the grid. The term does not include units meeting the definition of electricity generating unit under 40 CFR 63.10042 of the Utility Mercury and Air Toxics Standards rule. (Refer to section V of this preamble or the regulatory text for a full description of the categorical listings). Determining whether a material is a solid waste is of particular importance as it relates to CAA section 129. That section states the term “solid waste” shall have the meaning “established by the Administrator pursuant to the Solid Waste Disposal Act.” Id at 7429(g)(6). The Solid Waste Disposal Act, as amended, is commonly referred to as the Resource Conservation and Recovery Act or RCRA. If a material is a solid waste under RCRA, a combustion unit burning that material is required to meet the CAA section 129 emission standards for solid waste incineration units. If the material is not a solid waste, combustion units are required to meet the CAA section 112 emission standards for commercial, industrial, and institutional boilers or, if the combustion unit is a cement kiln, the CAA section 112 emissions standards for Portland cement kilns. Under CAA section 129, the term “solid waste incineration unit” is defined, in pertinent part, to mean “a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments . . .” 42 U.S.C. 7429(g)(1). The courts have determined that the CAA unambiguously requires any unit that combusts “any solid waste material at all”—regardless of whether the material is being burned for energy recovery—to be regulated as a solid waste incineration unit. See NRDC v. EPA (489 F.3d 1250 (D.C. Cir. 2007)). RCRA defines “solid waste” as “. . . any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material . . . resulting from industrial, commercial, mining, and agricultural operations, and from community activities . . .” (RCRA section 1004 (27) (emphasis added)). The key concept is that of “discard” and, in fact, this definition turns on the meaning of the phrase, “other discarded material,” since this term encompasses all other examples provided in the definition. In determining the meaning of discard, the courts have determined that the ordinary, plain English definition controls, i.e., discard means “disposed of,” “thrown away” or “abandoned.” See American Mining Congress v. EPA 824 F. 2d 1177 (D.C. Dir. 1987); see 76 FR 15460 for a detailed discussion on the RCRA definition of solid waste and CAA section 129. IV. Background A. History of the NHSM Rulemakings The Agency first solicited comments on how the RCRA definition of solid waste should apply to NHSMs when used as fuels or ingredients in combustion units in an advanced notice of proposed rulemaking (ANPRM), which was published in the Federal Register on January 2, 2009 (74 FR 41). We then published an NHSM proposed rule on June 4, 2010 (75 FR 31844), which the EPA made final on March 21, 2011 (76 FR 15456). In the March 21, 2011 rule, the EPA finalized standards and procedures to be used to identify whether NHSMs are solid wastes when used as fuels or ingredients in combustion units. “Secondary material” was defined for the purposes of that rulemaking as any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, off-specification commercial chemical products or manufacturing chemical intermediates, post-industrial material, and scrap (codified in 40 CFR 241.2). “Non-hazardous secondary material” is a secondary material that, when discarded, would not be identified as a hazardous waste under 40 CFR part 261 (codified in 40 CFR 241.2). Traditional fuels, including historically managed traditional fuels ( e.g., coal, oil, natural gas) and “alternative” traditional fuels ( e.g., clean cellulosic biomass) are not secondary materials and thus, are not solid wastes under the rule unless discarded. A key concept under the March 21, 2011 rule is that NHSMs used as non-waste fuels in combustion units must meet the legitimacy criteria specified in 40 CFR 241.3(d)(1). Application of the legitimacy criteria helps ensure that the fuel product is being legitimately and beneficially used and not simply being discarded through combustion ( i.e., via sham recycling). To meet the legitimacy criteria, the NHSM must be managed as a valuable commodity, have a meaningful heating value and be used as a fuel in a combustion unit that recovers energy, and contain contaminants or groups of contaminants at concentrations comparable to (or lower than) those in traditional fuels which the combustion unit is designed to burn. Based on these criteria, the March 21, 2011 rule identified the following NHSMs as not being solid wastes: • The NHSM is used as a fuel and remains under the control of the generator (whether at the site of generation or another site the generator has control over) that meets the legitimacy criteria (40 CFR 241.3(b)(1)); • The NHSM is used as an ingredient in a manufacturing process (whether by the generator or outside the control of the generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3)); • Discarded NHSM has been sufficiently processed to produce a fuel or ingredient that meets the legitimacy criteria (40 CFR 241.3(b)(4)); or • Through a case-by-case petition process, it has been determined that the NHSM handled outside the control of the generator has not been discarded and is indistinguishable in all relevant aspects from a fuel product, and meets the legitimacy criteria (40 CFR 241.3(c)). In October 2011, the Agency announced it would be initiating a new rulemaking proceeding to revise certain aspects of the NHSM rule. 3 On February 7, 2013, the EPA published a final rule, which addressed specific targeted amendments and clarifications to the 40 CFR part 241 regulations (78 FR 9112). These revisions and clarifications were limited to certain issues on which the Agency had received new information, as well as targeted revisions that the Agency believed were appropriate in order to allow implementation of the rule as the EPA originally intended. The amendments modified 40 CFR 241.2 and 241.3, added 40 CFR 241.4, and included the following: 4 3 See October 14, 2011, Letter from Administrator Lisa P. Jackson to Senator Olympia Snowe. A copy of this letter has been placed in the docket for this final rule (EPA-HQ-RCRA-2008-1873). 4 See 78 FR 9112 (February 7, 2013) for a discussion of the rule and the Agency's basis for its decisions. • Revised Definitions: The EPA revised three definitions discussed in the proposed rule: (1) “clean cellulosic biomass,” (2) “contaminants,” and (3) “established tire collection programs.” In addition, based on comments received on the proposed rule, the Agency revised the definition of “resinated wood.” • Contaminant Legitimacy Criterion for NHSMs Used as Fuels: The EPA issued revised contaminant legitimacy criterion for NHSMs used as fuels to provide additional details on how contaminant-specific comparisons between NHSMs and traditional fuels may be made. The revisions include: (1) The ability to compare groups of contaminants where technically reasonable; (2) clarification that “designed to burn” means can burn or does burn, and not necessarily permitted to burn; (3) the ability to use traditional fuel data from national surveys and other sources beyond a facility's current fuel supplier; and (4) the ability to use ranges of traditional fuel contaminant levels when making contaminant comparisons, provided the variability of the NHSM contaminant levels is also considered. • Categorical Non-Waste Determinations for Specific NHSMs Used as Fuels. The EPA codified determinations that certain NHSMs are non-wastes when used as fuels. If a material is categorically listed as a non-waste fuel, persons that generate or burn these NHSMs will not need to make individual determinations, as required under the existing rules, that these NHSMs meet the legitimacy criteria. Except where otherwise noted, combustors of these materials will not be required to provide further information demonstrating their non-waste status. Based on all available information, the EPA determined the following NHSMs are not solid wastes when burned as a fuel in combustion units and has categorically listed them in 40 CFR 241.4(a). 5 5 In the March 21, 2011 NHSM rule (76 FR 15456), EPA identified two NHSMs as not being solid wastes, although persons would still need to make individual determinations that these NHSMs meet the legitimacy criteria: (1) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs and (2) resinated wood used in a combustion unit. However, in the February 2013 NHSM rule, the Agency amended the regulations and categorically listed these NHSMs as not being solid wastes. — Scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires; — Resinated wood; — Coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal that would have been refuse if mined in the past; — Dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials. • Rulemaking Petition Process for Other Categorical Non-Waste Determinations: EPA made final a process in 40 CFR 241.4(b) that provides persons an opportunity to submit a rulemaking petition to the Administrator, seeking a determination for additional NHSMs to be categorically listed in 40 CFR 241.4(a) as non-waste fuels, if they can demonstrate that the NHSM meets the legitimacy criteria or, after balancing the legitimacy criteria with other relevant factors, EPA determines that the NHSM is not a solid waste when used as a fuel. Based on these non-waste categorical determinations, as discussed above, facilities burning NHSMs that meet the categorical listing description will not need to make individual determinations that the NHSM meets the legitimacy criteria or provide further information demonstrating their non-waste status on a site-by-site basis, provided they meet the conditions of the categorical listing. Please refer to section IV.C of this preamble for details on the petition process. B. Background to Final Rule As discussed in the February 2013 final rule, 6 the Agency had received comments that additional NHSMs should be categorically listed as non-waste fuels for which the Agency had not requested information as a part of that proposal. We did not respond to such comments and issues since they were beyond the scope of that rulemaking and indicated that, because the Agency did not specifically solicit comments or propose that those NHSMs be categorically listed in 40 CFR 241.4(a), the Agency must go through notice and comment rulemaking before making a final decision. The February 2013 rule noted, however, that two NHSMs—paper recycling residuals (including old corrugated cardboard (OCC) rejects) and construction and demolition debris processed pursuant to best practices—would be good candidates for a future proposal based on information provided to the Agency and that EPA expected to propose those listings in a subsequent rulemaking. 6 78 FR 9160. To supplement the comments identified in the February 2013 rule, the Agency received additional information on these two NHSMs from stakeholders (see section V of this preamble). As discussed in the following sections, the EPA has determined the information received to date, when taken together, supports a categorical determination of these materials as non-waste fuels and is today listing them as categorical non-waste fuels in 40 CFR 241.4(a). In addition to paper recycling residuals and construction and demolition debris, the Agency identified creosote-treated railroad ties in the February 2013 final rule as a potential candidate for a categorical non-waste listing based on comments from stakeholders. However, the Agency indicated that additional information would need to be submitted before this NHSM could be addressed. If such information supported the representations made by industry—that is, the American Forest & Paper Association (AF&PA) and the American Wood Council—EPA stated that it expected to propose a categorical listing for this material as well. Finally, we noted in the February 2013 final rule that the Agency received a letter from the Treated Wood Council asking that non-hazardous treated wood be categorically listed—a broad category that would include creosote-treated railroad ties. The Agency noted it was in the process of reviewing the information in the letter and would consider whether to propose a categorical listing for this broader set of treated wood material. The Agency has reviewed the information submitted from stakeholders regarding creosote-treated railroad ties. As discussed in the following sections, the EPA has determined that the information received to date, when taken together, supports a categorical determination for creosote-treated railroad ties when combusted in the types of units described herein and is listing them as categorical non-wastes fuels in 40 CFR 241.4(a). 7 (refer to section V of this preamble or the regulatory text for a full description of this categorical listing). 7 As noted above, the Agency also received a petition from the Treated Wood Council asking that non-hazardous treated wood be categorically listed—a broad category that would include creosote-treated railroad ties. Other treated wood addressed in the petition included waterborne borate-based preservatives, waterborne organic-based preservatives, waterborne copper-based wood preservatives (ammoniacal/alkaline copper quat, copper azole, copper HDO, alkaline copper betaine, or copper naphthenate); creosote; oilborne copper naphthenate; pentachlorophenol; or dual-treated with any of the above. The Agency is in the process of reviewing that petition and supplementary information submitted subsequent to the petition. Accordingly, while cresosote treated wood railroad ties is included in the current rule, other treated wood materials identified in the Treated Wood Council's petition are not addressed in this action. If upon completion of the Agency's review, the information supports a categorical listing of one or more of these other treated wood materials, the Agency would propose those materials in a future rulemaking. See also discussion under Comments and Information Received on Other Types of Treated Wood in section V.A.6.c.. C. How does the EPA make categorical non-waste determinations? The February 7, 2013 revisions to the NHSM rule discuss the process and decision criteria whereby the Agency would make additional categorical non-waste determinations. (See 78 FR 9158.) While the categorical non-waste determinations in this action are not based on rulemaking petitions, the criteria the EPA used to assess these NHSMs as categorical non-wastes match the criteria to be used by the Administrator to determine whether to grant or deny the categorical non-waste petitions. 8 9 These determinations follow the criteria set out in 40 CFR 241.4(b)(5) to assess additional categorical non-waste petitions and follow the statutory standards as interpreted by the EPA in the NHSM rule for deciding whether secondary materials are wastes. Those criteria include: (1) Whether each NHSM has not been discarded in the first instance ( i.e., was not initially abandoned or thrown away) and is legitimately used as a fuel in a combustion unit or, if discarded, has been sufficiently processed into a material that is legitimately used as a fuel; and, (2) if the NHSM does not meet the legitimacy criteria described in 40 CFR 241.3(d)(1), whether the NHSM is integrally tied to the industrial production process, the NHSM is functionally the same as the comparable traditional fuel, or other relevant factors as appropriate. 8 For a full discussion regarding the petition process for receiving a categorical non-waste determination, see 78 FR 9111, February 7, 2013 (page 9158-9159). 9 Supplementary information received from by M.A. Energy Resources (February 2013) in support of the crosstie derived fuel was submitted as a categorical petition in accordance 40 CFR 241.4(b). Based on the information in the rulemaking record, including stakeholder comments, the Agency is amending 40 CFR 241.4(a) by listing three additional NHSMs as categorical non-wastes. Specific determinations regarding C&D wood, paper recycling residuals, and creosote-treated railroad ties as categorical non-wastes and how the information was assessed by EPA according to the criteria in 40 CFR 241.4(b)(5) are discussed in detail in section V of this preamble. V. Comments on the Proposed Rule and Rationale for Final Decisions In this section, the EPA provides the rationale for its determination that the three additional NHSMs are appropriate for listing as categorical non-wastes, under certain conditions. It also addresses major comments the Agency received regarding the three NHSMs proposed in the April 14, 2014 rule (79 FR 21005). A. Construction and Demolition Debris Processed According to Best Management Practices The April 14, 2014 proposed rule described C&D wood in detail (79 FR 21010-11), explained the status of C&D wood under current rules, discussed comments received during previous proceedings, as well as the scope of the proposed non-waste listing (79 FR 21011-12). The proposed rationale for the listing is found in the proposal at 79 FR 21012-16 and is summarized and incorporated into this final rule, along with all sources referenced in that discussion and cited therein. The final decision in this rule is based on the information in the proposal and supporting materials in the rulemaking record. Any changes made to the final rule are based on the rationale, as described below. 1. Detailed Description of C&D Wood As described in the proposed rule (79 FR 21010-11) and reiterated here, C&D wood is generated from the processing of debris from construction and demolition activities for the purposes of recovering wood. At construction activities, this debris results from cutting wood down to size during installation or from purchasing more wood than a project ultimately requires, while at demolition activities, this debris results from dismantling buildings and other structures or removing materials during renovation. 10 Information previously compiled by the Agency indicates C&D activities generate an estimated 33 to 49 million tons of scrap wood each year, approximately half of which is of acceptable size, quality, and condition to be considered available for recovery. However, information on the amount of processed C&D wood that is burned for energy recovery is unavailable, although sources surveyed by EPA for the 2010 proposed CISWI rule and the National Emission Standards for Hazardous Air Pollutants for Area and Major Industrial, Commercial, and Institutional Boilers (Boilers) rule indicate that between 4.7 to 11.2 million tons per year of processed C&D wood may be burned for energy recovery. 11 10 Two revisions have been made to the definition of C&D wood. Please refer to section V.A.3. of this preamble for a discussion of the revisions to the definition of C&D wood for the final rule. 11 Materials Characterization Paper: Construction and Demolition Materials. February 3, 2011. EPA-HQ-RCRA-2008-0329-1811. Also, because clean C&D wood is considered “clean cellulosic biomass” and is already excluded from being a solid waste, 12 the Agency expected the proposed rule would address C&D wood generated predominantly from demolition activities. However, the proposal acknowledged clean C&D wood generated from construction activities that is mixed with contaminated C&D debris would be subject to the same practices and requirements described in the proposed rulemaking, because it is comingled with contaminated materials that would not constitute “clean cellulosic biomass.” The Agency finds, similarly, the practices and requirements adopted in this final rule, which are modified slightly from the proposal, also apply to the commingled materials generated from construction activities. No information was presented in this rulemaking to cause the Agency to find otherwise. 12 Clean C&D wood is included in the definition of “clean cellulosic biomass” and thus, may be combusted as a traditional fuel if it does not contain contaminants at concentrations not normally associated with virgin wood. Conversely, C&D wood that is not “clean” is that which must be processed to remove contaminants such as lead-painted wood, treated wood containing contaminants, such as arsenic and chromium, metals and other non-wood materials. (See 76 FR 15485, March 21, 2011; 78 FR 9138-39, February 7, 2013; and 40 CFR 241.2). With respect to how C&D debris is handled, we noted in the proposal and find in this final rule that, although contractors may segregate C&D debris at building sites, the common practice—at demolition sites in particular—is to send co-mingled debris to independent C&D recycling or processing facilities. At these facilities, operators recover wood scraps from a mixture of building materials that often includes metals, concrete, plastics, and other items that are unsuitable for energy recovery in combustion units. Some operators use “positive sorting” techniques, meaning they specifically remove wood scraps from the co-mingled debris, picking out only desirable wood and leaving all other C&D debris behind for disposal or other recycling processes. Other operators use “negative sorting” techniques, meaning they achieve a similarly clean final product by removing or excluding contaminated or otherwise undesirable material from the C&D debris. Regardless of whether they use positive or negative sorting, processing facilities then grind the recovered wood to a specified size and deliver it to energy recovery facilities. C&D wood processing facilities can use a variety of techniques to remove or exclude debris unsuitable for a product fuel. Typically, processors use some combination of source control, inspection, sorting, and screening to meet the specifications identified by their customers ( i.e., combustion facilities). The nature of the incoming C&D debris, the extent of material segregation prior to arrival at the processing facility, whether positive or negative sorting is employed, and the scale of the processing facility ( e.g., the degree of sorting and number of screening devices) help determine which combination of practices will be most effective. Individual states also have different requirements related to the processing and combustion of C&D wood. 13 Despite the variety of options, the Agency finds certain practices are essential to ensure processing of the C&D debris produces a legitimate product fuel. These practices, described in the proposal as best management practices, have been adopted in this final rule with minor changes and are discussed later in section V.A.3. of this preamble. In addition to excluding or removing a set list of C&D materials known to contain contaminants ( e.g., certain types of treated wood), processors must take steps to eliminate less obvious contaminant sources ( e.g., lead-based paint). Consequently, the standards proposed and finalized in this document, ensure that the contaminants in the fuel that is burned will not be unpredictable, even though the sources of the wood may vary. 13 This final rulemaking does not change or replace existing state requirements regarding C&D wood. See section VIII. State Authority A. Relationship to State Programs of this preamble. 2. C&D Wood Under Current NHSM Rules a. March 21, 2011 and February 2013 Final Rules In both the March 21, 2011 and February 7, 2013 NHSM final rules, EPA discussed two scenarios under which the Agency would consider C&D wood to be a non-waste fuel. 14 First, “clean” C&D wood can be burned as a traditional fuel without any requirement for testing or recordkeeping—because it is a “clean cellulosic biomass” material indistinguishable in composition from virgin wood. 15 Second, wood recovered from C&D debris ( i.e., contaminated wood) can be sufficiently processed to meet the legitimacy criteria and, thus, would be a non-waste fuel, although combustion facilities burning the material would need to keep records documenting the material's non-waste status. Records would need to document not only how the processing operations meet the definition of processing in 40 CFR 241.2, but also how the product fuel meets the NHSM legitimacy criteria in 40 CFR 241.3(d)(1). 16 17 14 76 FR 15485, March 21, 2011 and 78 FR 9138, February 7, 2013. 15 In the February 7, 2013 final rule (78 FR 9139), the Agency emphasized that, “determinations that the cellulosic biomass used as a fuel or ingredient is clean, do not presuppose any testing of contaminant levels. Persons can use expert or process knowledge of the material to justify decisions regarding presence of contaminants.” 16 Recordkeeping requirements for area source boilers are found at 40 CFR 63.11225(c)(2)(ii), while recordkeeping requirements for major source boilers are found at 40 CFR 63.7555(d)(2). 17 While the combustor would be responsible for maintaining the records that such NHSM met the legitimacy criteria, the combustor could request that the person that generated the C&D wood provide documentation that the processing operations meet the definition of processing, as well as the legitimacy criteria, especially the contaminant legitimacy criterion. b. December 2011 Proposed Rule Although the December 2011 NHSM proposed rule did not discuss or solicit comments on processed C&D wood, a number of commenters submitted comments arguing processed C&D wood ( i.e., recovered from demolition activities) should be categorically listed as a non-waste fuel under 40 CFR 241.4(a), or otherwise a non-waste. 18 The commenters' rationale for listing processed C&D wood as a non-waste is as follows. 18 Comments submitted on the December 23, 2011 proposed rule are included in docket: EPA-HQ-RCRA-2008-0329. Specifically, see the document ID#'s ending in -1902, -1910, -1950, -1930, -1928, -1946, -1957, -1927, -1893, and -1905. • It is utilized in combination with other biomass materials to optimize and manage combustion in boilers due to its low moisture/high heat characteristics. • It is sufficiently processed to remove impurities. • From a practical materials management standpoint, C&D materials are not discarded; collection of most of these materials is planned for, with C&D recycle sorting and processing yards receiving the materials as a destination and the point of generation of the fuel product. • Commenters detail the processing and test data available for C&D materials, which demonstrates their value as a fuel. • Commenters noted the EPA has already included clean C&D materials in their proposed clean cellulosic biomass definition for traditional fuels, but EPA elsewhere identifies C&D materials that are not clean as subject to the legitimacy criteria. The commenters argued, therefore, the EPA should remove doubt and list these materials in the newly proposed 40 CFR 241.4(a) as a non-waste fuel given both their demonstrated fuel value and the industry that has been established for recycling these NHSMs into useful product fuel. Expanding further on these comments, several trade organizations submitted information in support of a categorical non-waste determination that would list processed C&D wood as a product fuel when burned in combustion units. The information suggested that a non-waste listing include all C&D wood processed in accordance with industry practices proven to produce a wood product meeting the NHSM legitimacy criteria. The commenters identified “proven practices” as the sorting (both mechanical and manual) of C&D material to separate the following contaminants: Non-wood material, wood treated with pentachlorophenol, chromated copper arsenic (CCA) treated wood, or other copper, chromium or arsenical preservatives, and lead (through the separation of either lead-painted wood or fines or through other means as specified in applicable state law). Commenters also compiled a dataset of contaminant concentrations in processed C&D wood from nine combustion facilities in seven states to demonstrate the efficacy of the identified practices. Case-by-case analysis is not necessary, the trade organizations contended, to ensure sufficient processing occurs and that C&D wood products—produced by different processors using different sorting techniques—are consistently managed as a valuable commodity, have meaningful heating values, and contain contaminants at levels comparable to or lower than traditional fuels. Instead, they argued persons burning C&D wood for energy recovery only need to certify the processed C&D wood came from a facility using the aforementioned sorting practices. Other commenters on the December 2011 NHSM proposed rule asserted that C&D wood should be regulated as a solid waste because they view it as having been discarded similar to scrap tires. Another commenter requested the EPA require testing for contamination based on what they described as highly unpredictable contaminant levels. The commenter referenced specific combustion facilities that accepted C&D wood, including lead-painted wood and CCA-treated wood, as well as plastics and foreign debris to support a requirement for testing. In addition, the same commenter argued that C&D wood should only be compared to clean untreated wood when conducting a contaminant comparison, not necessarily what the unit is designed to burn. 19 The Agency's decision on this final rule considers the issues raised in these comments on the December 2011 proposed rule. Responses to the issues raised in these comments are included in section V.A.6. of this preamble. 19 Comments submitted on the December 23, 2011 proposed rule (76 FR 80452) are included in docket: EPA-HQ-RCRA-2008-0329. Specifically, see the document ID numbers ending in -1959 and -1974. 3. Scope of the Proposed Rule and Final Categorical Non-Waste Listing for C&D Wood Based on information in the record, including comments submitted before proposal, the Agency proposed the categorical non-waste listing for wood recovered from C&D debris which has been processed according to best management practices to remove certain contaminants, as a categorical non-waste in 40 CFR 241.4(a). Under the proposed rule, combustors of C&D wood must obtain a written certification from C&D processing facilities that the C&D wood has been processed by trained operators in accordance with best management practices. 20 Such practices include sorting by trained operators that excludes or removes non-wood materials ( e.g., polyvinyl chloride and other plastics, drywall, concrete, aggregates, dirt, and asbestos), and wood treated with creosote, 21 pentachlorophenol, chromated copper arsenate, or other copper, chromium, or arsenical preservatives. In addition, C&D processing facilities that use positive sorting (where operators pick out desirable wood from co-mingled debris) must either exclude all painted wood from the final product fuel, use X-ray Fluorescence to ensure that painted wood included in the final product fuel does not contain lead-based paint, or require documentation that a building has been tested for and does not include lead-based paint before accepting demolition debris from that building. 20 If the processed C&D wood does not meet the categorical listing, the wood may still be considered a non-waste fuel (on a case-by-case basis), although any combustor that burns such processed C&D wood would need to keep records documenting the materials non-waste status pursuant to 40 CFR 63.11225(c)(2)(ii) and 40 CFR 63.7555(d)(2). 21 Although industry trade groups did not list creosote treated wood as wood that is excluded or removed, they provided information indicating that C&D debris can include creosote treated wood. Based upon the contaminants present in creosote treated wood and the types of boilers that burn C&D wood ( i.e., those that are designed to burn clean wood and biomass), operators must exclude or remove creosote treated wood. With respect to creosote and as discussed later in section V.C of this preamble, the Agency evaluated data provided for creosote-treated railway ties and determined that boiler design was an integral factor in satisfying the contaminant legitimacy criterion. C&D processing facilities that use negative sorting (where operators remove contaminated or otherwise undesirable materials from co-mingled debris) must remove fines, i.e., small-sized particles that may contain relatively high concentrations of lead and other contaminants, and either remove painted wood, use X-ray Fluorescence to detect and remove lead-painted wood, or require documentation that a building has been tested for and does not include lead-based paint before accepting demolition debris from that building. This rule finalizes the criteria and requirements discussed in the proposal for reasons explained in the proposal, with three changes to the regulatory language for lead elimination requirements for both positive and negative sorting facilities, two changes to the definition of C&D wood, and the addition of new language for the processor's written certification and training requirements. The changes and additions were made in response to comments received and based on other supporting information in the record and to provide clarity to the best management practice requirements, as well as the definition of C&D wood. The rationale for the changes and additions that have been made in the final rule are explained below in this section. The general rationale for the final listing is provided in the next section V.A.4. of this preamble. Lead Elimination Requirements. One of the changes between the proposed rule and final rule concerns the lead elimination requirements for positive sorting processors. The lead exclusion language for positive sorting processors proposed at 40 CFR 241.4(a)(5)(i) did not specifically provide that facilities receiving pre-sorted wood from positive sorting entities who may need to remove small amounts of unwanted material prior to chipping and grinding the wood are also considered positive sorting facilities. Because these facilities remove some materials, they could be considered negative sorters. The proposed regulatory language resulted from a presumed scenario in which C&D debris was sent to a single, centralized processing facility. However, there are other processors who receive segregated or pre-sorted C&D wood from small generators. 22 These small generators ( e.g., contractors, community collections, citizen drop-off locations, and transfer stations) segregate and collect clean C&D wood using positive sorting and provide the recovered C&D wood to “chip and grind” processors. The chip and grind processors then conduct additional sorting, using negative sorting techniques, to remove small amounts of unwanted materials from the shipment prior to processing. These processors should not be considered negative sorters. 22 See comments and data submitted by Covanta (EPA -HQ-RCRA-2013-0110-0084), comments from American Reclamation Inc. (EPA-HQ-RCRA-2013-0110-0073), and comments from Genesee Power Station (GPS) (EPA-HQ-RCRA-2013-0110-0091). Recall that negative sorters are required to remove fines to ensure lead concentrations in the product fuel are comparable to or lower than wood or biomass. Positive sorters, however, are not required to remove fines because only the desirable wood is picked from the C&D debris. Thus, to require a “chip and grind” processing operation that has received positive sorted C&D wood to remove fines when there are none present is unnecessary. Therefore, the language for positive sorting has been revised to include processors that receive pre-sorted wood from positive sorting entities. This revision clarifies that these processors are not negative sorters for purposes of identifying which lead requirements are applicable. Specifically, the final language at 40 CFR 241.4(a)(5)(i) includes new text (see italic print) to capture these facilities: “C&D processing facilities that use positive sorting—where operators pick out desirable wood from co-mingled debris— or that receive and process positive sorted C&D wood must either . . .” Another change was made to the lead elimination requirements, but for negative sorters. The term “all” was added to the options for removing painted wood under 40 CFR 241.4(a)(5)(ii)(A). This requirement is now consistent with the corresponding requirement for positive sorting facilities and emphasizes that if processors choose this particular lead elimination option, then any painted wood received must be removed (or excluded in the case of positive sorting facilities). The purpose of this change is to ensure all painted wood, regardless of sorting practices, is eliminated from the final product if the processor chooses this lead elimination strategy. While it is expected that processors will make every effort to remove or exclude all painted wood under this option, de minimis amounts could be present and still render the resultant material a product fuel. The final regulatory language adds new text to 40 CFR 241.4(a)(5)(ii)(A), and now states “[r]emove all painted wood.” The third change that has been made applies to both positive and negative sorters. As stated in the previous paragraph, the term “all” has been added to the negative sorting requirements for consistency and to reaffirm that this particular option is intended to be a stringent standard. However, to provide additional clarity regarding the Agency's position on de minimis amounts, we have added the following language as a parenthetical to both 40 CFR 241.4(a)(5)(i)(A) and (ii)(A): “( to the extent that only de minimis quantities inherent to processing limitations may remain )”. Definition of C&D wood. Two revisions to the definition of C&D wood (40 CFR 241.2) have been made. One revision is to include disaster debris and the second revision is to broaden what the Agency considers to be wood recovered from construction activities. In the proposed rule, the Agency noted clean wood in disaster debris had been included in the definition for “clean cellulosic biomass” in a prior rulemaking, but had not addressed clean wood from disaster debris mixed with contaminated materials ( e.g., lead-based painted wood, CCA treated wood, asbestos containing materials, utility poles, etc.) and sent for processing without any prior sorting. Also noted in the proposal, and of particular concern to the Agency, was that management of disaster debris is more expedited and less controlled and thus, prone to include contaminants that might otherwise be sorted out prior to processing. 23 Therefore, the Agency solicited comment on whether disaster debris should be included in the definition of C&D wood despite some concerns related to processing large volumes of material expeditiously. 23 Management of disaster debris can involve significantly greater volumes. For example, prior to the 1994 Northridge earthquake in Los Angeles, one local company processed 150 tons of C&D debris per day. After the earthquake, the city picked up as much as 10,000 tons of C&D debris per day. The Agency finds that these concerns regarding the management of large volumes of material in an expeditious nature would only be relevant if the best management practices as finalized in this rule are not used to process wood from natural disaster debris. The Agency finds that the best management practices set forth in this rule are sufficient to ensure natural disaster debris is handled and processed in the same manner as other C&D debris, regardless of the source or quantity of material to be processed. In other words, processors that comply with the best management practices for this listing would not be altering the way in which they process the debris. Should a processor choose to hire and train additional sorters or extend operational hours to process higher volumes, the limiting factors in this rule that will continue to ensure the quality of the processed material are the best management practices and the training and certification requirements. Furthermore, the information provided to the Agency discusses that when the incoming material exceeds processing capacity, the excess material is stored or sent to a landfill. 24 Given the best management practices and information indicating the typical handling of excess material, the Agency has determined it is appropriate to include disaster debris in the definition of C&D wood. Thus, clean wood from natural disaster debris mixed with other materials and delivered to a processing facility has been added to the definition of C&D wood. However, the natural disaster debris must be processed in the same manner as C&D wood recovered from C&D activities to qualify for this categorical non-waste listing. The last sentence of the definition for C&D wood at 40 CFR 241.2 has been revised to add text for natural disasters and now reads: “C&D wood from demolition activities results from dismantling buildings and other structures, removing materials during renovation, or from natural disasters.” 24 See comments from American Forest & Paper Association (EPA-HQ-RCRA-2013-0110-0076) and Waste Management (EPA-HQ-RCRA-2013-0110-0094. The second revision made to the definition of C&D wood is to broaden the description of C&D wood generated from construction activities. As proposed, commenters interpreted it to be limited in scope because it did not capture the many sources of wood generated from construction activities, particularly for installation activities. The wording in the second sentence of the proposed definition for C&D wood at 40 CFR 241.2 read: “C&D wood from construction activities results from cutting wood down to size during installation or from purchasing more wood than a project ultimately requires.” A commenter suggested listing additional types of installation activities associated with construction such as incorrectly cut wood, wood forms, support braces, stakes, etc. Rather than trying to provide an exhaustive list, which may not include every possible type of installation activity, the Agency has decided to revise the language to capture any type of installation activity that can generate construction wood debris. The second sentence of the definition now reads “C&D wood from construction activities results from wood generated during any installation activity or from purchasing more wood than a project ultimately requires.” The change acknowledges there are several ways installation activities can generate wood without limiting those activities. Training and certification. Two regulatory additions have been made based on concepts that had been discussed in the proposed rule preamble. One addition is a requirement for C&D processors to train their operators. The approach taken in the proposal was to not include a specific training requirement for processors, but to rely on a written certification as a means for processors to show they had used “trained” operators (79 FR 21026). However, the Agency finds this approach does not provide any assurance that the processor is conducting the necessary training in order to ensure that the resultant material is not discarded when combusted and is, therefore, not waste. Although the written certification statement, as proposed (and finalized in this rule), must state the processed C&D wood has been sorted by “trained” operators in accordance with best management practices, it did not require any evidence that training has taken place, nor did it hold the processor accountable to their customers. Thus, a mechanism is necessary to document when the training has been conducted so that processors are accountable when certifying they have used trained operators. This mechanism is implemented via new regulatory language at 40 CFR 241.4(a)(5)(iii) which states “[p]rocessors must train operators to exclude or remove the materials as listed in paragraph (a)(5) of this section from the final product fuel. Records of training must include dates of training held and must be maintained for a period of three years.” The training requirement serves as an additional condition of this categorical non-waste listing. For further discussion, see section V.A.5 of this preamble. The second regulatory addition is to specify the written certification requirements. As discussed in the proposal, to ensure the C&D wood is processed according to best management practices, it is important for the processor to certify they are meeting such best management practices using trained operators (79 FR 21013). The Agency has determined a written certification from the processor is a necessary mechanism for ensuring best management practices have been used and for indicating that the processor has used trained operators. The Agency recognizes contracts and purchase agreements can indicate a commitment to quality, but also specifications can vary according to the needs of one combustor versus another. More importantly, the contracts and purchase agreements that the Agency has seen do not show that C&D wood has been processed according to any particular best management practices, and consequently, cannot ensure that the resulting material is not a waste when combusted. Therefore, the written certification is finalized at 40 CFR 241.4(a)(5)(iv) and states “[a] written certification must be obtained by the combustor for every new or modified contract, purchase agreement, or other legally binding document, from each final processor of C&D wood and must include the statement: the processed C&D wood has been sorted by trained operators in accordance with best management practices.” This certification will assist the combustor's determination that the C&D wood has been sufficiently processed to meet the conditions of this categorical non-waste listing. Refer to the section V.A.5 of this preamble for additional background. 4. Rationale for Final Rule This section discusses the reasoning provided in the proposed rule and the reasons for the EPA's final determinations for the categorical listing of C&D wood. EPA adopts the reasoning in the proposed rule and further explains it in this preamble. Further explanations for the Agency's decision are provided in the Response to Comments below. The proposal, this section, and the Response to Comments all constitute the Agency's final determination supporting this rule. a. Discard When deciding whether an NHSM should be listed as a categorical non-waste fuel in accordance with 40 CFR 241.4(b)(5), the Agency first evaluates whether or not the NHSM has been discarded in the first instance and, if not so discarded, whether or not the material could be considered discarded because it is not legitimately used as a product fuel in a combustion unit. Based on the rulemaking record, as discussed below, the Agency has determined C&D wood is not discarded when: It is processed in accordance with best management practices described herein; it is legitimately used as a product fuel in a combustion unit; and when combustors of C&D wood have obtained a written certification from C&D processing facilities that the C&D wood has been processed by trained operators. i. Processing of C&D Wood In the April 14, 2014 proposed rule (79 FR 21012), the Agency reiterated the determination in the existing rules that the wood present in C&D debris is considered to be a solid waste prior to processing and that persons must transform the debris into a legitimate product fuel in order to burn the material as a non-waste fuel. 25 In accordance with 40 CFR 241.2, processing must include operations that transform discarded NHSM into a non-waste fuel or non-waste ingredient, including operations necessary to: Remove or destroy contaminants; significantly improve the fuel characteristics ( e.g., sizing or drying of the material, in combination with other operations); chemically improve the as-fired energy content; or improve the ingredient characteristics. Minimal operations that result only in modifying the size of the material by shredding do not constitute processing for the purposes of the definition. 25 This rulemaking does not change the waste status of C&D wood prior to processing, up to which point the material would likely be a solid waste subject to appropriate federal, state, and local requirements unless it meets the definition of “clean cellulosic biomass.” Compared to mixed C&D debris, processed C&D wood will have significantly fewer contaminants and improved fuel characteristics. Specifically, the removal or exclusion of specified materials, such as creosote-treated wood (PAHs, dibenzofuran), pentachlorophenol-treated wood (pentachlorophenol, dioxins), CCA-treated wood (chromium, arsenic), other copper, chromium, and arsenical treated wood, plastics (chlorine), drywall (sulfur), lead-based paint (lead), as well as insulation and other materials containing asbestos, 26 will result in significant contaminant removal. In addition, the removal of concrete, aggregates, dirt, and other non-combustible material will significantly increase the material's energy value. Finally, grinding all remaining wood to a specified size will allow combustors to transport, store, and use processed C&D wood in the same manner as virgin wood and biomass materials. 26 CAA regulations provide additional safeguards to ensure asbestos is removed from buildings prior to demolition. Part 61, subpart M (40 CFR 61.145) requires that owners or operators of a demolition or renovation activity to inspect the affected building for the presence of asbestos prior to demolition or renovation and notify the Administrator. EPA notes, however, that the 40 CFR 61.141 definition of “facility” explicitly excludes “residential buildings having four or fewer dwelling units” thus, small residential buildings that are demolished or renovated are not covered by the Federal asbestos NESHAP regardless of whether the demolition or renovation is performed by agents of the owner of the property or whether the demolition or renovation is performed by agents of the municipality. See also the “Asbestos NESHAP Clarification of Intent” (60 FR 38725; July 28, 1995). For incoming C&D debris, processing facilities can use a variety of techniques to exclude or remove debris unsuitable for a product fuel. Typically, processors use some combination of source control, inspection, sorting, screening, and grinding to meet the specifications identified by their customers ( i.e., combustion facilities). The nature of the incoming C&D debris, the extent of material segregation prior to arrival at the processing facility, whether positive or negative sorting is employed, and the scale of the processing facility ( e.g., the degree of sorting and number of screening devices) help determine which combination of practices will be most effective. The Agency has determined that the best management practices, when performed by trained operators, addresses the variability within the industry such that C&D processing facilities will produce a non-waste product with contaminants that are no greater than clean wood and biomass, regardless of the characteristics that can influence the level of contaminants in the C&D wood. Thus, the Agency finds such processing meets the definition of processing in 40 CFR 241.2. ii. Certification Further, to ensure the C&D wood is processed according to best management practices, the Agency had proposed to require processors to certify they are meeting such best management practices using trained operators. This requirement has been finalized in this rule for the reasons discussed earlier in section V.A.3. of this preamble. Combustors must obtain a written certification for every new or modified contract, purchase agreement, or other legally binding document, from each final processor of C&D wood. The written certification must include the statement: The processed C&D wood has been sorted by trained operators in accordance with best management practices. Combustors have the ultimate responsibility to determine the C&D wood has been sufficiently processed. The Agency has determined that, when C&D wood is processed according to the best management practices, it will have significantly fewer contaminants and improved fuel characteristics. The best management practices ensure the contaminants in the fuel that is burned will not be unpredictable, regardless of the type or number of processing techniques used. Thus, this rule finalizes the best management practices, with some minor changes from the proposed regulatory language as discussed previously in section V.A.3. of this preamble. b. Legitimacy Criteria In determining whether to list processed C&D wood as a categorical non-waste fuel in 40 CFR 241.4(a), the Agency evaluated the legitimacy criteria in 40 CFR 241.3(d)(1)—that is, whether it is managed as a valuable commodity, whether it has a meaningful heating value and is used as a fuel in a combustion unit to recover energy, and whether contaminants or groups of contaminants are at levels comparable to or less than those in the traditional fuel the unit is designed to burn. To the extent that processed C&D wood does not meet one or more of the legitimacy criteria, the Agency has considered other relevant factors in determining to list C&D wood as a categorical non-waste fuel in 40 CFR 241.4(b)(5)(ii) (see discussion on formaldehyde below). i. Managed as a Valuable Commodity Regarding the first legitimacy criterion, the information in the record in support of the proposal and this final rule demonstrates that both processors and combustors manage processed C&D wood as a valuable commodity. Specifically, after processing, including grinding to size, processors ship the material to energy recovery facilities in covered chip vans or semi-trailers. The material is then stored on-site at the combustion facilities in wood fuel storage yards and generally used within 90 days of delivery. 27 Because storage does not exceed reasonable time frames, and management is similar to that of virgin wood and biomass, the Agency has determined that processed C&D wood meets this legitimacy criterion. 27 See December 7, 2012 letter from Susan Bodine to Suzanne Rudzinski, page 3. EPA-HQ-RCRA-2008-0329-2009. ii. Meaningful Heating Value and Used as a Fuel To Recover Energy With respect to the second legitimacy criterion, the record shows that processed C&D wood has a meaningful heating value and is used as a fuel to recover energy. Specifically, information in the rulemaking record demonstrates that processed C&D wood has an average as-fired energy content of 6,640 Btu/lb, 28 which is greater than 5,000 Btu/lb, which the Agency considers to have a meaningful heating value (see 76 FR 15541, March 21, 2011). This also compares favorably to information compiled by the Agency in 2011, in which 95 samples of unadulterated timber burned by major source boilers 29 across the country exhibited an average as-fired energy content of 5,150 Btu/lb. 30 According to C&D trade organizations, energy recovery facilities purchase processed C&D wood and burn the material as fuel to generate electricity. Thus, the Agency has determined that processed C&D wood meets this legitimacy criterion. 28 Appendix A of April 25, 2013, submittal from Susan Bodine on behalf of BPA and CMRA, available in the Docket at EPA-HQ-RCRA-2013-0110. 29 Major sources are 30 USEPA, Office of Air Quality Planning and Standards, Emissions Database for Boilers and Process Heaters Containing Stack Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and ICR No. 2286.03 (Version 6). EPA Docket/Document Number EPA-HQ-OAR-2002-0058-3255. February 2011. iii. Contaminants Comparable to or Lower Than Traditional Fuels For the third legitimacy criterion, C&D trade organizations provided the Agency with contaminant analyses of more than 220 samples of processed C&D wood from nine combustion facilities in California, Maine, Massachusetts, Minnesota, New York, the state of Washington, and Wisconsin in support of the proposed categorical listing for processed C&D wood. The Agency compared the contaminant levels found in the processed C&D wood to the contaminant levels found in clean wood and biomass materials since any unit burning processed C&D wood can clearly burn clean wood and biomass materials as well. 31 31 In response to the proposal, EPA did receive data showing a contaminant comparison to coke and coal. However, the data was specific to cement kilns and cannot be considered to be representative for all unit types that combust processed C&D wood ( i.e., some boilers cannot burn coal depending upon feed systems or boiler design type) and therefore, was not analyzed for this final rule. A case-by-case comparison, however, can be made using traditional fuels such as coke and coal if the combustion unit is designed to burn these materials and if the concentrations of contaminants are found to be comparable to or less than those present in C&D wood, then the contaminant criterion would be met. As first presented in the April 14, 2014 proposed rule (79 FR 21013-14), summary results for the contaminant comparisons are provided in Table 1 of this preamble, with the contaminants most likely to be present in unprocessed C&D debris listed first. The Agency finds that they support the final determination that processed C&D wood meets the contaminant legitimacy criterion, with the appropriate qualifications as noted below. Specifically, arsenic and chromium are present due to CCA-treated wood; lead due to lead-based paint chips; mercury due to light bulbs, ballasts, thermostats and other mercury-containing devices present in buildings; chlorine due to PVC and other plastics; sulfur due to plaster or drywall containing gypsum, a sulfate mineral; formaldehyde due to resinated wood; and pentachlorophenol due to utility poles and other treated wood products currently accepted by some combustion facilities. Although sources of fluorine in C&D debris are less clear, the contaminant's presence may be due to its use in flame retardants incorporated into carpet, furniture, and other building materials. Table 1—Comparison of Contaminants in Clean Wood/Biomass and Processed C&D Wood 32 33 34 Contaminant Clean Wood/Biomass Range Processed C&D Wood # samples Average 90% UPL Maximum Contaminants Most Likely To Be Present in C&D Debris Arsenic ND—298 n = 221 35.9 91.8 261 Chromium ND—340 n = 212 45.0 116 283 Lead ND—340 n = 224 53.9 136 482 Mercury ND—1.1 n = 180 0.1 0.16 0.7 Chlorine ND—5400 n = 173 809 1,567 3,521 Fluorine ND—300 n = 86 45.9 139 313 Sulfur ND—8700 n = 183 1,300 2,200 7,300 Formaldehyde 1.6—27 n = 45 47.6 104.2 176.8 Pentachlorophenol ND n = 21 19.7 N/A 126 Contaminants Less Likely To Be Present in C&D Debris Antimony ND—26 n = 50 2.6 7.1 16.6 Beryllium ND—10 n = 50 0.1 0.23 0.3 Cadmium ND—17 n = 107 0.3 0.53 1.3 Cobalt ND—213 n = 50 1.1 2.1 3.5 Manganese ND—15800 n = 50 78.8 115 180 Nickel ND—540 n = 50 4.0 8.6 27.4 Selenium ND—9 n = 43 0.4 1.0 1.3 Nitrogen 200—39500 n = 75 3,900 8,000 12,600 32 Sources: Clean Wood/Biomass ranges taken from a combination of EPA data and literature sources, as presented in EPA document Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at www.epa.gov/epawaste/nonhaz/define/index.htm. Processed C&D Wood data from April 26, 2013, submittal by Susan Bodine on behalf of BPA and CMRA, available in the Docket at EPA-HQ-RCRA-2013-0110. 33 All units expressed in parts per million (ppm) on a dry weight basis. 34 Upper Prediction Limit (UPL) calculations were made by commenters using EPA's ProUCL software, using either a lognormal distribution or nonparametric statistics, as appropriate. With the exception of four contaminants—fluorine, lead, formaldehyde and pentachlorophenol, every sample of processed C&D wood's contaminant levels was well within the range of clean wood and biomass materials. With respect to these four contaminants: • Fluorine: This contaminant was first discussed in the proposal at 79 FR 21014. While only one sample out of 45 samples of processed C&D wood exceed the range for fluorine in clean wood and biomass, the Agency still considers fluorine to be at levels comparable to those found in clean wood and biomass since this lone sample is present within a small acceptable range ( i.e., 313 ppm is comparable to 300 ppm). 35 36 Thus, the final rule does not include controls specific to fluorine. 35 76 FR 15523-24, March 21, 2011. 36 In addition to determining that the one sample of fluorine is within a small acceptable range, one can consider that the Upper Prediction Limit (UPL) for fluorine in processed C&D wood, when calculated at a 90 percent confidence level based on all 45 samples (139 ppm), is well within the range of clean wood and biomass materials. The UPL taken at a 90 percent confidence level yields a number ( i.e., 139 ppm), and in the context of analyzing contaminant samples, persons can be confident that the next sample taken will be at or below that number 90 percent of the time. • Lead: As first discussed in the proposal at 79 FR 21014-15, April 14, 2014, despite efforts by C&D processing facilities to remove lead, the data demonstrate that some processing facilities do a better job than others, with isolated samples from Massachusetts reaching 407 and 437 ppm lead, and one of seven samples from Wisconsin reaching 482 ppm lead. While most of the 224 samples detected lead within the range found in clean wood and biomass materials (ND-340 ppm), it is important to recognize that each high sample could represent a large amount of processed C&D wood produced by an outlier facility. Accordingly, an overly broad categorical non-waste listing could include processed C&D wood from facilities where the final product consistently contains high lead levels, amounts that would not be considered a normal part of clean wood or biomass. In this instance, one facility in Massachusetts provided a composite sample for each of seven days, and two out the seven samples exceeded the range of lead values found in clean wood and biomass. That could mean more than 28 percent of the processed C&D wood produced by that facility exceeds lead levels found in clean wood and biomass. C&D processing facilities have options for eliminating lead in the processed C&D wood they produce, and information submitted with the contaminant dataset shows that the two facilities (one in Massachusetts, the other in Wisconsin) exhibiting the highest lead levels shared similar lead elimination strategies. Although both facilities accept painted wood, neither uses X-ray Fluorescence (XRF) analyzers to detect and remove lead-based painted wood. Nor do they require documentation of a building inspection that includes testing for lead-based paint. By comparison, the Washington facility included in the dataset requires documentation of XRF testing before accepting demolition debris from a particular building, and as evidenced by a maximum lead concentration of 26 ppm, lead concentrations in the processed C&D wood it burns tested lower than for any other facility in the dataset. The Minnesota facility included in the dataset does not accept painted wood, and as evidenced by a maximum lead concentration of 110 ppm, lead concentrations in the processed C&D wood it burns are also well within the range of clean wood and biomass materials. Both the Massachusetts facility and the Wisconsin facility relied solely on removing “fines” to control lead levels. Fines are small-sized particles that may contain relatively high concentrations of contaminants, and facilities can remove them before and after shredding via screens or flotation. The Agency does not dispute that the removal of fine particles can reduce the levels of lead and other contaminants, particularly for C&D processing facilities using negative sorting. Without additional measures, however, this strategy does not remove sufficient lead to transform the C&D debris into a product fuel in all cases that would warrant processed C&D wood being categorically listed as a non-waste fuel. Thus, the Agency had proposed conditions related to lead elimination as part of the categorical non-waste listing for processed C&D wood. The proposed conditions were: —Facilities using positive sorting must either: (1) Exclude painted wood via the sorting process by selecting only unpainted wood from incoming C&D debris for further processing, (2) use XRF to ensure that painted wood included in the final product fuel does not contain lead-based paint, or (3) require documentation that a building has been tested for and does not include lead-based paint before accepting demolition debris from that building. —Facilities using negative sorting must remove fine particles, which may include asbestos fibers and other contaminants in addition to lead, and they must also either: (1) Remove painted wood via the sorting process, (2) use XRF to detect and remove lead-painted wood, or (3) require documentation that a building has been tested for and does not include lead-based paint before accepting demolition debris from that building. No additional data were received in response to the proposed measures to eliminate lead that warrant removal of the conditions or their options for the final listing. However, as discussed earlier in section V.A.3. of this preamble, three changes have been made to the proposed regulatory language: (1) Positive sorting has been revised to include processors that receive pre-sorted wood from positive sorting entities to clarify that these processors are not negative sorters for purposes of identifying which lead elimination requirements are applicable; (2) the word “all” has been added to clarify that both positive and negative sorters must exclude or remove all painted wood from incoming debris; and (3) the parenthetical language: “to the extent that only de minimis quantities inherent to processing limitations may remain” has been added to both 40 CFR 241.4(a)(5)(i)(A) and (ii)(A) to reflect the Agency's position on de minimis amounts. Based on all information regarding the presence of lead in processed C&D wood, the Agency has determined that the proposed conditions are necessary to ensure that lead levels in processed C&D wood are comparable to or lower than lead levels present in clean wood and biomass. Consistent with the proposal, the Agency has finalized conditions designed to eliminate lead, with the minor changes as noted above. See the final regulatory language at 40 CFR 241.4(a)(5)(i) and (ii). • Pentachlorophenol: The following was first discussed in the proposal at 79 FR 21015. The presence of pentachlorophenol in some processed C&D wood results from processors either choosing to include industrial wood products treated with pentachlorophenol in their product fuel (in the case of positive sorting) or from processors not removing those same industrial wood products from C&D debris (in the case of negative sorting) prior to the final grinding step. The EPA restricted the use and sale of pentachlorophenol in 1987, with no registered residential uses allowed for the past 26 years. As stated in the proposal, the Agency believed that the pentachlorophenol concentrations in processed C&D wood were a direct result of easily identified wood products, predominantly utility poles, that processing facilities can choose to exclude or remove prior to grinding recovered C&D wood. 37 Therefore, under the proposed regulatory conditions, processing facilities must exclude or remove these known sources of pentachlorophenol from their final product fuel to qualify for the categorical non-waste listing. 37 Based on discussions with plant staff during an EPA tour of Industrial Disposal Services, Inc. Broad Run Recycling facility in Manassas, Virginia on May 23, 2013. The facility processes discarded C&D wood into a product fuel. Information submitted in response to the proposed rule affirm that the pentachlorophenol concentrations in processed C&D wood are a direct result of easily identified wood products, predominantly utility poles, that processing facilities can choose to exclude or remove prior to grinding recovered C&D wood. 38 Because sources of pentachlorophenol can be readily identified by color and by shape of the treated wood, no additional conditions other than those specified by the best management practices are necessary. Thus, to ensure that pentachlorophenol levels in processed C&D wood are comparable to or lower than clean wood and biomass, the Agency is requiring that pentachlorophenol treated wood be excluded or removed from incoming C&D debris. See 40 CFR 241.4(a)(5). The Agency sees no reason to change the determination expressed in the proposed rule and adopts it for the final rule. 38 See comments from AF&PA (0076.1), DTE Energy Services (0083.1), and NTH Consultants LTD for CMS Enterprises (0100) in docket ID: EPA-HQ-RCRA-2013-0110. • Formaldehyde: The proposal first discussed this contaminant at 79 FR 21015, April 14, 2014. For C&D debris processed pursuant to best management practices, inclusive of the regulatory conditions presented in the proposal, formaldehyde (present in concentrations as high as 176.8 ppm versus 27 ppm in clean wood/biomass) is the only remaining contaminant that raised questions as to whether it meets the contaminant legitimacy criterion. Again, the Agency emphasizes that, although the situation appears similar to the categorical non-waste listing for resinated wood in 40 CFR 241.4(a)(2), details surrounding use of the two NHSMs as fuel are not the same. In the case of resinated wood, as defined in 40 CFR 241.2, the Agency determined that energy recovered from the combustion of manufacturing process residues and off-specification resinated wood is integrally tied to the industrial production process. The equivalent for C&D wood would be sawmills reliant on recovering energy from sawdust and off-specification lumber to power the construction lumber production process. Sawmills may do this, but that is not the scenario commenters have described in response to the December 23, 2011 (76 FR 80451) proposed rule and for which the Agency has evaluated. While EPA disagreed with petitioners' claims that resinated wood components in C&D debris are categorical non-wastes and the corollary that formaldehyde concentrations are therefore irrelevant, the Agency agreed in the proposal that additional factors were worth considering in determining whether to list processed C&D wood categorically as a non-waste fuel. First, formaldehyde concentrations in processed C&D wood may reach 176.8 ppm, but are lower than in pure resinated wood, which may reach 200 ppm. National rules developed by the CARB Composite Wood ATCM, per Public Law 111-199, will ensure that newly produced resinated wood will contain even less formaldehyde in the future by setting limits on how much formaldehyde may be released. 39 Second and more importantly, for many combustors, processed C&D wood scraps that include resinated wood components actually have added value and are either selected for (in the case of positive sorting) or specifically not removed (in the case of negative sorting) because the wood has been kiln-dried prior to use in construction. Kiln-dried wood has a greater heating value than virgin wood, almost double in some cases. Kiln-dried wood also has more consistent moisture content; an equally important benefit to combustors because a consistent fuel improves combustion efficiency and leads to reduced emissions of particulate matter, carbon monoxide, and other organic hazardous air pollutants. 39 On May 29, 2013, EPA proposed two rules to protect the public from the risks associated with exposure to formaldehyde. 78 FR 34796, 78 FR 34820. The proposals would implement the Formaldehyde Standards for Composite Wood Products Act (Title VI of the Toxic Substances Control Act): One will implement the Act's emission standards and the other will ensure products meet the TSCA formaldehyde emission standards. See http://www.epa.gov/oppt/chemtest/formaldehyde/. The Agency has determined that the additional factors discussed in the proposal are appropriate for determining whether the resinated wood in certain limited circumstances is actually a product fuel. As a result, in the final rule the Agency allows resinated wood to remain in C&D wood prior to processing for this categorical non-waste listing. This determination is based partially on the fact that future rules will limit levels of formaldehyde in wood products and will, in effect, also reduce the levels of formaldehyde in processed C&D wood. Principally, the Agency's determination is based on information submitted to the Agency showing that some processors choose to include resinated wood in processed C&D wood based on combustor specifications for a higher Btu value fuel, which demonstrates that resinated wood is a valuable product fuel and is not burned for destruction. The Agency maintains that the benefits of burning kiln-dried wood not only provides higher heating value, but also more consistent moisture content which lends to more efficient combustion and, thus, reduced emissions of certain contaminants. The final rule, therefore, allows processors to choose whether they will exclude or remove any resinated wood and still be permitted to be within the categorical non-waste listing for C&D debris. This does not mean, however, that all resinated wood is considered a non-waste fuel. The Agency has found that resinated wood is a non-waste fuel in the furniture industry because of particular circumstances in that industry, and in this case for C&D wood due to the extraction of fuel value as a result of the kiln-dried properties of that wood. In other circumstances, a case-by-case determination would need to be made. 5. Summary of Comments Requested The proposed rule identified several issues pertaining to the listing of C&D wood as categorical non-wastes and requested comment on those issues as follows. Processing Techniques for lead and pentachlorophenol. The Agency requested comment on the efficacy of specific processing techniques related to lead, as well as the feasibility of reducing pentachlorophenol concentrations in processed C&D wood by excluding or removing utility poles and other industrial wood products known to be treated with the chemical. See 79 FR 21015, April 14, 2014. Please refer to section V.A.4.b.iii of this preamble for the Agency's final determination and supporting rationale. Formaldehyde levels. The Agency sought comment on the decision to balance elevated formaldehyde levels with the greater heating value and more consistent moisture content that resinated wood components lend to processed C&D wood, rather than specifically requiring that resinated wood be excluded or removed from C&D debris as part of the best management practices. See 79 FR 21015-16. Please refer to section V.A.4.b.iii of this preamble for the Agency's final determination and supporting rationale. CCA-treated wood. As proposed at 79 FR 21016, CCA-treated wood was to be excluded or removed from C&D debris. Although the data submitted to the Agency indicated that arsenic and chromium concentrations in processed C&D wood are comparable to levels found in traditional fuels, there was concern that because a majority of CCA-treated wood is still in use, an increase in the amount of CCA-treated wood in C&D debris can be expected in the future. Currently, CCA-treated wood can represent up to 30 percent of the C&D wood waste stream. 40 The concern was further compounded by the reality that visual identification of CCA-treated wood is at times very difficult, especially when the wood is weathered, dirty, painted, or if the wood is characterized by low retention levels. 41 40 Fattah, Hassan Abdel, et al. “Online Sorting of Recovered Wood Waste Using Automated X-Ray Technology” Final Report; November 30, 2009. See p. 2. Available in EPA-HQ-RCRA-2013-0110. 41 Blassino, Monika, et al. “Methods to control Fuel Quality at Wood Burning Facilities.” Available in EPA-HQ-RCRA-2013-0110-0033. One pilot study conducted in the state of Florida showed that visual sorting of CCA-treated wood at three different facilities produced differing results of success. The two facilities with the greatest success, which correctly identified 89 percent and 90 percent of the pre-sorted wood as untreated wood, had provided extensive training to its employees. The third facility correctly identified 60 percent as untreated wood, as evidenced by little or no training. Given the variability in visually identifying untreated versus treated wood, augmenting technologies have been developed to detect the presence of arsenic, copper, and chromium, as well as other contaminants. Studies have concluded that the use of stains ( e.g., PAN Indicator Stain 42 ) and X-ray Florescence (XRF) technology are the most promising technologies, with chemical stains being suitable for sorting small quantities of wood and XRF technology being better suited for sorting large quantities of wood. 42 PAN stands for the chemical name of 1-(2-pyridylazo)-2-naphthol, an orange-red solid with a molecular formula C15H11N3O. It is used to determine the presence of almost all metals excluding alkali metals. The stain is not specific to arsenic within CCA. It reacts with the copper, so that wood treated with any copper-based preservative will also test positive using this stain. Again, the Agency's concern was based on anticipated increases of CCA-treated wood in C&D debris, as well as the accuracy of visual sorting among C&D processors. Therefore, the Agency had requested comment on the viability of either requiring, as best management practices, C&D processors to implement formal training programs that emphasize sorting treated wood from untreated wood or the use of XRF technology or PAN indicator stains to provide greater certainty that CCA-treated wood is removed from the processed C&D wood. After considering the information in the record, including comments received, the Agency has determined that CCA-treated wood must be excluded or removed from C&D debris, by trained operators, to ensure that levels of arsenic and chromium in processed C&D wood remain comparable to or lower than levels in clean wood and biomass. Unlike formaldehyde levels which are expected to decrease over time, levels of arsenic and chromium are expected to increase with continued use of CCA-treated lumber or other copper, chromium, or arsenical preservatives. The Agency's decision to require that operators be trained to exclude or remove treated wood (with the exception of resinated wood) as part of the best management practices, is based in part on the results from the Florida pilot study which showed a high rate of success when extensive training was provided for visual identification of treated wood; and in part because both XRF technology and PAN indicator stains are limited in application when processing large amounts of C&D debris. The evidence demonstrates that processors who train their employees to visually recognize treated wood are successful in excluding or removing CCA-treated wood. 43 Therefore, by requiring processors to train their operators as part of this categorical non-waste listing, it will further ensure that levels of arsenic and chromium in processed C&D wood remain comparable to or lower than levels in clean wood and biomass as more CCA-treated wood is introduced into C&D debris. 43 Blassino, Monika, et al. “Methods to Control Fuel Quality at Wood Burning Facilities.” EPA-HQ-RCRA-2013-0110-0033. Disaster Debris. The definition for C&D wood as proposed did not include disaster debris. The Agency had defined “clean cellulosic biomass” to include clean wood found in disaster debris. 44 However, disaster debris wood that is mixed with contaminated materials ( e.g., lead-based painted wood, asbestos containing materials, etc.) had not been specifically addressed. The Agency noted in the proposal that management of disaster debris is more expedited and less controlled and thus, prone to include contaminants that might otherwise be sorted out prior to processing. 45 In light of these concerns, the Agency requested comment on the appropriateness of including wood that is recovered from disaster debris, but that is mixed with other contaminated materials prior to arrival at the processing facility, as processed C&D wood. Thus, the Agency requested that commenters provide any data or information to demonstrate that mixed disaster debris wood, once processed, produces wood that contains contaminants comparable to or lower than biomass and virgin wood. Further, the EPA also requested comment on whether other conditions imposed by contingency plans, for example, can facilitate the removal of contaminated material found in disaster debris. 44 76 FR 15478 (March 21, 2011); codified at 40 CFR 241.2. 45 Management of disaster debris can involve significantly greater volumes. For example, prior to the 1994 Northridge earthquake in Los Angeles, one local company processed 150 tons of C&D debris per day. After the earthquake, the city picked up as much as 10,000 tons of C&D debris per day. The Agency finds that the concerns as expressed in the proposal would only be relevant if the best management practices, as finalized in this rule, are not followed. As discussed previously in the section on processing (See section V.A.4.a.i. of this preamble), the best management practices ensure that the contaminants in the fuel that is burned will not be unpredictable regardless of the source of the wood, or even the quantity of wood to be processed. In other words, processors that comply with the best management practices for this listing would not be altering the way in which they process the debris. Should a processor choose to hire and train additional sorters or extend operational hours to process higher volumes, the limiting factors that will continue to ensure the quality of the processed material are the best management practices and training and certification requirements. (For additional discussion on handling practices, refer to section V.A.3. of this preamble.) Thus, clean wood from natural disaster debris that is mixed with other materials and is delivered to a processing facility has been added to the definition of C&D wood. However, the disaster debris must be processed in the same manner as C&D wood recovered from demolition activities to qualify for the categorical non-waste listing. Trained operators. As presented in the proposal at 79 FR 21016, best management practices require sorting by “trained operators” to remove or exclude all non-wood debris, certain treated wood, and lead-based painted wood from the final product fuel. The Agency noted that operators who are trained to sort C&D debris, especially to recognize treated wood, play an important role in reducing contaminant levels in the final product fuel. Therefore, comment was requested on whether the Agency should require C&D processors to have formal training programs in place as part of the best management practices, as well as whether processors should be required to keep records as a condition of the categorical listing to demonstrate that such operators have been formally trained. In the proposal, the Agency did not prescribe what a training program could include due to several factors that contribute to variability within the C&D processing industry. Certain factors such as where the C&D debris originates from and the amount of sorting prior to arrival at the processing facility can influence the extent and type of contaminated material arriving at the processing facility. Also, whether positive or negative sorting is used and the scale of the processing facility ( i.e., the degree of sorting and screening devices) are variable within the industry. Thus, the Agency sought comment on whether to require processors to have formal training programs, and if so, requirements that would be flexible enough to address the variability of the incoming C&D debris, but also provide additional assurance that C&D processing facilities would produce a non-waste product fuel with contaminants that are comparable to or lower than clean wood/biomass. For this final listing, the Agency is not prescribing the elements of a training program and maintains that flexibility is necessary to address the variability within the industry. However, the Agency is finalizing a requirement for processors to train their operators in accordance with the best management practices. The Agency did not include a specific training requirement for processors because it had intended to rely on a written certification as a means for processors to show that they had used “trained” operators. After further consideration, the Agency finds that this approach does not provide any assurance that the processor is conducting the necessary training in order to ensure that the resultant material is not discarded when combusted and is, therefore, not a waste. Although the written certification, as proposed and finalized in this rule, is intended to confirm that the processed C&D wood has been sorted by “trained” operators in accordance with best management practices, it does not require any evidence that training has taken place, nor does it hold the processor accountable. Thus, a mechanism is necessary to document when the training has been conducted so that processors are accountable to their customers when certifying that they have used trained operators. This mechanism is implemented via new regulatory language at 40 CFR 241.4(a)(5)(iii) which states that “[p]rocessors must train operators to exclude or remove the materials as listed in paragraph (a)(5) of this section from the final product fuel. Records of training must include dates of training held and must be maintained for a period of three years.” The training requirement serves as an additional condition of this categorical non-waste listing. This condition is applicable only to the final processor, because it is ensuring that processing has transformed the processed C&D wood into a non-waste product fuel according to best management practices before providing it to the combustor, and the final processor is responsible for meeting individual combustor specifications. However, it is important to note that the C&D materials at the intermediate processor facilities would still be solid wastes. Written Certification. As proposed at 79 FR 21016, the combustor would need to obtain a written certification from the C&D processor that the C&D wood has been processed by trained operators in accordance with best management practices. The Agency proposed that the written certification could take the form of a contract, purchase agreement, or other document that requires the supplier to process the C&D wood according to combustor specifications and best management practices. It was the Agency's understanding that purchase agreements and contracts are common between a processor/supplier and combustor. Thus, comment was requested on whether such agreements and contracts are sufficient documentation ( i.e., can serve as the written certification) or if a written certification statement developed specifically to address the requirements in the proposal would be clearer and more effective. The Agency noted that the existing record keeping requirements for combustors that combust NHSMs as fuels listed under 40 CFR 241.4, 46 would be appropriate for maintaining the certification. The purchase agreement, contract, or other document, would be considered a “record” which satisfies the record keeping requirements of 40 CFR 60.2740(u) (Emissions Guidelines) and 40 CFR 60.2175(w) (New Source Performance Standards) for CISWI units and 40 CFR 63.11225(c)(2)(ii) for area source boilers and 40 CFR 63.7555(d)(2) for major source boilers. 47 46 40 CFR 241.4 lists the categorical or “Non-waste determinations for specific non-hazardous secondary materials when used as a fuel.” 47 These sections state that “for operating units that combust non-hazardous secondary materials as fuel per 40 CFR 241.4, you must keep records documenting that the material is listed as a non-waste under 40 CFR 241.4(a).” The Agency has determined that a written certification statement developed specifically to address requirements of the categorical non-waste listing will provide independent assurance that processors are providing a legitimate product fuel to their customers. Although contracts and purchase agreements indicate a commitment to quality, specifications can vary according to the needs of one combustor versus another with respect to the extent and type of contaminant removal required. The contracts and purchase agreements that the EPA has seen do not show that C&D wood has been processed according to any particular best management practices, and consequently, cannot ensure that the resulting material is not a waste when combusted. The written certification statement is required only for the final processor, since it is responsible for ensuring that the final product fuel has been processed according to best management practices. Note that the materials at intermediate processor facilities would still be solid wastes. Therefore, this final rule requires combustors to obtain a written certification from the final processor for every new or modified contract, purchase agreement, or other legally binding document. This written certification statement must state that the processed C&D wood has been sorted by trained operators in accordance with best management practices. See the new requirements at 40 CFR 241.4(a)(5)(iv). 6. Response to Comments a. Definition of Construction and Demolition (C&D) Wood Comment: Commenters supported the inclusion of disaster debris in the definition of C&D wood, generally arguing that the definition already includes disaster debris because it does not distinguish between the demolition and dismantling of buildings by nature or man. Man-made demolition debris will not necessarily be distinguishable from debris created by nature. Managing wood from natural disasters requires the same processes used for [man-made] C&D debris. Although a natural disaster may increase the quantity of C&D wood available for processing, processors will follow the same practices in terms of material acceptance and processing. Where incoming material exceeds processing capacity and cannot be stored, the material will typically be landfilled. In addition, purchasers of processed C&D wood will continue to require material that meets or exceeds their specifications, so processors must continue to exert tight controls to avoid risking rejected materials. The [proposed] regulatory requirements for training and processing would still prevail. Accordingly, the EPA should amend the last sentence of the definition that addresses C&D wood from demolition activities to include “natural disasters.” Response: We agree that the definition of C&D wood should include the term “natural disaster” to represent activities resulting from natural disaster events. Accordingly, the Agency has revised the definition from the proposal so that the last sentence now reads “C&D wood from demolition activities results from dismantling buildings and other structures, removing materials during renovation, or from natural disasters.” Clean wood in disaster debris had been included in the definition for “clean cellulosic biomass” in a prior rulemaking. When clean wood is picked/sorted ( i.e., via positive sorting) from the disaster debris site and sent to a processor for chipping and grinding, it is considered clean cellulosic biomass, which is a traditional fuel. However, the Agency had not addressed clean wood from disaster debris that is mixed with contaminated materials which could include other types of treated wood, drywall, plastics, concrete and so forth, that is delivered to a processing facility. When clean wood from disaster debris is not picked/sorted prior to arrival at a processing facility, it is no different than C&D debris and thus, must be processed in the same manner to qualify for this categorical non-waste listing. The proposal expressed concern regarding the management of disaster debris prior to processing, such that due to the circumstances, large quantities of debris would need to be managed expeditiously, and consequently may contain more contaminated materials that would have been typically sorted out prior to arrival at a processing facility. However, after considering the comments and evidence in the record, the Agency finds that these concerns regarding the management of large volumes of material in an expeditious nature, would only be relevant if the best management practices as finalized in this rule, are not used to process wood from natural disaster debris. The best management practices set forth in this rule are sufficient to ensure that natural disaster debris is handled and processed in the same manner as other C&D debris, regardless of the source or quantity of material to be processed. In other words, processors that comply with the best management practices for this listing would not be altering the way in which they process the debris. Should a processor choose to hire and train additional sorters or extend operational hours to process higher volumes, the limiting factors in this rule that will continue to ensure the quality of the processed material are the best management practices and training and certification requirements. Further, the information provided to the Agency shows that when the incoming material exceeds processing capacity, the excess material is stored or sent to a landfill. Given the best management practices and information indicating the typical handling of excess material, the Agency has determined that it is appropriate to include disaster debris in the definition of C&D wood. Thus, clean wood from natural disaster debris that is mixed with other materials and is delivered to a processing facility has been added to the definition of C&D wood. However, the natural disaster debris must be processed in the same manner as C&D wood recovered from C&D activities to qualify for this categorical non-waste listing. Comment: The definition of C&D wood should be expanded with respect to the sources of wood generated from construction activities. As proposed, the second sentence of the definition states “C&D wood from construction activities results from cutting wood down to size during installation or from purchasing more wood than a project ultimately requires.” This sentence may be too prescriptive, since wood can also be generated from incorrectly cut wood, wood used for concrete forms, wood used for support braces, and other uses which render the wood unsuitable for installation. Response: The definition of C&D wood as applied to construction activities was not intended to be limited to a specific installation activity ( i.e., cutting wood down to size). The Agency, however, understands that it may be read to be prescriptive. To address any ambiguity, the Agency has revised the second sentence for construction and demolition (C&D) wood at 40 CFR 241.2 with the following, “C&D wood from construction activities results from wood generated during any installation activities or from purchasing more wood than a project ultimately requires.” Thus the definition is not limited to “cutting wood down to size” but allows any waste wood generated at any time during installation to be considered construction debris. Although the revision does not specifically list the specific installation activities as suggested, it now acknowledges that there are a number of different ways that construction activities can generate wood without limiting applicable activities by specifically listing them in the definition. b. Contaminant Comparison Criterion Comment: Changes should be made to the method for comparing contaminant levels in processed C&D wood. Rather than comparing the constituents of concern to virgin wood or biomass, the Agency should consider establishing a standard based on analytical surveys of well-sorted C&D debris and use the test results as the standard. Also, specific contaminant levels need to be developed by the Agency to clearly define what a legitimate fuel product is that can be burned as a non-waste. Without a clearly defined set of contaminant levels, the rule will be very difficult to enforce. Response: We disagree that any modifications to the contaminant comparison legitimacy criterion should be made, particularly with respect to establishing what the Agency considers a “bright line” or even a numerical approach to setting levels for C&D wood. The issue is not that analytical surveys of well-sorted C&D debris establish a standard. Rather, the levels in the processed C&D wood must compare favorably to the traditional fuels that it replaces. The rationale for comparison of a NHSM's contaminant concentrations to the traditional fuels which the combustion unit is designed to burn is explained in several related rulemakings. 48 48 74 FR 54 (January 2, 2009), 75 FR 31883 (June 4, 2010), and 76 FR 15526 (March 21, 2011). The Agency disagrees with the suggestion to develop specific contaminant levels. We previously said that if we were to consider such an approach, the Agency would have to establish a line for what is acceptable and the line may either be somewhat arbitrary or it may exclude materials that, if carefully considered, should be considered legitimate. On the other hand, case-by-case comparisons by each person evaluating this legitimacy criterion can take into account the wide variety of NHSMs, as well as the appropriate traditional fuel to which it is being compared. Because this factor must apply to various different recycling activities and industries, the case-by-case approach is most appropriate. 49 Thus, an NHSM must contain contaminants at levels that are comparable to or lower than the range provided for the traditional fuel on a case-by case basis to qualify as a product fuel. 49 76 FR 15525-26. In the case of a categorical non-waste listing, the Agency may list a specific NHSM when it has determined that the NHSM has not been previously discarded, or if discarded, has been sufficiently processed, and is legitimately used as a product fuel. When an NHSM is listed as a categorical non-waste, persons that generate or burn processed C&D wood will not need to make individual ( i.e., case-by-case) determinations that it meets the legitimacy criteria (see 79 FR 21009). Specifically for C&D wood, the Agency has evaluated all data and information and has determined that C&D wood processed according to best management practices is transformed into a legitimate product fuel and is appropriately listed as a categorical non-waste. Thus, a case-by-case comparison of contaminant levels in processed C&D wood to clean wood/biomass is not required for C&D wood processed according to best management practices. However, if the processing of C&D wood is found to be in non-compliance with conditions of this listing, the combustor may face enforcement action. c. Construction and Demolition (C&D) Wood Processed From C&D Debris According to Best Management Practices Comment: C&D wood should be regulated as a solid waste because it is discarded similar to scrap tires. Response: The Agency agrees that a discarded NHSM is a solid waste first. However, the commenters make an incorrect comparison between C&D wood and scrap tires. In the March 21, 2011 final rule, the Agency stated that “. . . a system where scrap tires are removed from vehicles and are collected and managed under the oversight of established tire collection programs are not discarded in the first instance . . . [t]hese programs ensure that the tires are not discarded en route to the combustor for use as a fuel and are handled as a valuable commodity . . .” 50 In this case, the commenters did not acknowledge the Agency's previous determination that not all scrap tires are discarded. Moreover, the Agency later finalized a categorical non-waste listing for scrap tires that are not discarded. See the final rule in the Federal Register at 78 FR 9154, February 7, 2013, and 40 CFR 241.4. 50 See 76 FR 15491-92. Contrary to scrap tires, mixed C&D debris ( i.e., it is not composed of only clean cellulosic biomass) is discarded in all instances and must be processed sufficiently to transform the resulting C&D wood into a legitimate non-waste fuel. This is unlike scrap tires, where only the scrap tires that have been discarded must be processed to become a non-waste fuel. The Agency has discussed its position on processing of discarded secondary materials at length in the March 21, 2011 final rule. For discarded secondary materials, when sufficient processing has been performed and if the resulting material meets the legitimacy criteria, the fuel or ingredient product would be considered a non-waste material (76 FR 15475-76, March 21, 2011). The Agency has determined previously that C&D debris can be processed to transform the C&D wood into a product fuel that meets the legitimacy criteria (76 FR 15485, March 21, 2011 and 78 FR 9138, February 7, 2013). Further, the Agency has determined that processed C&D wood is appropriately listed as a categorical non-waste when specific conditions are met which are: conducting processing according to best management practices, conducting training, and providing a written certification. These conditions are designed to ensure that the resulting C&D wood is a non-waste product fuel. Comment: The EPA's March 21, 2011 document “Identification of non-hazardous secondary materials that are solid waste” states that when C&D is sorted, painted wood is removed. This is misleading and is not the case. Painted and contaminated wood is routinely burned as evidenced by an interview at a processing facility where the plant manager stated that the “positive pick” process did not remove painted wood from the line and by a photograph of the same facility's processed C&D wood containing painted wood. In addition, another processing facility whose product fuel is reported to consist of forest industry waste, shredded construction wood waste, and demolition debris also contains significant amounts of paper, plastic, and foreign debris. Response: The commenter misconstrues the Agency's discussion of processed C&D wood in the final rule at 76 FR 15485, March 21, 2011. When describing how contaminated C&D wood can become a non-waste product fuel, the Agency stated that “C&D-derived wood is typically sorted to remove contaminants ( e.g., lead-painted wood, treated wood, non-wood materials), and size reduced prior to burning, producing material that likely meets the processing and legitimacy criteria for contaminants.” Nothing in this statement specifically says that painted wood is removed through the sorting process. Furthermore, the Agency notes that not all painted wood is lead-based and thus, does not present the same contaminant concerns. The Agency is concerned however, that lead painted wood and fines containing lead can contribute to elevated levels of lead in processed C&D wood. Thus, the Agency proposed and has finalized in this rule certain best management practices designed to eliminate sources of lead in processed C&D wood. C&D processors have options for excluding (positive sorting) or removing (negative sorting) sources of lead: Excluding or removing all painted wood from the incoming material, using X-ray Fluorescence to detect and exclude or remove lead-painted wood from the product fuel, or requiring documentation that a building has been tested for and does not include lead-based paint before accepting the demolition debris. In addition, negative sorting facilities must also remove fines during processing. The Agency also agrees that other types of treated wood are often present in C&D debris. To address potentially elevated levels of other contaminants in treated wood, the Agency had proposed and has finalized in this rule best management practices to designed to eliminate specific types of treated wood from processed C&D wood. The best management practices require exclusion or removal of wood treated with creosote, pentachlorophenol, chromated copper arsenate, or other copper, chromium, or arsenical preservatives. In addition, the best management practices require exclusion or removal of non-wood materials such as plastics, drywall, concrete, aggregates, dirt and asbestos. See 40 CFR 241.4(a)(5). For a detailed discussion of the final best management practices, please refer to section V.A.3. of this preamble. Comment: The EPA must require testing for contamination. C&D as a waste fuel is extremely variable. “Slugs” of contaminated wood move through sorting facilities at various times. Response: The Agency agrees that C&D debris is extremely variable as a waste. Certain factors such as where the C&D debris originates from and the amount of sorting prior to arrival at the processing facility can influence the extent and type of contaminated material arriving at the processing facility. Also, whether positive or negative sorting is used and the scale of the processing facility ( i.e., the degree of sorting and screening devices) further contributes to variability within the industry. To address this variability, the Agency has finalized best management practices (see 40 CFR 241.4(a)(5)) for this categorical non-waste listing that require specific materials to be excluded or removed during processing. Also, as part of the best management practice requirements, C&D processors must certify that their processed C&D wood has been sorted by trained operators. 51 51 For a complete discussion of the certification and training requirements, see section V.A.3. of this preamble. These requirements are codified at 40 CFR 241.4(a)(5)(iii) and (iv). The best management practi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-01866. Public record. Not legal advice.