Additions to List of Categorical Non-Waste Fuels, 6687-6743 [2016-01866]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 81, Number 25 (Monday, February 8, 2016)]
[Rules and Regulations]
[Pages 6687-6743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01866]



[[Page 6687]]

Vol. 81

Monday,

No. 25

February 8, 2016

Part III





Environmental Protection Agency





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40 CFR Part 241





Additions to List of Categorical Non-Waste Fuels; Final Rule

Federal Register / Vol. 81 , No. 25 / Monday, February 8, 2016 / 
Rules and Regulations

[[Page 6688]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

[EPA-HQ-RCRA-2013-0110; FRL-9929-56-OLEM]
RIN-2050-AG74


Additions to List of Categorical Non-Waste Fuels

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
issuing amendments to the Non-Hazardous Secondary Materials rule, 
initially promulgated on March 21, 2011, and amended on February 7, 
2013, under the Resource Conservation and Recovery Act. The Non-
Hazardous Secondary Materials rule generally established standards and 
procedures for identifying whether non-hazardous secondary materials 
are solid wastes when used as fuels or ingredients in combustion units. 
In the February 2013 amendments, the EPA listed particular non-
hazardous secondary materials as ``categorical non-waste fuels'' 
provided certain conditions are met. Persons burning these non-
hazardous secondary materials do not need to evaluate them under the 
general case-by-case standards and procedures that would otherwise 
apply to non-hazardous secondary materials used in combustion units. 
This action adds three materials to the list of categorical non-waste 
fuels: Construction and demolition wood processed from construction and 
demolition debris according to best management practices; paper 
recycling residuals generated from the recycling of recovered paper, 
paperboard and corrugated containers and combusted by paper recycling 
mills whose boilers are designed to burn solid fuel; and creosote 
treated railroad ties that are processed and then combusted in the 
following types of units: Units designed to burn both biomass and fuel 
oil as part of normal operations and not solely as part of start-up or 
shut-down operations, and units at major source pulp and paper mills or 
power producers subject to 40 CFR part 63, subpart DDDDD that combust 
CTRT and had been designed to burn biomass and fuel oil, but are 
modified (e.g. oil delivery mechanisms are removed) in order to use 
natural gas instead of fuel oil, as part of normal operations and not 
solely as part of start-up or shut-down operations.

DATES: This rule is effective March 9, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-RCRA-2013-0110. All documents in the docket are 
listed on the https://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 https://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:

[[Page 6689]]



 Generators and Potential Users \a\ of the New Materials To Be Added to
                 the List of Categorical Non-Waste Fuels
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        Primary industry category or sub category            NAICS \b\
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Utilities...............................................             221
Construction of Buildings...............................             236
Site Preparation Contractors............................          238910
Manufacturing...........................................      31, 32, 33
Wood Product Manufacturing..............................             321
Sawmills................................................          321113
Wood Preservation (includes crosstie creosote treating).          321114
Pulp, Paper, and Paper Products.........................             322
Cement manufacturing....................................           32731
Railroads (includes line haul and short line)...........             482
Scenic and Sightseeing Transportation, Land (Includes:            487110
 Railroad, scenic and sightseeing)......................
Port and Harbor Operations (Used railroad ties).........          488310
Landscaping Services....................................          561730
Solid Waste Collection..................................          562111
Solid Waste Landfill....................................          562212
Solid Waste Combustors and Incinerators.................          562213
Marinas.................................................          713930
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\a\ Includes: Major Source Boilers, Area Source Boilers, and Solid Waste
  Incinerators.
\b\ NAICS--North American Industrial Classification System.

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

B. Why is the EPA taking this action?

    The Non-Hazardous Secondary Materials (NHSM) regulations at 40 CFR 
part 241 generally establish standards and procedures for identifying 
whether NHSMs are solid wastes when used as fuels or ingredients in 
combustion units. In the February 2013 amendments, the EPA listed 
particular NHSMs as ``categorical non-waste fuels'' provided certain 
conditions are met. Persons burning these NHSMs do not need to evaluate 
them under the general case-by-case standards and procedures that would 
otherwise apply to NHSMs used in combustion units. This action adds 
three materials to the list of categorical non-waste fuels: (1) 
Construction and demolition (C&D) wood processed from C&D debris 
according to best management practices, (2) paper recycling residuals 
generated from the recycling of recovered paper, paperboard and 
corrugated containers and combusted by paper recycling mills whose 
boilers are designed to burn solid fuels; and (3) creosote treated 
railroad ties that are processed and then combusted in the types of 
units described herein.
    Abbreviations and Acronyms. The following acronyms and 
abbreviations are used in this document.

ATCM Airborne Toxic Control Measure
BMP Best management practice
Btu British thermal unit
C&D Construction and demolition
CAA Clean Air Act
CARB California Air Resources Board
CBI Confidential business information
CCA Chromated copper arsenate
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incinerator
CTRT Cresosote-treated railroad tie
EPA U.S. Environmental Protection Agency
FR Federal Register
HAP Hazardous air pollutant
ICR Information collection request
MACT Maximum achievable control technology
NAICS North American Industrial Classification System
ND Non-detect
NESHAP National emission standards for hazardous air pollutants
NHSM Non-hazardous secondary material
OCC Old Corrugated Cardboard
OMB Office of Management and Budget
PAH Polycyclic aromatic hydrocarbons
ppm Parts per million
PRR Paper recycling residual
PVC Polyvinyl chloride
RCRA Resource Conservation and Recovery Act
RIN Regulatory information number
SBA Small Business Administration
SO2 Sulfur dioxide
SVOC Semi-volatile organic compound
TCLP Toxicity characteristic leaching procedure
UMRA Unfunded Mandates Reform Act
UPL Upper prediction limit
U.S.C. United States Code
VOC Volatile organic compound
XRF X-ray fluorescence

II. Statutory Authority

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

III. Introduction-Summary of Regulations Being Finalized

    Regulations concerning NHSMs used as fuels or ingredients in 
combustion units are codified in 40 CFR part 241.\1\ This action amends 
the part 241 regulations by adding three NHSMs to the list of 
categorical non-waste fuels codified in Sec.  241.4(a). These new 
categorical listings are for:
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    \1\ 40 CFR 241.2 defines non-hazardous secondary material as a 
secondary material that, when discarded, would not be identified as 
a hazardous waste under 40 CFR part 261.
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     Construction and demolition (C&D) wood processed from C&D 
debris according to best management practices.

[[Page 6690]]

     Paper recycling residuals generated from the recycling of 
recovered paper, paperboard and corrugated containers and combusted by 
paper recycling mills whose boilers are designed to burn solid fuel.
     Creosote treated railroad ties that are processed and then 
combusted in the following types of units: Units designed to burn both 
biomass and fuel oil as part of normal operations and not solely as 
part of start-up or shut-down operations, and units at major source 
pulp and paper mills or power producers \2\ subject to 40 CFR part 63, 
subpart DDDDD that combust CTRT and had been designed to burn biomass 
and fuel oil, but are modified (e.g. oil delivery mechanisms were 
removed) in order to use natural gas instead of fuel oil, as part of 
normal operations and not solely as part of start-up or shut-down 
operations.
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    \2\ 40 CFR 241.2 defines power producer as a boiler unit 
producing electricity for sale to the grid. The term does not 
include units meeting the definition of electricity generating unit 
under 40 CFR 63.10042 of the Utility Mercury and Air Toxics 
Standards rule.
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    (Refer to section V of this preamble or the regulatory text for a 
full description of the categorical listings).
    Determining whether a material is a solid waste is of particular 
importance as it relates to CAA section 129. That section states the 
term ``solid waste'' shall have the meaning ``established by the 
Administrator pursuant to the Solid Waste Disposal Act.'' Id at 
7429(g)(6). The Solid Waste Disposal Act, as amended, is commonly 
referred to as the Resource Conservation and Recovery Act or RCRA. If a 
material is a solid waste under RCRA, a combustion unit burning that 
material is required to meet the CAA section 129 emission standards for 
solid waste incineration units. If the material is not a solid waste, 
combustion units are required to meet the CAA section 112 emission 
standards for commercial, industrial, and institutional boilers or, if 
the combustion unit is a cement kiln, the CAA section 112 emissions 
standards for Portland cement kilns. Under CAA section 129, the term 
``solid waste incineration unit'' is defined, in pertinent part, to 
mean ``a distinct operating unit of any facility which combusts any 
solid waste material from commercial or industrial establishments . . 
.'' 42 U.S.C. 7429(g)(1). The courts have determined that the CAA 
unambiguously requires any unit that combusts ``any solid waste 
material at all''--regardless of whether the material is being burned 
for energy recovery--to be regulated as a solid waste incineration 
unit. See NRDC v. EPA (489 F.3d 1250 (D.C. Cir. 2007)).
    RCRA defines ``solid waste'' as ``. . . any garbage, refuse, sludge 
from a waste treatment plant, water supply treatment plant, or air 
pollution control facility and other discarded material . . . resulting 
from industrial, commercial, mining, and agricultural operations, and 
from community activities . . .'' (RCRA section 1004 (27) (emphasis 
added)). The key concept is that of ``discard'' and, in fact, this 
definition turns on the meaning of the phrase, ``other discarded 
material,'' since this term encompasses all other examples provided in 
the definition. In determining the meaning of discard, the courts have 
determined that the ordinary, plain English definition controls, i.e., 
discard means ``disposed of,'' ``thrown away'' or ``abandoned.'' See 
American Mining Congress v. EPA 824 F. 2d 1177 (D.C. Dir. 1987); see 76 
FR 15460 for a detailed discussion on the RCRA definition of solid 
waste and CAA section 129.

IV. Background

A. History of the NHSM Rulemakings

    The Agency first solicited comments on how the RCRA definition of 
solid waste should apply to NHSMs when used as fuels or ingredients in 
combustion units in an advanced notice of proposed rulemaking (ANPRM), 
which was published in the Federal Register on January 2, 2009 (74 FR 
41). We then published an NHSM proposed rule on June 4, 2010 (75 FR 
31844), which the EPA made final on March 21, 2011 (76 FR 15456).
    In the March 21, 2011 rule, the EPA finalized standards and 
procedures to be used to identify whether NHSMs are solid wastes when 
used as fuels or ingredients in combustion units. ``Secondary 
material'' was defined for the purposes of that rulemaking as any 
material that is not the primary product of a manufacturing or 
commercial process, and can include post-consumer material, off-
specification commercial chemical products or manufacturing chemical 
intermediates, post-industrial material, and scrap (codified in 40 CFR 
241.2). ``Non-hazardous secondary material'' is a secondary material 
that, when discarded, would not be identified as a hazardous waste 
under 40 CFR part 261 (codified in 40 CFR 241.2). Traditional fuels, 
including historically managed traditional fuels (e.g., coal, oil, 
natural gas) and ``alternative'' traditional fuels (e.g., clean 
cellulosic biomass) are not secondary materials and thus, are not solid 
wastes under the rule unless discarded.
    A key concept under the March 21, 2011 rule is that NHSMs used as 
non-waste fuels in combustion units must meet the legitimacy criteria 
specified in 40 CFR 241.3(d)(1). Application of the legitimacy criteria 
helps ensure that the fuel product is being legitimately and 
beneficially used and not simply being discarded through combustion 
(i.e., via sham recycling). To meet the legitimacy criteria, the NHSM 
must be managed as a valuable commodity, have a meaningful heating 
value and be used as a fuel in a combustion unit that recovers energy, 
and contain contaminants or groups of contaminants at concentrations 
comparable to (or lower than) those in traditional fuels which the 
combustion unit is designed to burn.
    Based on these criteria, the March 21, 2011 rule identified the 
following NHSMs as not being solid wastes:
     The NHSM is used as a fuel and remains under the control 
of the generator (whether at the site of generation or another site the 
generator has control over) that meets the legitimacy criteria (40 CFR 
241.3(b)(1));
     The NHSM is used as an ingredient in a manufacturing 
process (whether by the generator or outside the control of the 
generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));
     Discarded NHSM has been sufficiently processed to produce 
a fuel or ingredient that meets the legitimacy criteria (40 CFR 
241.3(b)(4)); or
     Through a case-by-case petition process, it has been 
determined that the NHSM handled outside the control of the generator 
has not been discarded and is indistinguishable in all relevant aspects 
from a fuel product, and meets the legitimacy criteria (40 CFR 
241.3(c)).
    In October 2011, the Agency announced it would be initiating a new 
rulemaking proceeding to revise certain aspects of the NHSM rule.\3\ On 
February 7, 2013, the EPA published a final rule, which addressed 
specific targeted amendments and clarifications to the 40 CFR part 241 
regulations (78 FR 9112). These revisions and clarifications were 
limited to certain issues on which the Agency had received new 
information, as well as targeted revisions that the Agency believed 
were appropriate in order to allow implementation of the rule as the 
EPA originally intended. The amendments modified 40 CFR 241.2

[[Page 6691]]

and 241.3, added 40 CFR 241.4, and included the following: \4\
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    \3\ See October 14, 2011, Letter from Administrator Lisa P. 
Jackson to Senator Olympia Snowe. A copy of this letter has been 
placed in the docket for this final rule (EPA-HQ-RCRA-2008-1873).
    \4\ See 78 FR 9112 (February 7, 2013) for a discussion of the 
rule and the Agency's basis for its decisions.
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     Revised Definitions: The EPA revised three definitions 
discussed in the proposed rule: (1) ``clean cellulosic biomass,'' (2) 
``contaminants,'' and (3) ``established tire collection programs.'' In 
addition, based on comments received on the proposed rule, the Agency 
revised the definition of ``resinated wood.''
     Contaminant Legitimacy Criterion for NHSMs Used as Fuels: 
The EPA issued revised contaminant legitimacy criterion for NHSMs used 
as fuels to provide additional details on how contaminant-specific 
comparisons between NHSMs and traditional fuels may be made. The 
revisions include: (1) The ability to compare groups of contaminants 
where technically reasonable; (2) clarification that ``designed to 
burn'' means can burn or does burn, and not necessarily permitted to 
burn; (3) the ability to use traditional fuel data from national 
surveys and other sources beyond a facility's current fuel supplier; 
and (4) the ability to use ranges of traditional fuel contaminant 
levels when making contaminant comparisons, provided the variability of 
the NHSM contaminant levels is also considered.
     Categorical Non-Waste Determinations for Specific NHSMs 
Used as Fuels. The EPA codified determinations that certain NHSMs are 
non-wastes when used as fuels. If a material is categorically listed as 
a non-waste fuel, persons that generate or burn these NHSMs will not 
need to make individual determinations, as required under the existing 
rules, that these NHSMs meet the legitimacy criteria. Except where 
otherwise noted, combustors of these materials will not be required to 
provide further information demonstrating their non-waste status. Based 
on all available information, the EPA determined the following NHSMs 
are not solid wastes when burned as a fuel in combustion units and has 
categorically listed them in 40 CFR 241.4(a).\5\
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    \5\ In the March 21, 2011 NHSM rule (76 FR 15456), EPA 
identified two NHSMs as not being solid wastes, although persons 
would still need to make individual determinations that these NHSMs 
meet the legitimacy criteria: (1) Scrap tires used in a combustion 
unit that are removed from vehicles and managed under the oversight 
of established tire collection programs and (2) resinated wood used 
in a combustion unit. However, in the February 2013 NHSM rule, the 
Agency amended the regulations and categorically listed these NHSMs 
as not being solid wastes.

-- Scrap tires that are not discarded and are managed under the 
oversight of established tire collection programs, including tires 
removed from vehicles and off-specification tires;
-- Resinated wood;
-- Coal refuse that has been recovered from legacy piles and processed 
in the same manner as currently-generated coal that would have been 
refuse if mined in the past;
-- Dewatered pulp and paper sludges that are not discarded and are 
generated and burned on-site by pulp and paper mills that burn a 
significant portion of such materials where such dewatered residuals 
are managed in a manner that preserves the meaningful heating value of 
the materials.

     Rulemaking Petition Process for Other Categorical Non-
Waste Determinations: EPA made final a process in 40 CFR 241.4(b) that 
provides persons an opportunity to submit a rulemaking petition to the 
Administrator, seeking a determination for additional NHSMs to be 
categorically listed in 40 CFR 241.4(a) as non-waste fuels, if they can 
demonstrate that the NHSM meets the legitimacy criteria or, after 
balancing the legitimacy criteria with other relevant factors, EPA 
determines that the NHSM is not a solid waste when used as a fuel. 
Based on these non-waste categorical determinations, as discussed 
above, facilities burning NHSMs that meet the categorical listing 
description will not need to make individual determinations that the 
NHSM meets the legitimacy criteria or provide further information 
demonstrating their non-waste status on a site-by-site basis, provided 
they meet the conditions of the categorical listing. Please refer to 
section IV.C of this preamble for details on the petition process.

B. Background to Final Rule

    As discussed in the February 2013 final rule,\6\ the Agency had 
received comments that additional NHSMs should be categorically listed 
as non-waste fuels for which the Agency had not requested information 
as a part of that proposal. We did not respond to such comments and 
issues since they were beyond the scope of that rulemaking and 
indicated that, because the Agency did not specifically solicit 
comments or propose that those NHSMs be categorically listed in 40 CFR 
241.4(a), the Agency must go through notice and comment rulemaking 
before making a final decision. The February 2013 rule noted, however, 
that two NHSMs--paper recycling residuals (including old corrugated 
cardboard (OCC) rejects) and construction and demolition debris 
processed pursuant to best practices--would be good candidates for a 
future proposal based on information provided to the Agency and that 
EPA expected to propose those listings in a subsequent rulemaking.
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    \6\ 78 FR 9160.
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    To supplement the comments identified in the February 2013 rule, 
the Agency received additional information on these two NHSMs from 
stakeholders (see section V of this preamble). As discussed in the 
following sections, the EPA has determined the information received to 
date, when taken together, supports a categorical determination of 
these materials as non-waste fuels and is today listing them as 
categorical non-waste fuels in 40 CFR 241.4(a).
    In addition to paper recycling residuals and construction and 
demolition debris, the Agency identified creosote-treated railroad ties 
in the February 2013 final rule as a potential candidate for a 
categorical non-waste listing based on comments from stakeholders. 
However, the Agency indicated that additional information would need to 
be submitted before this NHSM could be addressed. If such information 
supported the representations made by industry--that is, the American 
Forest & Paper Association (AF&PA) and the American Wood Council--EPA 
stated that it expected to propose a categorical listing for this 
material as well. Finally, we noted in the February 2013 final rule 
that the Agency received a letter from the Treated Wood Council asking 
that non-hazardous treated wood be categorically listed--a broad 
category that would include creosote-treated railroad ties. The Agency 
noted it was in the process of reviewing the information in the letter 
and would consider whether to propose a categorical listing for this 
broader set of treated wood material.
    The Agency has reviewed the information submitted from stakeholders 
regarding creosote-treated railroad ties. As discussed in the following 
sections, the EPA has determined that the information received to date, 
when taken together, supports a categorical determination for creosote-
treated railroad ties when combusted in the types of units described 
herein and is listing them as categorical non-wastes fuels in 40 CFR 
241.4(a).\7\ (refer to section V of this

[[Page 6692]]

preamble or the regulatory text for a full description of this 
categorical listing).
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    \7\ As noted above, the Agency also received a petition from the 
Treated Wood Council asking that non-hazardous treated wood be 
categorically listed--a broad category that would include creosote-
treated railroad ties. Other treated wood addressed in the petition 
included waterborne borate-based preservatives, waterborne organic-
based preservatives, waterborne copper-based wood preservatives 
(ammoniacal/alkaline copper quat, copper azole, copper HDO, alkaline 
copper betaine, or copper naphthenate); creosote; oilborne copper 
naphthenate; pentachlorophenol; or dual-treated with any of the 
above. The Agency is in the process of reviewing that petition and 
supplementary information submitted subsequent to the petition. 
Accordingly, while cresosote treated wood railroad ties is included 
in the current rule, other treated wood materials identified in the 
Treated Wood Council's petition are not addressed in this action. If 
upon completion of the Agency's review, the information supports a 
categorical listing of one or more of these other treated wood 
materials, the Agency would propose those materials in a future 
rulemaking. See also discussion under Comments and Information 
Received on Other Types of Treated Wood in section V.A.6.c..
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C. How does the EPA make categorical non-waste determinations?

    The February 7, 2013 revisions to the NHSM rule discuss the process 
and decision criteria whereby the Agency would make additional 
categorical non-waste determinations. (See 78 FR 9158.) While the 
categorical non-waste determinations in this action are not based on 
rulemaking petitions, the criteria the EPA used to assess these NHSMs 
as categorical non-wastes match the criteria to be used by the 
Administrator to determine whether to grant or deny the categorical 
non-waste petitions.\8\ \9\ These determinations follow the criteria 
set out in 40 CFR 241.4(b)(5) to assess additional categorical non-
waste petitions and follow the statutory standards as interpreted by 
the EPA in the NHSM rule for deciding whether secondary materials are 
wastes. Those criteria include: (1) Whether each NHSM has not been 
discarded in the first instance (i.e., was not initially abandoned or 
thrown away) and is legitimately used as a fuel in a combustion unit 
or, if discarded, has been sufficiently processed into a material that 
is legitimately used as a fuel; and, (2) if the NHSM does not meet the 
legitimacy criteria described in 40 CFR 241.3(d)(1), whether the NHSM 
is integrally tied to the industrial production process, the NHSM is 
functionally the same as the comparable traditional fuel, or other 
relevant factors as appropriate.
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    \8\ For a full discussion regarding the petition process for 
receiving a categorical non-waste determination, see 78 FR 9111, 
February 7, 2013 (page 9158-9159).
    \9\ Supplementary information received from by M.A. Energy 
Resources (February 2013) in support of the crosstie derived fuel 
was submitted as a categorical petition in accordance 40 CFR 
241.4(b).
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    Based on the information in the rulemaking record, including 
stakeholder comments, the Agency is amending 40 CFR 241.4(a) by listing 
three additional NHSMs as categorical non-wastes. Specific 
determinations regarding C&D wood, paper recycling residuals, and 
creosote-treated railroad ties as categorical non-wastes and how the 
information was assessed by EPA according to the criteria in 40 CFR 
241.4(b)(5) are discussed in detail in section V of this preamble.

V. Comments on the Proposed Rule and Rationale for Final Decisions

    In this section, the EPA provides the rationale for its 
determination that the three additional NHSMs are appropriate for 
listing as categorical non-wastes, under certain conditions. It also 
addresses major comments the Agency received regarding the three NHSMs 
proposed in the April 14, 2014 rule (79 FR 21005).

A. Construction and Demolition Debris Processed According to Best 
Management Practices

    The April 14, 2014 proposed rule described C&D wood in detail (79 
FR 21010-11), explained the status of C&D wood under current rules, 
discussed comments received during previous proceedings, as well as the 
scope of the proposed non-waste listing (79 FR 21011-12). The proposed 
rationale for the listing is found in the proposal at 79 FR 21012-16 
and is summarized and incorporated into this final rule, along with all 
sources referenced in that discussion and cited therein. The final 
decision in this rule is based on the information in the proposal and 
supporting materials in the rulemaking record. Any changes made to the 
final rule are based on the rationale, as described below.
1. Detailed Description of C&D Wood
    As described in the proposed rule (79 FR 21010-11) and reiterated 
here, C&D wood is generated from the processing of debris from 
construction and demolition activities for the purposes of recovering 
wood. At construction activities, this debris results from cutting wood 
down to size during installation or from purchasing more wood than a 
project ultimately requires, while at demolition activities, this 
debris results from dismantling buildings and other structures or 
removing materials during renovation.\10\ Information previously 
compiled by the Agency indicates C&D activities generate an estimated 
33 to 49 million tons of scrap wood each year, approximately half of 
which is of acceptable size, quality, and condition to be considered 
available for recovery. However, information on the amount of processed 
C&D wood that is burned for energy recovery is unavailable, although 
sources surveyed by EPA for the 2010 proposed CISWI rule and the 
National Emission Standards for Hazardous Air Pollutants for Area and 
Major Industrial, Commercial, and Institutional Boilers (Boilers) rule 
indicate that between 4.7 to 11.2 million tons per year of processed 
C&D wood may be burned for energy recovery.\11\
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    \10\ Two revisions have been made to the definition of C&D wood. 
Please refer to section V.A.3. of this preamble for a discussion of 
the revisions to the definition of C&D wood for the final rule.
    \11\ Materials Characterization Paper: Construction and 
Demolition Materials. February 3, 2011. EPA-HQ-RCRA-2008-0329-1811.
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    Also, because clean C&D wood is considered ``clean cellulosic 
biomass'' and is already excluded from being a solid waste,\12\ the 
Agency expected the proposed rule would address C&D wood generated 
predominantly from demolition activities. However, the proposal 
acknowledged clean C&D wood generated from construction activities that 
is mixed with contaminated C&D debris would be subject to the same 
practices and requirements described in the proposed rulemaking, 
because it is comingled with contaminated materials that would not 
constitute ``clean cellulosic biomass.'' The Agency finds, similarly, 
the practices and requirements adopted in this final rule, which are 
modified slightly from the proposal, also apply to the commingled 
materials generated from construction activities. No information was 
presented in this rulemaking to cause the Agency to find otherwise.
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    \12\ Clean C&D wood is included in the definition of ``clean 
cellulosic biomass'' and thus, may be combusted as a traditional 
fuel if it does not contain contaminants at concentrations not 
normally associated with virgin wood. Conversely, C&D wood that is 
not ``clean'' is that which must be processed to remove contaminants 
such as lead-painted wood, treated wood containing contaminants, 
such as arsenic and chromium, metals and other non-wood materials. 
(See 76 FR 15485, March 21, 2011; 78 FR 9138-39, February 7, 2013; 
and 40 CFR 241.2).
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    With respect to how C&D debris is handled, we noted in the proposal 
and find in this final rule that, although contractors may segregate 
C&D debris at building sites, the common practice--at demolition sites 
in particular--is to send co-mingled debris to independent C&D 
recycling or processing facilities. At these facilities, operators 
recover wood scraps from a mixture of building materials that often 
includes metals, concrete, plastics, and other items that are 
unsuitable for energy recovery in combustion units. Some operators use 
``positive sorting'' techniques, meaning

[[Page 6693]]

they specifically remove wood scraps from the co-mingled debris, 
picking out only desirable wood and leaving all other C&D debris behind 
for disposal or other recycling processes. Other operators use 
``negative sorting'' techniques, meaning they achieve a similarly clean 
final product by removing or excluding contaminated or otherwise 
undesirable material from the C&D debris. Regardless of whether they 
use positive or negative sorting, processing facilities then grind the 
recovered wood to a specified size and deliver it to energy recovery 
facilities.
    C&D wood processing facilities can use a variety of techniques to 
remove or exclude debris unsuitable for a product fuel. Typically, 
processors use some combination of source control, inspection, sorting, 
and screening to meet the specifications identified by their customers 
(i.e., combustion facilities). The nature of the incoming C&D debris, 
the extent of material segregation prior to arrival at the processing 
facility, whether positive or negative sorting is employed, and the 
scale of the processing facility (e.g., the degree of sorting and 
number of screening devices) help determine which combination of 
practices will be most effective. Individual states also have different 
requirements related to the processing and combustion of C&D wood.\13\ 
Despite the variety of options, the Agency finds certain practices are 
essential to ensure processing of the C&D debris produces a legitimate 
product fuel. These practices, described in the proposal as best 
management practices, have been adopted in this final rule with minor 
changes and are discussed later in section V.A.3. of this preamble. In 
addition to excluding or removing a set list of C&D materials known to 
contain contaminants (e.g., certain types of treated wood), processors 
must take steps to eliminate less obvious contaminant sources (e.g., 
lead-based paint). Consequently, the standards proposed and finalized 
in this document, ensure that the contaminants in the fuel that is 
burned will not be unpredictable, even though the sources of the wood 
may vary.
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    \13\ This final rulemaking does not change or replace existing 
state requirements regarding C&D wood. See section VIII. State 
Authority A. Relationship to State Programs of this preamble.
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2. C&D Wood Under Current NHSM Rules
a. March 21, 2011 and February 2013 Final Rules
    In both the March 21, 2011 and February 7, 2013 NHSM final rules, 
EPA discussed two scenarios under which the Agency would consider C&D 
wood to be a non-waste fuel.\14\ First, ``clean'' C&D wood can be 
burned as a traditional fuel without any requirement for testing or 
recordkeeping--because it is a ``clean cellulosic biomass'' material 
indistinguishable in composition from virgin wood.\15\ Second, wood 
recovered from C&D debris (i.e., contaminated wood) can be sufficiently 
processed to meet the legitimacy criteria and, thus, would be a non-
waste fuel, although combustion facilities burning the material would 
need to keep records documenting the material's non-waste status. 
Records would need to document not only how the processing operations 
meet the definition of processing in 40 CFR 241.2, but also how the 
product fuel meets the NHSM legitimacy criteria in 40 CFR 
241.3(d)(1).16 17
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    \14\ 76 FR 15485, March 21, 2011 and 78 FR 9138, February 7, 
2013.
    \15\ In the February 7, 2013 final rule (78 FR 9139), the Agency 
emphasized that, ``determinations that the cellulosic biomass used 
as a fuel or ingredient is clean, do not presuppose any testing of 
contaminant levels. Persons can use expert or process knowledge of 
the material to justify decisions regarding presence of 
contaminants.''
    \16\ Recordkeeping requirements for area source boilers are 
found at 40 CFR 63.11225(c)(2)(ii), while recordkeeping requirements 
for major source boilers are found at 40 CFR 63.7555(d)(2).
    \17\ While the combustor would be responsible for maintaining 
the records that such NHSM met the legitimacy criteria, the 
combustor could request that the person that generated the C&D wood 
provide documentation that the processing operations meet the 
definition of processing, as well as the legitimacy criteria, 
especially the contaminant legitimacy criterion.
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b. December 2011 Proposed Rule
    Although the December 2011 NHSM proposed rule did not discuss or 
solicit comments on processed C&D wood, a number of commenters 
submitted comments arguing processed C&D wood (i.e., recovered from 
demolition activities) should be categorically listed as a non-waste 
fuel under 40 CFR 241.4(a), or otherwise a non-waste.\18\ The 
commenters' rationale for listing processed C&D wood as a non-waste is 
as follows.
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    \18\ Comments submitted on the December 23, 2011 proposed rule 
are included in docket: EPA-HQ-RCRA-2008-0329. Specifically, see the 
document ID#'s ending in -1902, -1910, -1950, -1930, -1928, -1946, -
1957, -1927, -1893, and -1905.
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     It is utilized in combination with other biomass materials 
to optimize and manage combustion in boilers due to its low moisture/
high heat characteristics.
     It is sufficiently processed to remove impurities.
     From a practical materials management standpoint, C&D 
materials are not discarded; collection of most of these materials is 
planned for, with C&D recycle sorting and processing yards receiving 
the materials as a destination and the point of generation of the fuel 
product.
     Commenters detail the processing and test data available 
for C&D materials, which demonstrates their value as a fuel.
     Commenters noted the EPA has already included clean C&D 
materials in their proposed clean cellulosic biomass definition for 
traditional fuels, but EPA elsewhere identifies C&D materials that are 
not clean as subject to the legitimacy criteria.
    The commenters argued, therefore, the EPA should remove doubt and 
list these materials in the newly proposed 40 CFR 241.4(a) as a non-
waste fuel given both their demonstrated fuel value and the industry 
that has been established for recycling these NHSMs into useful product 
fuel.
    Expanding further on these comments, several trade organizations 
submitted information in support of a categorical non-waste 
determination that would list processed C&D wood as a product fuel when 
burned in combustion units. The information suggested that a non-waste 
listing include all C&D wood processed in accordance with industry 
practices proven to produce a wood product meeting the NHSM legitimacy 
criteria. The commenters identified ``proven practices'' as the sorting 
(both mechanical and manual) of C&D material to separate the following 
contaminants: Non-wood material, wood treated with pentachlorophenol, 
chromated copper arsenic (CCA) treated wood, or other copper, chromium 
or arsenical preservatives, and lead (through the separation of either 
lead-painted wood or fines or through other means as specified in 
applicable state law). Commenters also compiled a dataset of 
contaminant concentrations in processed C&D wood from nine combustion 
facilities in seven states to demonstrate the efficacy of the 
identified practices.
    Case-by-case analysis is not necessary, the trade organizations 
contended, to ensure sufficient processing occurs and that C&D wood 
products--produced by different processors using different sorting 
techniques--are consistently managed as a valuable commodity, have 
meaningful heating values, and contain contaminants at levels 
comparable to or lower than traditional fuels. Instead, they argued 
persons burning C&D wood for energy recovery only need to certify the 
processed C&D wood came from a facility using the aforementioned 
sorting practices.
    Other commenters on the December 2011 NHSM proposed rule asserted 
that

[[Page 6694]]

C&D wood should be regulated as a solid waste because they view it as 
having been discarded similar to scrap tires. Another commenter 
requested the EPA require testing for contamination based on what they 
described as highly unpredictable contaminant levels. The commenter 
referenced specific combustion facilities that accepted C&D wood, 
including lead-painted wood and CCA-treated wood, as well as plastics 
and foreign debris to support a requirement for testing. In addition, 
the same commenter argued that C&D wood should only be compared to 
clean untreated wood when conducting a contaminant comparison, not 
necessarily what the unit is designed to burn.\19\ The Agency's 
decision on this final rule considers the issues raised in these 
comments on the December 2011 proposed rule. Responses to the issues 
raised in these comments are included in section V.A.6. of this 
preamble.
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    \19\ Comments submitted on the December 23, 2011 proposed rule 
(76 FR 80452) are included in docket: EPA-HQ-RCRA-2008-0329. 
Specifically, see the document ID numbers ending in -1959 and -1974.
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3. Scope of the Proposed Rule and Final Categorical Non-Waste Listing 
for C&D Wood
    Based on information in the record, including comments submitted 
before proposal, the Agency proposed the categorical non-waste listing 
for wood recovered from C&D debris which has been processed according 
to best management practices to remove certain contaminants, as a 
categorical non-waste in 40 CFR 241.4(a). Under the proposed rule, 
combustors of C&D wood must obtain a written certification from C&D 
processing facilities that the C&D wood has been processed by trained 
operators in accordance with best management practices.\20\ Such 
practices include sorting by trained operators that excludes or removes 
non-wood materials (e.g., polyvinyl chloride and other plastics, 
drywall, concrete, aggregates, dirt, and asbestos), and wood treated 
with creosote,\21\ pentachlorophenol, chromated copper arsenate, or 
other copper, chromium, or arsenical preservatives. In addition, C&D 
processing facilities that use positive sorting (where operators pick 
out desirable wood from co-mingled debris) must either exclude all 
painted wood from the final product fuel, use X-ray Fluorescence to 
ensure that painted wood included in the final product fuel does not 
contain lead-based paint, or require documentation that a building has 
been tested for and does not include lead-based paint before accepting 
demolition debris from that building.
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    \20\ If the processed C&D wood does not meet the categorical 
listing, the wood may still be considered a non-waste fuel (on a 
case-by-case basis), although any combustor that burns such 
processed C&D wood would need to keep records documenting the 
materials non-waste status pursuant to 40 CFR 63.11225(c)(2)(ii) and 
40 CFR 63.7555(d)(2).
    \21\ Although industry trade groups did not list creosote 
treated wood as wood that is excluded or removed, they provided 
information indicating that C&D debris can include creosote treated 
wood. Based upon the contaminants present in creosote treated wood 
and the types of boilers that burn C&D wood (i.e., those that are 
designed to burn clean wood and biomass), operators must exclude or 
remove creosote treated wood. With respect to creosote and as 
discussed later in section V.C of this preamble, the Agency 
evaluated data provided for creosote-treated railway ties and 
determined that boiler design was an integral factor in satisfying 
the contaminant legitimacy criterion.
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    C&D processing facilities that use negative sorting (where 
operators remove contaminated or otherwise undesirable materials from 
co-mingled debris) must remove fines, i.e., small-sized particles that 
may contain relatively high concentrations of lead and other 
contaminants, and either remove painted wood, use X-ray Fluorescence to 
detect and remove lead-painted wood, or require documentation that a 
building has been tested for and does not include lead-based paint 
before accepting demolition debris from that building.
    This rule finalizes the criteria and requirements discussed in the 
proposal for reasons explained in the proposal, with three changes to 
the regulatory language for lead elimination requirements for both 
positive and negative sorting facilities, two changes to the definition 
of C&D wood, and the addition of new language for the processor's 
written certification and training requirements. The changes and 
additions were made in response to comments received and based on other 
supporting information in the record and to provide clarity to the best 
management practice requirements, as well as the definition of C&D 
wood. The rationale for the changes and additions that have been made 
in the final rule are explained below in this section. The general 
rationale for the final listing is provided in the next section V.A.4. 
of this preamble.
    Lead Elimination Requirements. One of the changes between the 
proposed rule and final rule concerns the lead elimination requirements 
for positive sorting processors. The lead exclusion language for 
positive sorting processors proposed at 40 CFR 241.4(a)(5)(i) did not 
specifically provide that facilities receiving pre-sorted wood from 
positive sorting entities who may need to remove small amounts of 
unwanted material prior to chipping and grinding the wood are also 
considered positive sorting facilities. Because these facilities remove 
some materials, they could be considered negative sorters.
    The proposed regulatory language resulted from a presumed scenario 
in which C&D debris was sent to a single, centralized processing 
facility. However, there are other processors who receive segregated or 
pre-sorted C&D wood from small generators.\22\ These small generators 
(e.g., contractors, community collections, citizen drop-off locations, 
and transfer stations) segregate and collect clean C&D wood using 
positive sorting and provide the recovered C&D wood to ``chip and 
grind'' processors. The chip and grind processors then conduct 
additional sorting, using negative sorting techniques, to remove small 
amounts of unwanted materials from the shipment prior to processing. 
These processors should not be considered negative sorters.
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    \22\ See comments and data submitted by Covanta (EPA -HQ-RCRA-
2013-0110-0084), comments from American Reclamation Inc. (EPA-HQ-
RCRA-2013-0110-0073), and comments from Genesee Power Station (GPS) 
(EPA-HQ-RCRA-2013-0110-0091).
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    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

[[Page 6695]]

wood received must be removed (or excluded in the case of positive 
sorting facilities). The purpose of this change is to ensure all 
painted wood, regardless of sorting practices, is eliminated from the 
final product if the processor chooses this lead elimination strategy. 
While it is expected that processors will make every effort to remove 
or exclude all painted wood under this option, de minimis amounts could 
be present and still render the resultant material a product fuel. The 
final regulatory language adds new text to 40 CFR 241.4(a)(5)(ii)(A), 
and now states ``[r]emove all painted wood.''
    The third change that has been made applies to both positive and 
negative sorters. As stated in the previous paragraph, the term ``all'' 
has been added to the negative sorting requirements for consistency and 
to reaffirm that this particular option is intended to be a stringent 
standard. However, to provide additional clarity regarding the Agency's 
position on de minimis amounts, we have added the following language as 
a parenthetical to both 40 CFR 241.4(a)(5)(i)(A) and (ii)(A): ``(to the 
extent that only de minimis quantities inherent to processing 
limitations may remain)''.
    Definition of C&D wood. Two revisions to the definition of C&D wood 
(40 CFR 241.2) have been made. One revision is to include disaster 
debris and the second revision is to broaden what the Agency considers 
to be wood recovered from construction activities.
    In the proposed rule, the Agency noted clean wood in disaster 
debris had been included in the definition for ``clean cellulosic 
biomass'' in a prior rulemaking, but had not addressed clean wood from 
disaster debris mixed with contaminated materials (e.g., lead-based 
painted wood, CCA treated wood, asbestos containing materials, utility 
poles, etc.) and sent for processing without any prior sorting. Also 
noted in the proposal, and of particular concern to the Agency, was 
that management of disaster debris is more expedited and less 
controlled and thus, prone to include contaminants that might otherwise 
be sorted out prior to processing.\23\ Therefore, the Agency solicited 
comment on whether disaster debris should be included in the definition 
of C&D wood despite some concerns related to processing large volumes 
of material expeditiously.
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    \23\ Management of disaster debris can involve significantly 
greater volumes. For example, prior to the 1994 Northridge 
earthquake in Los Angeles, one local company processed 150 tons of 
C&D debris per day. After the earthquake, the city picked up as much 
as 10,000 tons of C&D debris per day.
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    The Agency finds that these concerns regarding the management of 
large volumes of material in an expeditious nature would only be 
relevant if the best management practices as finalized in this rule are 
not used to process wood from natural disaster debris. The Agency finds 
that the best management practices set forth in this rule are 
sufficient to ensure natural disaster debris is handled and processed 
in the same manner as other C&D debris, regardless of the source or 
quantity of material to be processed. In other words, processors that 
comply with the best management practices for this listing would not be 
altering the way in which they process the debris. Should a processor 
choose to hire and train additional sorters or extend operational hours 
to process higher volumes, the limiting factors in this rule that will 
continue to ensure the quality of the processed material are the best 
management practices and the training and certification requirements. 
Furthermore, the information provided to the Agency discusses that when 
the incoming material exceeds processing capacity, the excess material 
is stored or sent to a landfill.\24\ Given the best management 
practices and information indicating the typical handling of excess 
material, the Agency has determined it is appropriate to include 
disaster debris in the definition of C&D wood. Thus, clean wood from 
natural disaster debris mixed with other materials and delivered to a 
processing facility has been added to the definition of C&D wood. 
However, the natural disaster debris must be processed in the same 
manner as C&D wood recovered from C&D activities to qualify for this 
categorical non-waste listing. The last sentence of the definition for 
C&D wood at 40 CFR 241.2 has been revised to add text for natural 
disasters and now reads: ``C&D wood from demolition activities results 
from dismantling buildings and other structures, removing materials 
during renovation, or from natural disasters.''
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    \24\ See comments from American Forest & Paper Association (EPA-
HQ-RCRA-2013-0110-0076) and Waste Management (EPA-HQ-RCRA-2013-0110-
0094.
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    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

[[Page 6696]]

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 t