[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Proposed Rules]
[Pages 75781-75801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26381]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

[EPA-HQ-OLEM-2016-0248; FRL-9953-38-OLEM]
RIN 2050-AG83


Additions to List of Section 241.4 Categorical Non-Waste Fuels: 
Other Treated Railroad Ties

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
proposing to issue amendments to the Non-Hazardous Secondary Materials 
rule, initially promulgated on March 21, 2011, and amended on February 
7, 2013 and February 8, 2016, 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 7, 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 self-implementing case-by-case 
standards and procedures that would otherwise apply to non-hazardous 
secondary materials used in combustion units. The February 8, 2016 
amendments added three materials including creosote treated railroad 
ties to the list of categorical non-waste fuels. This action proposes 
to add other treated railroad ties to the list, which are processed 
creosote-borate, copper naphthenate and copper naphthenate-borate 
treated railroad ties, under certain conditions depending on the 
chemical treatment.

DATES: Comments must be received on or before January 3, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2016-0248, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the Web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

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: [email protected].

SUPPLEMENTARY INFORMATION: 
    The following outline is provided to aid in locating information in 
this preamble.

I. General Information
    A. List of Abbreviations and Acronyms Used in This Proposed Rule
    B. What is the statutory authority for this proposed rule?
    C. Does this proposed rule apply to me?
    D. What is the purpose of this proposed rule?
II. Background
    A. History of the NHSM Rulemakings
    B. Background to This Proposed Rule
    C. How will EPA make categorical non-waste determinations?
III. Proposed Categorical Non-Waste Listing Determination for OTRTs
    A. Detailed Description of OTRTs
    B. OTRTs under Current NHSM Rules
    C. Scope of the Proposed Categorical Non-Waste Listing for OTRTs
    D. Rationale for Proposed Listing
    E. Summary and Request for Comment
    F. Copper and Borates Literature Review and Other EPA Program 
Review Summary

[[Page 75782]]

IV. Effect of This Proposal on Other Programs
V. State Authority
    A. Relationship to State Programs
    B. State Adoption of the Rulemaking
VI. Cost and Benefits
VII. 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 (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    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 (NTTAA)
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. List of Abbreviations and Acronyms Used in This Proposed Rule

Btu British thermal unit
C&D Construction and demolition
CAA Clean Air Act
CBI Confidential business information
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incinerator
CTRT Cresosote-treated railroad ties
EPA U.S. Environmental Protection Agency
FR Federal Register
HAP Hazardous air pollutant
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
OMB Office of Management and Budget
PAH Polycyclic aromatic hydrocarbons
ppm Parts per million
RCRA Resource Conservation and Recovery Act
RIN Regulatory information number
RL Reporting Limits
SBA Small Business Administration
SO2 Sulfur dioxide
SVOC Semi-volatile organic compound
TCLP Toxicity characteristic leaching procedure
UPL Upper prediction limit
U.S.C. United States Code
VOC Volatile organic compound

B. What is the statutory authority for this proposed rule?

    The EPA is proposing that additional non-hazardous secondary 
materials (NHSMs) be categorically listed as 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(g)(6)). 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).

C. Does this proposed rule apply to me?

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

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

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

D. What is the purpose of this proposed rule?

    The RCRA statute 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

[[Page 75783]]

activities.'' (RCRA section 1004(27) (emphasis added)). The key concept 
is that of ``discard'' and, in fact, this definition turns on the 
meaning of the phrase, ``other discarded material,'' since this term 
encompasses all other examples provided in the definition.
    The meaning of ``solid waste,'' as defined under RCRA, is of 
particular importance as it relates to section 129 of the CAA. If 
material is a solid waste under RCRA, a combustion unit burning it is 
required to meet the CAA section 129 emission standards for solid waste 
incineration units. If the material is not a solid waste, combustion 
units are required to meet the CAA section 112 emission standards for 
commercial, industrial, and institutional boilers. Under CAA section 
129, the term ``solid waste incineration unit'' is defined, in 
pertinent part, to mean ``a distinct operating unit of any facility 
which combusts any solid waste material from commercial or industrial 
establishments.'' 42 U.S.C. 7429(g)(1). CAA section 129 further states 
that the term ``solid waste'' shall have the meaning ``established by 
the Administrator pursuant to the Solid Waste Disposal Act.'' Id at 
7429(g)(6). The Solid Waste Disposal Act, as amended, is commonly 
referred to as the Resource Conservation and Recovery Act or RCRA.
    Regulations concerning NHSMs used as fuels or ingredients in 
combustion units are codified in 40 CFR part 241.\1\ This action 
proposes to amend the Part 241 regulations by adding three NHSMs to the 
list of categorical non-waste fuels codified in Sec.  241.4(a). These 
new proposed categorical listings are for:
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    \1\ See 40 CFR 241.2 for the definition of non-hazardous 
secondary material.
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     Creosote-borate railroad ties (and mixtures of creosote, 
copper naphthenate and copper naphthenate-borate railroad ties) that 
are processed and then combusted in units designed to burn both biomass 
and fuel oil. Such combustion must be part of normal operations and not 
solely as part of start-up or shut-down operations. Also included are 
units at major source pulp and paper mills or power producers \2\ 
subject to 40 CFR part 63, subpart DDDDD that combust these types of 
treated railroad ties 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. Again, such combustion 
must be part of normal operations and not solely as part of start-up or 
shut-down operations. These treated railroad ties may continue to be 
combusted as product fuel in units that have been modified to use 
natural gas only if the following conditions are met, which are 
intended to ensure that these materials are not being discarded:
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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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    [cir] Must be burned in existing (i.e., commenced construction 
prior to April 14, 2014) stoker, bubbling bed, fluidized bed, or hybrid 
suspension grate boilers; and
    [cir] Can comprise no more than 40 percent of the fuel that is used 
on an annual heat input basis.
     Copper naphthenate railroad ties combusted in units 
designed to burn biomass, or biomass and fuel oil.
     Copper naphthenate-borate railroad ties combusted in units 
designed to burn biomass, or biomass and fuel oil.

II. 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 (codified in 40 CFR 241.2).
    A key concept under the March 21, 2011 rule is that NHSMs used as 
non-waste fuels in combustion units must meet the legitimacy criteria 
specified in 40 CFR 241.3(d)(1). Application of the legitimacy criteria 
helps ensure that the fuel product is being legitimately and 
beneficially used and not simply being discarded through combustion 
(i.e., via sham recycling). To meet the legitimacy criteria, the NHSM 
must be managed as a valuable commodity, have a meaningful heating 
value and be used as a fuel in a combustion unit that recovers energy, 
and contain contaminants or groups of contaminants at concentrations 
comparable to (or lower than) those in traditional fuels which the 
combustion unit is designed to burn.
    Based on these criteria, the March 21, 2011 rule identified the 
following NHSMs as not being solid wastes:
     The NHSM is used as a fuel and remains under the control 
of the generator (whether at the site of generation or another site the 
generator has control over) that meets the legitimacy criteria (40 CFR 
241.3(b)(1));
     The NHSM is used as an ingredient in a manufacturing 
process (whether by the generator or outside the control of the 
generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));
     Discarded NHSM has been sufficiently processed to produce 
a fuel or ingredient that meets the legitimacy criteria (40 CFR 
241.3(b)(4)); or
     Through a case-by-case petition process, it has been 
determined that the NHSM handled outside the control of the generator 
has not been discarded and is indistinguishable in all relevant aspects 
from a fuel product, and meets the legitimacy criteria (40 CFR 
241.3(c)).
    In October 2011, the Agency announced it would be initiating a new 
rulemaking proceeding to revise certain aspects of the NHSM rule.\3\ On 
February 7, 2013, the EPA published a final rule, which addressed 
specific targeted amendments and clarifications to the 40 CFR part 241 
regulations (78 FR 9112). These revisions and clarifications were 
limited to certain issues on which the Agency had received new 
information, as well as targeted revisions that the Agency believed 
were appropriate in order to allow implementation of the rule as the 
EPA originally intended. The amendments modified 40 CFR 241.2 and 
241.3, added 40 CFR 241.4, and included the following: \4\
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    \3\ See October 14, 2011, Letter from Administrator Lisa P. 
Jackson to Senator Olympia Snowe. A copy of this letter is in the 
docket for the February 7, 2013 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

[[Page 75784]]

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.
     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 listed these NHSMs as categorical 
non-waste fuels.

--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.
    The February 8, 2016 amendments (81 FR 6688) added the following to 
the list of categorical non-waste fuels:
     Construction and demolition (C&D) wood processed from C&D 
debris according to best management practices. Under this listing, 
combustors of C&D wood must obtain a written certification from C&D 
processing facilities that the C&D wood has been processed by trained 
operators in accordance with best management practices. Best management 
practices must include sorting by trained operators that excludes or 
removes the following materials from the final product fuel: Non-wood 
materials (e.g., polyvinyl chloride and other plastics, drywall, 
concrete, aggregates, dirt, and asbestos), and wood treated with 
creosote, pentachlorophenol, chromated copper arsenate, or other 
copper, chromium, or arsenical preservatives. Additional required best 
management practices address removal of lead-painted wood.
     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 (CTRT) that are processed 
(which includes metal removal and shredding or grinding at a minimum) 
and then combusted in the following types of units:
    [cir] 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
    [cir] Units at major source pulp and paper mills or power producers 
subject to 40 CFR part 63, subpart DDDDD, that combust CTRTs 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. The CTRTs may continue to be combusted as 
product fuel only if the following conditions are met, which are 
intended to ensure that the CTRTs are not being discarded: CTRTs must 
be burned in existing (i.e., commenced construction prior to April 14, 
2014) stoker, bubbling bed, fluidized bed, or hybrid suspension grate 
boilers; and, CTRTs can comprise no more than 40 percent of the fuel 
that is used on an annual heat input basis.
    Based on these non-waste categorical determinations, as discussed 
previously, 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.

B. Background to This Proposed Rule

    The Agency received a petition from the Treated Wood Council (TWC) 
in April 2013 requesting that nonhazardous treated wood (including 
borate and copper naphthenate) be categorically listed as non-waste 
fuels in 40 CFR 241.4(a). Under the April 2013 petition, nonhazardous 
treated wood would include: 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.
    In the course of EPA's review of the April 2013 petition, 
additional data was requested and received, and meetings were held 
between TWC and EPA representatives. Overall, the EPA review determined 
that there were limited data points available and the analytical 
techniques for some contaminants were not appropriate to provide 
information on the entire preserved wood sample as it would be 
combusted. EPA also questioned the representativeness of the samples 
being analyzed and the repeatability of the analyses.
    In the subsequent August 21, 2015 letter from TWC to Barnes 
Johnson,\6\ TWC requested that the Agency move forward on a subset of 
materials that were identified in the original April 2013 petition 
which are creosote borate, copper naphthenate, and copper naphthenate-
borate treated railroad ties. In the letter, TWC indicated that these 
types of ties are increasingly being used as alternatives to CTRT, due, 
in part, to lower overall contaminant levels and that the ability to 
reuse the ties is an important consideration in rail tie purchasing 
decisions. Information from industry also claimed that these

[[Page 75785]]

treatments have proven to increase decay resistance for ties in severe 
decay environments and for species that are difficult to treat with 
creosote alone.\7\ The letter stated that TWC will discuss the 
remaining treated wood materials with EPA as a separate matter.
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    \6\ Included in the docket for the February 2016 final rule. 
Follow-up meetings were also held with TWC on September 14, 2015 and 
December 17, 2015 summaries of which are also included in that 
docket.
    \7\ Railway Tie Association ``Frequently Asked Questions'' 
available on http://www.rta.org/faqs. Assessed on August 26, 2016.
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    The Agency reviewed TWC's information on the three treated railroad 
ties, creosote borate, copper naphthenate, and copper naphthenate-
borate, submitted on September 11, 2015 and requested additional 
contaminant data, which was submitted on October 5, 2015 and October 
19, 2015.\8\ Based on that information, we stated in the February 2016 
final rule that we believe these three treated railroad ties are 
candidates for categorical non-waste listings and expected to begin 
development of a proposed rule under 40 CFR 241.4(a) regarding those 
listings in the near future. The result is this proposal.
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    \8\ These data submissions and the letter from TWC on August 21, 
2015 are included in the docket for this proposed rule.
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C. How will 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 (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.9 10 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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    \9\ For a full discussion regarding the petition process for 
receiving a categorical non-waste determination, see 78 FR 9112, 
February 7, 2013 (page 9158-9159).
    \10\ 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, the Agency is 
proposing to amend 40 CFR 241.4(a) by listing in addition to CTRT, 
three other types of treated railroad ties as categorical non-wastes. 
Specific determinations regarding these other treated railroad ties 
(OTRT), i.e., creosote-borate, copper naphthenate, copper naphthenate-
borate and mixtures of creosote, borate and copper naphthenate 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 III of this preamble.
    The rulemaking record for this rule (i.e., EPA-HQ-RCRA-2016-0248) 
includes those documents and information submitted specifically to 
support the categorical listings discussed in this rule. However, the 
principles on which the categorical listings are determined are based 
on the NHSM rules promulgated over the past few years, as discussed 
previously. While EPA is not formally including in the record for this 
rule materials supporting the earlier NHSM rulemaking proceedings, the 
Agency is nevertheless issuing this rule consistent with the NHSM rule 
and its supporting documents. This rulemaking proceeding in no way 
reopens any issues resolved in previous NHSM rulemaking proceedings. It 
simply responds to a petition in accordance with the standards outlined 
in the existing NHSM rule.

III. Proposed Categorical Non-Waste Listing Determination for OTRTs

    The following sections describe the OTRTs that EPA is proposing to 
list in section 241.4(a) as categorical non-wastes when burned as a 
fuel in combustion units.

A. Detailed Description of OTRTs

1. Processing
    Industry representatives stated that the removal of OTRTs from 
service and processing of those ties into a product fuel is analogous 
to that of CTRTs described in the February 2016 rule.\11\ OTRTs are 
typically comprised of North American hardwoods that have been treated 
with a wood preservative. Most of the energy recovery with OTRTs is 
conducted through three parties: The generator of the crossties 
(railroad or utility); the reclamation company that sorts the 
crossties, and in some cases processes the material received from the 
generator; and the combustor as third party energy producers. 
Typically, ownership of the OTRTs are generally transferred directly 
from the generator to the reclamation company that sorts materials for 
highest value secondary uses, and then sells the products to end-users, 
including those combusting the material as fuel. Some reclamation 
companies sell OTRTs to processors who remove metal contaminants and 
grind the ties into chipped wood. Other reclamation companies have 
their own grinders, do their own contaminant removal, and can sell 
directly to the combusting facilities. Information submitted to the 
Agency indicates there are approximately 15 OTRT recovery companies in 
North America with industry wide revenues of $65-75 million.
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    \11\ 81 FR 6688.
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    After crossties are removed from service, they are transferred for 
sorting/processing, but in some cases, they may be temporarily stored 
in the railroad rights-of-way or at another location selected by the 
reclamation company. One information source \12\ indicated that when 
the crossties are temporarily stored, they are stored until their value 
as an alternative fuel can be realized, generally through a contract 
completed for transferal of ownership to the reclamation contractor or 
combustor. This means that not all OTRTs originate from crossties 
removed from service in the same year; some OTRTs are processed from 
crossties removed from service in prior years and stored by railroads 
or removal/reclamation companies until their value as a landscaping 
element or fuel could be realized.
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    \12\ M.A. Energy Resources LLC, Petition submitted to 
Administrator, EPA, February 2013.
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    Typically, reclamation companies receive OTRTs by rail. The 
processing of the crossties into fuel by the reclamation/processing 
companies involves several steps. Contaminant metals (spikes, nails, 
plates, etc.) undergo initial separation and removal by the user 
organization (railroad company) during inspection. At the reclamation 
company, metal is further removed by magnets and may occur in multiple 
stages. After removal of contaminant metals, the crossties are then 
ground or shredded to a specified size depending on the particular 
needs of the end-use combustor, with chip size typically between 1-2 
inches. Such

[[Page 75786]]

grinding and shredding facilitates handling, storage and metering to 
the combustion chamber. By achieving a uniform particle size, 
combustion efficiency will be improved due to the uniform and 
controlled fuel feed rate and the ability to regulate the air supply. 
Additionally, the reduction process exposes a greater surface area of 
the particle to the heated gases, thus releasing any moisture more 
rapidly, and thereby enhancing its heating value.\13\ This step may 
occur in several phases, including primary and secondary grinding, or 
in a single phase.
---------------------------------------------------------------------------

    \13\ Forest and Agriculture Organization of the United Nations. 
The Potential Use of Wood Residues for Energy Generation, 2016.
---------------------------------------------------------------------------

    Once the crossties are ground to a specific size, there is further 
screening based on the particular needs of the end-use combustor. 
Depending on the configuration of the facility and equipment, screening 
may occur concurrently with grinding or at a subsequent stage. Once the 
processing of OTRTs is complete, the OTRTs are sold directly to the 
end-use combustor for energy recovery. Processed OTRTs are delivered to 
the buyers by railcar or truck. The OTRTs are then stockpiled prior to 
combustion, with a typical storage timeframe ranging from a day to a 
week. When the OTRTs are to be burned for energy recovery, the material 
is then transferred from the storage location using a conveyor belt or 
front-end loader. The OTRTs may be combined with other biomass fuels, 
including hog fuel and bark. OTRTs are commonly used to provide the 
high Btu fuel to supplement low (and sometimes wet) Btu biomass to 
ensure proper combustion, often in lieu of coal or other fossil 
fuels.\14\ The combined fuel may be further hammered and screened prior 
to combustion.
---------------------------------------------------------------------------

    \14\ American Forest & Paper Association, American Wood 
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------

    In general, contracts for the purchase and combustion of OTRTs 
include fuel specifications limiting contaminants, such as metals, and 
prohibiting the receipt of wood treated with other preservatives such 
as pentachlorophenol.
2. Treatment Descriptions
i. Copper Naphthenate
    Copper naphthenate's effectiveness as a preservative has been known 
since the early 1900s, and various formulations have been used 
commercially since the 1940s. It is an organometallic compound formed 
as a reaction product of copper salts and naphthenic acids derived from 
petroleum. Unlike other commercially applied wood preservatives, small 
quantities of copper naphthenate can be purchased at retail hardware 
stores and lumberyards. Cuts or holes in treated wood can be treated in 
the field with copper naphthenate. Wood treated with copper naphthenate 
has a distinctive bright green color that weathers to light brown. The 
treated wood also has an odor that dissipates somewhat over time. Oil 
borne copper naphthenate is used for treatment of railroad ties since 
that treatment results in the ties being more resistant to cracks and 
checking. Waterborne copper naphthenate is used only for interior 
millwork and exterior residential dimensional lumber applications such 
as decking, fencing, lattice, recreational equipment, and other 
structures. Thus, this proposal does not address waterborne copper 
naphthenate.
    Copper naphthenate can be dissolved in a variety of solvents. The 
heavy oil solvent (specified in American Wood Protection Association 
(AWPA) Standard P9, Type A) or the lighter solvent (AWPA Standard P9, 
Type C) are the most commonly used. Copper naphthenate is listed in 
AWPA standards for treatment of major softwood species that are used 
for a variety of wood products. It is not listed for treatment of any 
hardwood species, except when the wood is used for railroad ties. The 
minimum copper naphthenate retentions (as elemental copper) range from 
0.04 pounds per cubic foot (0.6 kilograms per cubic meter) for wood 
used aboveground, to 0.06 pounds per cubic foot (1 kilograms per cubic 
meter) for wood that will contact the ground and 0.075 pounds per cubic 
foot (1.2 kilograms per cubic meter) for wood used in critical 
structural applications.
    When dissolved in No. 2 fuel oil, copper naphthenate can penetrate 
wood that is difficult to treat. Copper naphthenate loses some of its 
ability to penetrate wood when it is dissolved in heavier oils. Copper 
naphthenate treatments do not significantly increase the corrosion of 
metal fasteners relative to untreated wood.
    Copper naphthenate is commonly used to treat utility poles, 
although fewer facilities treat utility poles with copper naphthenate 
than with creosote or pentachlorophenol. Unlike creosote and 
pentachlorophenol, copper naphthenate is not listed as a Restricted Use 
Pesticide (RUP) by the EPA. Even though human health concerns do not 
require copper naphthenate to be listed as an RUP, precautions such as 
the use of dust masks and gloves are used when working with wood 
treated with copper naphthenate.
ii. Borates
    Borates is the name for a large number of compounds containing the 
element boron. Borate compounds are the most commonly used unfixed 
waterborne preservatives. Unfixed preservatives can leach from treated 
wood. They are used for pressure treatment of framing lumber used in 
areas with high termite hazard and as surface treatments for a wide 
range of wood products, such as cabin logs and the interiors of wood 
structures. They are also applied as internal treatments using rods or 
pastes. At higher rates of retention, borates also are used as fire-
retardant treatments for wood.
    Performance characteristics include activity against fungi and 
insects, with low mammalian toxicity. Another advantage of boron is its 
ability to diffuse with water into wood that normally resists 
traditional pressure treatment. Wood treated with borates has no added 
color, no odor, and can be finished (primed and painted).
    Inorganic boron is listed as a wood preservative in the AWPA 
standards, which include formulations prepared from sodium octaborate, 
sodium tetraborate, sodium pentaborate, and boric acid. Inorganic boron 
is also standardized as a pressure treatment for a variety of species 
of softwood lumber used out of contact with the ground and continuously 
protected from water. The minimum borate (B2O3) 
retention is 0.17 pounds per cubic foot (2.7 kilograms per cubic 
meter). A retention of 0.28 pounds per cubic foot (4.5 kilograms per 
cubic meter) is specified for areas with Formosan subterranean 
termites.
    Borate preservatives are available in several forms, but the most 
common is disodium octaborate tetrahydrate (DOT). DOT has higher water 
solubility than many other forms of borate, allowing more concentrated 
solutions to be used and increasing the mobility of the borate through 
the wood. With the use of heated solutions, extended pressure periods, 
and diffusion periods after treatment, DOT can penetrate species that 
are relatively difficult to treat, such as spruce. Several pressure 
treatment facilities in the United States use borate solutions. For 
refractory species destined for high decay areas, it has now become 
relatively common practice to use borates as a pre-treatment to protect 
the wood prior to processing with creosote.
iii. Creosote
    Creosote was introduced as a wood preservative in the late 1800's 
to prolong the life of railroad ties. CTRTs remain the material of 
choice by

[[Page 75787]]

railroads due to their long life, durability, cost effectiveness, and 
sustainability. As creosote is a by-product of coal tar distillation, 
and coal tar is a by-product of making coke from coal, creosote is 
considered a derivative of coal. The creosote component of CTRTs is 
also governed by the standards established by AWPA. AWPA has 
established two blends of creosote, P1/13 and P2. Railroad ties are 
typically manufactured using the P2 blend that is more viscous than 
other blends.

B. OTRTs Under Current NHSM Rules

1. March 2011 NHSM Final Rule
    The March 2011 NHSM final rule stated that most creosote-treated 
wood is non-hazardous. However, the presence of hexachlorobenzene, a 
CAA section 112 HAP, as well as other HAP suggested that creosote-
treated wood, including CTRTs, contained contaminants at levels that 
are not comparable to or lower than those found in wood or coal, the 
fuel that creosote-treated wood would replace. In making the 
assessment, the Agency did not consider fuel oil \15\ as a traditional 
fuel that CTRTs would replace, and concluded at the time that 
combustion of creosote-treated wood may result in destruction of 
contaminants contained in those materials. Such destruction is an 
indication of incineration, a waste activity. Accordingly, creosote-
treated wood, including CTRTs when burned, seemed more like a waste 
than a commodity, and did not meet the contaminant legitimacy 
criterion. This material, therefore, was considered a solid waste when 
burned, and units' combusting it would be subject to the CAA section 
129 emission standards (40 CFR part 60, subparts CCCC and DDDD).
---------------------------------------------------------------------------

    \15\ For the purposes of this proposed rule, fuel oil means oils 
1-6, including distillate, residual, kerosene, diesel, and other 
petroleum based oils. It does not include gasoline or unrefined 
crude oil.
---------------------------------------------------------------------------

    Regarding borate treated wood, after reviewing data from one 
commenter which shows that the levels of contaminants in this material 
are comparable to those found in unadulterated wood for the seven 
contaminants for which data was presented, the Agency stated in the 
March 2011 rule that such treated-wood meets the legitimacy criterion 
on the level of contaminants and comparability to traditional fuels. 
Therefore, under that rule, borate-treated wood could be classified as 
a non-waste fuel, provided they met the other two legitimacy criteria 
and provided that the contaminant levels for any other HAP that may be 
present in this material are also comparable to or less than those in 
traditional fuels. The rule noted that such borate-treated wood would 
need to be burned as a fuel for energy recovery within the control of 
the generator. Finally, the rule indicated that some borate-treated 
wood is subsequently treated with creosote, to provide an insoluble 
barrier to prevent the borate compounds from leaching out of the wood. 
The Agency did not receive data on the contaminant levels of the 
resulting material, but data presented on creosote treated lumber when 
combusted in units designed to burn biomass indicated that this NHSM 
would likely no longer meet the legitimacy criteria and would be 
considered a solid waste when burned as a fuel.
    The rule did not have information generally about the transfer of 
borate-treated wood to other companies to make a broad determination 
about its use as a fuel outside the control of the generator. Thus, 
under the March 2011 rule, borate-treated wood would need to be burned 
as a fuel for energy recovery within the control of the generator (76 
FR 15484).
    With regard to wood treated with copper naphthenate, no additional 
contaminant data was provided for the March 2011 rule that would 
reverse the position in the January 2010 proposed rule, which 
considered wood treated with copper naphthenate a solid waste because 
of concerns of elevated levels of contaminants (76 FR 15484). The rule 
acknowledged, as in the proposed rule, that the Agency did not have 
sufficient information on the contaminant levels in wood treated with 
copper naphthenate. Thus, if a person could demonstrate that copper 
naphthenate treated-wood is burned in a combustion unit as a fuel for 
energy recovery within the control of the generator and meets the 
legitimacy criteria or, if discarded, can demonstrate that they have 
sufficiently processed the material, that person can handle its copper 
naphthenate treated-wood as a non-waste fuel.
2. February 2013 NHSM Final Rule
    In the February 2013 NHSM final rule, EPA noted that the American 
Forest and Paper Association (AF&PA) and the American Wood Council 
submitted a letter with supporting information on December 6, 2012, 
seeking a categorical listing for CTRTs combusted in any unit.\16\ The 
letter included information regarding the amounts of railroad ties 
combusted each year and the value of the ties as fuel. The letter also 
discussed how CTRTs satisfy the legitimacy criteria, including its high 
Btu value.
---------------------------------------------------------------------------

    \16\ American Forest & Paper Association, American Wood 
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------

    While this information was useful, it was not sufficient for the 
EPA to propose that CTRTs be listed categorically as a non-waste fuel 
at that time. Therefore, to further inform the Agency as to whether to 
list CTRTs categorically as a non-waste fuel, EPA requested that 
additional information be provided, and indicated that if this 
additional information supported and supplemented the representations 
made in the December 2012 letter, EPA would expect to propose a 
categorical listing for CTRTs. The requested information included:
     A list of industry sectors, in addition to forest product 
mills, that burn railroad ties for energy recovery.
     The types of boilers (e.g., kilns, stoker boilers, 
circulating fluidized bed, etc.) that burn railroad ties for energy 
recovery.
     The traditional fuels and relative amounts (e.g., startup, 
30 percent, 100 percent) of these traditional fuels that could 
otherwise generally be burned in these types of units. The extent to 
which non-industrial boilers (e.g., commercial or residential boilers) 
burn CTRTs for energy recover.
     Laboratory analyses for contaminants known or reasonably 
suspected to be present in creosote-treated railroad ties, and 
contaminants known to be significant components of creosote, 
specifically polycyclic aromatic hydrocarbons (i.e., PAH-16), 
dibenzofuran, cresols, hexachlorobenzene, 2,4-dinitrotoluene, biphenyl, 
quinoline, and dioxins.\17\ See 81 FR 6723 for detailed responses to 
those questions.
---------------------------------------------------------------------------

    \17\ The Agency requested these analyses based on the limited 
information previously available concerning the chemical makeup of 
CTRTs. That limited information included one well-studied sample 
from 1990 (showing the presence of both PAHs and dibenzofuran), past 
TCLP results (which showing the presence of cresols, 
hexachlorobenzene and 2,4-dinitrotoluene), Material Safety Data 
Sheets for coal tar creosote (which showing the potential presence 
of biphenyl and quinoline), and the absence of dioxin analyses prior 
to combustion despite extensive dioxin analyses of post-combustion 
emissions.
---------------------------------------------------------------------------

3. February 2016 NHSM Final Rule
    As discussed in section II.B of this preamble, EPA stated in the 
February 2016 final rule that it had reviewed the information submitted 
from stakeholders regarding CTRTs and determined that the information 
received supported a categorical determination for those materials 
under certain conditions (see 40 CFR

[[Page 75788]]

241.4(a)(7)). That rule also indicated that, based on an August 21, 
2015 letter to Barnes Johnson, TWC requested that the Agency move 
forward on a subset of materials that were identified in a previous 
April 2013 petition. EPA stated in the February 2016 rule, the Agency 
had reviewed the TWC information on the three treated railroad ties, 
creosote borate, copper naphthenate, submitted on September 11, 2015 
and had requested additional contaminant data. Based on information 
provided to the Agency at the time, we believed these three treated 
railroad ties were candidates for categorical non-waste listings and 
expected to begin development of a proposed rule under 40 CFR 241.4(a) 
regarding those listings in the near future.

C. Scope of the Proposed Categorical Non-Waste Listing for OTRTs

    As discussed previously in section II.B of this preamble, TWC 
submitted letters and supporting documents to EPA seeking a categorical 
listing for OTRTs. The contaminants found in OTRTs are not materially 
different from the traditional fuels (fuel oil and/or biomass) that 
these facilities are designed to burn as fuel. Therefore, the Agency is 
proposing to list, as categorical non-wastes, processed OTRTs when used 
as fuels. The rationale for this proposal is discussed in detail in the 
following sections.

D. Rationale for Proposed Listing

1. Discard
    When deciding whether an NHSM should be listed as a categorical 
non-waste fuel in accordance with 40 CFR 241.4(b)(5), EPA first 
evaluates whether or not the NHSM has been discarded, and if not 
discarded, whether or not the material is legitimately used as a 
product fuel in a combustion unit. If the material has been discarded, 
EPA evaluates the NHSM as to whether it has been sufficiently processed 
into a material that is legitimately used as a product fuel.
    Data submitted by petitioners regarding OTRTs removed from service 
and processed was analogous to that for CTRTs. Specifically, OTRTs 
removed from service are sometimes temporarily stored in the railroad 
right-of-way or at another location selected by the reclamation 
company. This means that not all OTRTs originate from crossties removed 
from service in the same year; some OTRTs are processed from crossties 
removed from service in prior years and stored by railroads or removal/
reclamation companies until a contract for reclamation is in place.
    EPA is reiterating its statement from the February 8, 2016 final 
rule regarding cases where a railroad or reclamation company waits for 
more than a year to realize the value of OTRTs as a fuel. The Agency 
again concludes that OTRTs are removed from service and stored in a 
railroad right-of-way or location for long periods of time--that is, a 
year or longer, without a determination regarding their final end use 
(e.g., landscaping, as a fuel or landfilled) thus indicating that the 
material has been discarded and is a solid waste (see also the general 
discussion of discard at 76 FR 15463 in the March 2011 rule). Regarding 
any assertion that OTRTs are a valuable commodity in a robust market, 
the Agency would like to remind persons that NHSMs may have value in 
the marketplace and still be considered solid wastes.
2. Processing
    Since the OTRTs removed from service are considered discarded 
because they can be stored for long periods of time without a final 
determination regarding their final end use, in order for them to be 
considered a non-waste fuel, they must be processed, thus transforming 
the OTRTs into a product fuel that meets the legitimacy criteria.\18\ 
The Agency concludes that the processing of OTRTs described previously 
in section III.A.1 of this preamble meets the definition of processing 
in 40 CFR 241.2. As discussed in that section, processing includes 
operations that transform discarded NHSM into a non-waste fuel or non-
waste ingredient, including operations necessary to: remove or destroy 
contaminants; significantly improve the fuel characteristics (e.g., 
sizing or drying of the material, in combination with other 
operations); chemically improve the as-fired energy content; or improve 
the ingredient characteristics. Minimal operations that result only in 
modifying the size of the material by shredding do not constitute 
processing for the purposes of the definition. The Agency concludes 
that OTRTs meet the definition of processing in 40 CFR 241.3 because 
contaminant metals are removed in several steps and the fuel 
characteristics are significantly improved; specifically:
---------------------------------------------------------------------------

    \18\ Persons who concluded that their OTRTs are not discarded 
and thus are not subject to this categorical determination may 
submit an application to the EPA Regional Administrator that the 
material has not been discarded when transferred to a third party 
and is indistinguishable from a product fuel (76 FR 15551).
---------------------------------------------------------------------------

     Contaminants (e.g., spikes, plates, transmission wire and 
insulator bulbs) are removed during initial inspection by the user 
organization.
     Removal of contaminant metals occurs again at the 
reclamation facility using magnets; such removal may occur in multiple 
stages.
     The fuel characteristics of the material are improved when 
the crossties are ground or shredded to a specified size (typically 1-2 
inches) depending on the particular needs of the end-use combustor. The 
grinding may occur in one or more phases.
     Once the contaminant metals are removed and the OTRTs are 
ground, there may be additional screening to bring the material to a 
specified size.
3. Legitimacy Criteria
    EPA can list a discarded NHSM categorically as a non-waste fuel if 
it has been ``sufficiently processed,'' and meets the legitimacy 
criteria. The three legitimacy criteria to be evaluated are: (1) The 
NHSM must be managed as a valuable commodity, (2) the NHSM must have a 
meaningful heating value and be used as a fuel in a combustion unit to 
recover energy, and (3) the NHSM must have contaminants or groups of 
contaminants at levels comparable to or less than those in the 
traditional fuel the unit is designed to burn.\19\
---------------------------------------------------------------------------

    \19\ We note that even if the NHSM does not meet one or more of 
the legitimacy criteria, the Agency could still propose to list an 
NHSM categorically by balancing the legitimacy criteria with other 
relevant factors (see 40 CFR 241.4(b)(2).
---------------------------------------------------------------------------

i. Managed as a Valuable Commodity
    Data submitted \20\ indicates that OTRT processing and subsequent 
management is analogous to the processing of CTRTs outlined in the 
February 8, 2016 final categorical rule. The processing of OTRTs is 
correlated to the particular needs of the end-use combustor.
---------------------------------------------------------------------------

    \20\ See section III.D.4. for a description of EPA's review of 
all data submitted regarding meeting legitimacy criteria.
---------------------------------------------------------------------------

    The process begins when the railroad or utility company removes the 
old OTRTs from service. An initial inspection is conducted where non-
combustible materials are sorted out. OTRTs are stored in staging areas 
until shippable quantities are collected. Shippable quantities are 
transported via truck or rail to a reprocessing center.
    At the reprocessing center, pieces are again inspected, sorted, and 
non-combustible materials are removed. Combustible pieces then undergo 
size reduction and possible blending with compatible combustibles. Once 
the OTRTs meet the end use specification, they are then sold directly 
to the end-use combustor for energy recovery.

[[Page 75789]]

OTRTs are delivered to the end-use combustors via railcar and/or truck 
similar to delivery of traditional biomass fuels.
    After receipt, OTRTs are stockpiled similar to analogous biomass 
fuels (e.g., in fuel silos) to maximize dryness and minimize dust. 
While awaiting combustion at the end-user, which usually occurs within 
one day to a week of arrival, the OTRTs are also transferred and/or 
handled from storage in a manner consistent with the transfer and 
handling of biomass fuels. Procedures include screening by the end-use 
combustor, combining with other biomass fuels, and transferring to the 
combustor via conveyor belt or front-end loader.
    Since the storage of the processed material clearly does not exceed 
reasonable time frames and the processed ties are handled/treated 
similar to analogous biomass fuels by end-use combustors, OTRTs meet 
the criterion for being managed as a valuable commodity.
ii. Meaningful Heating Value and Used as a Fuel To Recover Energy
    EPA received the following information for the heating values of 
processed OTRTs: 6,867 Btu/lb for creosote-borate; 7,333 Btu/lb for 
copper naphthenate; 5,967 Btu/lb for copper naphthenate-borate; 5,232 
Btu/lb for mixed railroad ties containing 56% creosote, 41% creosote-
borate, 1% copper naphthenate, 2% copper naphthenate-borate; and 7,967 
Btu/lb for mixed ties containing 25% creosote, 25% creosote borate, 25% 
copper naphthenate and 25% copper naphthenate-borate.21 22 
In the March 2011 NHSM final rule, the Agency indicated that NHSMs with 
an energy value greater than 5,000 Btu/lb, as fired, are considered to 
have a meaningful heating value.\23\ Thus, OTRTs meet the criterion for 
meaningful heating value and used as a fuel to recover energy.
---------------------------------------------------------------------------

    \21\ Letter from Jeff Miller to Barnes Johnson, September 11, 
2015; see docket for this proposed rule.
    \22\ These values reflect averages from 2013 and 2015 data. 
Relevant lab data on Btu/lb for each types of processed OTRT can be 
viewed in the September and October 2015 letters from Jeff Miller to 
Barnes Johnson included in the docket.
    \23\ See 76 FR 15541.
---------------------------------------------------------------------------

iii. Contaminants Comparable to or Lower Than Traditional Fuels
    For each type of OTRT, EPA has compared the September 2015 data 
submitted on contaminant levels by petitioners to contaminant data for 
two traditional fuels: Biomass, including untreated clean wood, and 
fuel oil (petitioners did not provide data or request that contaminant 
comparisons be made to coal). The petitioner's data included samples 
taken from 15 different used creosote-borate ties, 15 different copper 
naphthenate-borate ties, 15 creosote ties, and 15 copper naphthenate 
ties. Each type of tie sample was divided into three groups of five tie 
samples each. This resulted in 12 total groups corresponding to the 
four different types ties. Each group was then isolated, mixed 
together, processed into a fuel-type consistency, and shipped to the 
laboratory for analysis.
    As noted previously, use of these types of ties are relatively new 
compared to creosote, so few have transitioned to fuel use at this 
time. To simulate that transition over time, three samples of unevenly-
blended tie material (56% creosote, 41% creosote-borate, 1% copper 
naphthenate, 2% copper naphthenate-borate) and three samples of equally 
blended tie material (25% creosote, 25% creosote-borate, 25% copper 
naphthenate, 25% copper naphthenate-borate) were analyzed. The lab 
analyzed three samples of each of tie-derived boiler fuel treated with 
creosote, creosote-borate, copper naphthenate and copper naphthenate-
borate. In addition, the lab analyzed three samples of equally-blended 
tie material, three samples of unevenly-blended tie material, and three 
samples of untreated wood for a total of 21 samples.
    In addition to September 2015 data, copper naphthenate-borate, and 
copper naphthenate test data had also been submitted in conjunction 
with TWC's earlier December 4, 2013 petition and are included in the 
following tables. As noted in section II.B of this preamble, the data 
did not have details on the number of samples collected. In addition, 
sulfur was measured using leachable anion techniques that do not 
provide results of the total contaminant content, and heat content was 
not measured. The results of the analysis of the 2015 and 2013 data are 
shown in the following tables.\24\
---------------------------------------------------------------------------

    \24\ Note for contaminant analyses, when making contaminant 
comparisons for purposes of meeting the legitimacy criterion, it 
would be appropriate in this circumstance to find that grouping of 
contaminants would not result in discard. For example, under the 
grouping concept, individual SVOC levels may be elevated above that 
of the traditional fuel, but the contaminant legitimacy criterion 
will be met as long as total SVOCs is comparable to or less than 
that of the traditional fuel. Such an approach is standard practice 
employed by the Agency in developing regulations and is consistent 
with monitoring standards under CAA sections 112 and 129. See 78 FR 
9146, February 7, 2013, for further findings that relate to the 
issue of grouping contaminants for purposes of determining discard.
---------------------------------------------------------------------------

    Copper Naphthenate

                           Copper Naphthenate
------------------------------------------------------------------------
                                     Copper
                                   naphthenate     Biomass/
          Contaminant             railroad ties   Untreated    Fuel Oil
                                   contaminant     wood \b\       \b\
                                 levels \a\ \f\
------------------------------------------------------------------------
                     Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony.......................  <1.4            ND-26        ND-15.7
Arsenic........................  0.53-0.93       ND-298       ND-13
Beryllium......................  <0.60-0.05      ND-10        ND-19
Cadmium........................  <0.28-0.20      ND-17        ND-1.4
Chromium.......................  0.22-0.50       ND-340       ND-37
Cobalt.........................  <6.0-0.81       ND-213       ND-8.5
Lead...........................  <0.36-3.5       ND-340       ND-56.8
Manganese......................  7.1-166         ND-15,800    ND-3,200
Mercury........................  <0.20           ND-1.1       ND-0.2
Nickel.........................  0.79-1.1        ND-540       ND-270
Selenium.......................  0.41-0.84       ND-9.0       ND-4
------------------------------------------------------------------------
                   Non-Metal Elements (ppm-dry basis)
------------------------------------------------------------------------
Chlorine.......................  <100            ND-5,400     ND-1,260

[[Page 75790]]

 
Fluorine.......................  <100            ND-300       ND-14
Nitrogen.......................  <500            200-39,500   42-8,950
Sulfur.........................  190-240         ND-8,700     ND-57,000
------------------------------------------------------------------------
            Semivolatile Hazardous Pollutants (ppm-dry basis)
------------------------------------------------------------------------
Acenaphthene...................  3.0-95          ND-50        111
Acenaphthylene.................  <1.3            ND-4         4.1
Anthracene.....................  <1.3-6.3        0.4-87       96
Benzo[a]anthracene.............  <1.3            ND-62        41-1,900
Benzo[a]pyrene.................  <1.3            ND-28        0.60-960
Benzo[b]fluoranthene...........  <1.3            ND-42        11-540
Benzo[ghi]perylene.............  <1.3            ND-9         11.4
Benzo[k]fluoranthene...........  <1.3            ND-16        0.6
Chrysene.......................  <1.3            ND-53        2.2-2,700
Dibenz[a,h]anthracene..........  <1.3            ND-3         4.0
Fluoranthene...................  <1.3-6.5        0.6-160      31.6-240
Fluorene.......................  4.5-53          ND-40        3,600
Indeno[1,2,3-cd]pyrene.........  <1.3            ND-12        2.3
Naphthalene....................  8.2-80          ND-38        34.3-4,000
Phenanthrene...................  8.2-77          0.9-190      0-116,000
Pyrene.........................  <1.3-15         0.2-160      23-178
16-PAH.........................  49-298          5-921        3,900-54,7
                                                               00
Pentachlorophenol..............  <30 \g\         ND-1         --
Biphenyl.......................  -- \e\          --           1,000-1,20
                                                               0
                                ----------------------------------------
    Total SVOC \c\.............  77-328          5-922        4,900-54,7
                                                               00
------------------------------------------------------------------------
   Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm--dry
                                 basis)
------------------------------------------------------------------------
Benzene........................  <0.69           --           ND-75
                                 --
Phenol.........................  -- \e\          --           ND-7,700
Styrene........................  <0.69           --           ND-320
Toluene........................  <0.69           --           ND-380
Xylenes........................  <0.69           --           ND-3,100
Cumene.........................  -- \e\          --           6,000-8,00
                                                               0
Ethyl benzene..................  <0.69           --           22-1,270
Formaldehyde...................  -- \e\          1.6-27       --
Hexane.........................  -- \e\          --           50-10,000
                                ----------------------------------------
    Total VOC \d\..............  <3.4            1.6-27       6,072-19,8
                                                               10
------------------------------------------------------------------------
\a\ Data provided by Treated Wood Council on April 3, 2013, September
  11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for
  Comparison, November 29, 2011, available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn
  from various literature sources and from data submitted to USEPA,
  Office of Air Quality Planning and Standards (OAQPS). SVOC values from
  2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and
  maximum values for each contaminant. This is because minimum and
  maximum concentrations for individual VOCs and SVOCs do not always
  come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing,
  but this analyte is included in the SVOC group, so is not reflected
  here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated
  wood, but these are not expected to be present in treated wood
  formulation being analyzed based on preservative chemistry and results
  from previous CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting
  limit, not the method detection limit. Therefore, there are many cases
  where the non-detect value may be greater than another test's detected
  value due to analysis-specific RLs being different between individual
  tests (i.e., differences in tested amount or analyzer calibration
  range adjustments). If result is less than the method detection limit
  (MDL), the method reporting limit (MRL), which is always greater than
  MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on
  preservative chemistry.

    As indicated, railroad ties treated with copper naphthenate have 
contaminants that are comparable to or less than those in biomass or 
fuel oil. Given that these railroad ties are a type of treated wood 
biomass, such ties can be combusted in units designed to burn biomass 
or biomass and fuel oil.
    Copper Naphthenate-Borate

[[Page 75791]]



                        Copper Naphthenate-Borate
------------------------------------------------------------------------
                                     Copper
                                  naphthenate-
                                     borate        Biomass/    Fuel oil
          Contaminant             railroad ties   Untreated       \b\
                                   contaminant     wood \b\
                                 levels \a\ \f\
------------------------------------------------------------------------
                     Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony.......................  <1.4            ND-26        ND-15.7
Arsenic........................  0.52-0.72       ND-298       ND-13
Beryllium......................  <0.67           ND-10        ND-19
Cadmium........................  <0.31-0.078     ND-17        ND-1.4
Chromium.......................  0.11-0.78       ND-340       ND-37
Cobalt.........................  <7.5-0.74       ND-213       ND-8.5
Lead...........................  <0.38-4.0       ND-340       ND-56.8
Manganese......................  14-170          ND-15,800    ND-3,200
Mercury........................  <0.15           ND-1.1       ND-0.2
Nickel.........................  0.46-2.0        ND-540       ND-270
Selenium.......................  <0.64-0.52      ND-9.0       ND-4
------------------------------------------------------------------------
                   Non-Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Chlorine.......................  <100            ND-5,400     ND-1,260
Fluorine.......................  <100            ND-300       ND-14
Nitrogen.......................  <500            200-39,500   42-8,950
Sulfur.........................  140-170         ND-8,700     ND-57,000
------------------------------------------------------------------------
           Semivolatile Hazardous Pollutants (ppm--dry basis)
------------------------------------------------------------------------
Acenaphthene...................  4.8-17          ND-50        111
Acenaphthylene.................  <1.2-0.9        ND-4         4.1
Anthracene.....................  <1.2-7.2        0.4-87       96
Benzo[a]anthracene.............  <1.2-3.7        ND-62        41-1,900
Benzo[a]pyrene.................  <1.2-1.4        ND-28        0.60-960
Benzo[b]fluoranthene...........  <1.2-3.9        ND-42        11-540
Benzo[ghi]perylene.............  <1.2            ND-9         11.4
Benzo[k]fluoranthene...........  <1.2-20         ND-16        0.6
Chrysene.......................  <1.2-6.6        ND-53        2.2-2,700
Dibenz[a,h]anthracene..........  <1.2            ND-3         4.0
Fluoranthene...................  <1.2-20         0.6-160      31.6-240
Fluorene.......................  2.2-16          ND-40        3,600
Indeno[1,2,3-cd]pyrene.........  <1.2            ND-12        2.3
Naphthalene....................  5.2-82          ND-38        34.3-4,000
Phenanthrene...................  3.6-43          0.9-190      0-116,000
Pyrene.........................  <1.3-19         0.2-160      23-178
16-PAH.........................  39-145          5-921        3,900-54,7
                                                               00
Pentachlorophenol..............  <28 \g\         ND-1         --
Biphenyl.......................  -- \e\          --           1,000-1,20
                                                               0
                                ----------------------------------------
    Total SVOC \c\.............  66-173          5-922        4,900-54,7
                                                               00
------------------------------------------------------------------------
   Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm--dry
                                 basis)
------------------------------------------------------------------------
Benzene........................  <0.77           --           ND-75
                                 --              --
Phenol.........................  -- \e\          --           ND-7,700
Styrene........................  <0.77           --           ND-320
Toluene........................  <0.77           --           ND-380
Xylenes........................  <0.77           --           ND-3,100
Cumene.........................  -- \e\          --           6,000-8,00
                                                               0
Ethyl benzene..................  <0.77           --           22-1,270
Formaldehyde...................  -- \e\          1.6-27       --
Hexane.........................  -- \e\          --           50-10,000
                                ----------------------------------------
    Total VOC \d\..............  <3.8            1.6-27       6,072-19,8
                                                               10
------------------------------------------------------------------------
\a\ Data provided by Treated Wood Council on April 3, 2013, September
  11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for
  Comparison, November 29, 2011, available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn
  from various literature sources and from data submitted to USEPA,
  Office of Air Quality Planning and Standards (OAQPS). SVOC values from
  2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and
  maximum values for each contaminant. This is because minimum and
  maximum concentrations for individual VOCs and SVOCs do not always
  come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing,
  but this analyte is included in the SVOC group, so is not reflected
  here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated
  wood, but these are not expected to be present in treated wood
  formulation being analyzed based on preservative chemistry and results
  from previous CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting
  limit, not the method detection limit. Therefore, there are many cases
  where the non-detect value may be greater than another test's detected
  value due to analysis-specific RLs being different between individual
  tests (i.e., differences in tested amount or analyzer calibration
  range adjustments). If result is less than the method detection limit
  (MDL), the method reporting limit (MRL), which is always greater than
  MDL, was used by the lab.

[[Page 75792]]

 
\g\ Not expected in the treated wood formulation being tested based on
  preservative chemistry.

    As indicated, railroad ties treated with copper naphthenate-borate 
have contaminants that are comparable to or less than those in biomass 
or fuel oil. Given that these railroad ties are a type of treated wood 
biomass, such ties can be combusted in units designed to burn biomass 
or biomass and fuel oil.
    Creosote-Borate

                             Creosote-Borate
------------------------------------------------------------------------
                                    Creosote-
                                     borate        Biomass/
          Contaminant             railroad ties   untreated    Fuel oil
                                   contaminant     wood \b\       \b\
                                 levels \a\ \f\
------------------------------------------------------------------------
                     Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony.......................  <1.3            ND-26        ND-15.7
Arsenic........................  <1.3-0.80       ND-298       ND-13
Beryllium......................  <0.60-0.032     ND-10        ND-19
Cadmium........................  0.059-0.25      ND-17        ND-1.4
Chromium.......................  0.10-1.1        ND-340       ND-37
Cobalt.........................  <6.0-0.22       ND-213       ND-8.5
Lead...........................  <0.37-1.8       ND-340       ND-56.8
Manganese......................  22-140          ND-15,800    ND-3,200
Mercury........................  <0.15-0.066     ND-1.1       ND-0.2
Nickel.........................  0.71-1.8        ND-540       ND-270
Selenium.......................  0.59-1.4        ND-9.0       ND-4
------------------------------------------------------------------------
                   Non-Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Chlorine.......................  <100            ND-5,400     ND-1,260
Fluorine.......................  <100            ND-300       ND-14
Nitrogen.......................  <500            200-39,500   42-8,950
Sulfur.........................  170-180         ND-8,700     ND-57,000
------------------------------------------------------------------------
           Semivolatile Hazardous Pollutants (ppm--dry basis)
------------------------------------------------------------------------
Acenaphthene...................  600-2,200       ND-50        111
Acenaphthylene.................  17-96           ND-4         4.1
Anthracene.....................  350-2,000       0.4-87       96
Benzo[a]anthracene.............  200-1,500       ND-62        41-1,900
Benzo[a]pyrene.................  62-500          ND-28        0.60-960
Benzo[b]fluoranthene...........  110-960         ND-42        11-540
Benzo[ghi]perylene.............  13-170          ND-9         11.4
Benzo[k]fluoranthene...........  40-320          ND-16        0.6
Chrysene.......................  210-1,300       ND-53        2.2-2,700
Dibenz[a,h]anthracene..........  <21-58          ND-3         4.0
Fluoranthene...................  1,100-8,400     0.6-160      31.6-240
Fluorene.......................  500-2,200       ND-40        3,600
Indeno[1,2,3-cd]pyrene.........  14-170          ND-12        2.3
Naphthalene....................  660-2,900       ND-38        34.3-4,000
Phenanthrene...................  2,000-12,000    0.9-190      0-116,000
Pyrene.........................  780-5,200       0.2-160      23-178
16-PAH.........................  6,600-38,000    5-921        3,900-54,7
                                                               00
Pentachlorophenol..............  <790 \g\        ND-1         --
Biphenyl.......................  137-330 \h\     --           1,000-1,20
                                                               0
                                ----------------------------------------
    Total SVOC \c\.............  7,200-39,000    5-922        4,900-54,7
                                                               00
------------------------------------------------------------------------
   Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm--dry
                                 basis)
------------------------------------------------------------------------
Benzene........................  <3.9            --           ND-75
                                 --
Phenol.........................  -- \e\          --           ND-7,700
Styrene........................  <3.9            --           ND-320
Toluene........................  <3.9            --           ND-380
Xylenes........................  <3.9            --           ND-3,100
Cumene.........................  -- \e\          --           6,000-8,00
                                                               0
Ethyl benzene..................  <3.9            --           22-1,270
Formaldehyde...................  -- \e\          1.6-27       --
Hexane.........................  -- \e\          --           50-10,000
                                ----------------------------------------
    Total VOC \d\..............  <20             1.6-27       6,072-19,8
                                                               10
------------------------------------------------------------------------
\a\ Data provided by Treated Wood Council on September 11, 2015 and
  October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for
  Comparison, November 29, 2011, available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn
  from various literature sources and from data submitted to USEPA,
  Office of Air Quality Planning and Standards (OAQPS). SVOC values from
  2013 IEc data that will be available in the rule docket.

[[Page 75793]]

 
\c\ Total SVOC ranges do not represent a simple sum of the minimum and
  maximum values for each contaminant. This is because minimum and
  maximum concentrations for individual VOCs and SVOCs do not always
  come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing,
  but this analyte is included in the SVOC group, so is not reflected
  here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated
  wood, but these are not expected to be present in treated wood
  formulation being analyzed based on preservative chemistry and results
  from previous CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting
  limit, not the method detection limit. Therefore, there are many cases
  where the non-detect value may be greater than another test's detected
  value due to analysis-specific RLs being different between individual
  tests (i.e., differences in tested amount or analyzer calibration
  range adjustments). If result is less than the method detection limit
  (MDL), the method reporting limit (MRL), which is always greater than
  MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on
  preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for
  treated wood type based on data from previous CTRT testing.

    Semi-volatile organic compound (SVOC) levels in creosote-borate 
processed railroad ties are not comparable to biomass. Given that 
creosote-borate railroad ties are a type of treated wood biomass, and 
any unit burning these ties typically burns untreated wood, the EPA 
considered two scenarios.
    In the first scenario, where a combustion unit is designed to only 
burn biomass, EPA compared contaminant levels in creosote-borate to 
contaminant levels in biomass. In this scenario, the total SVOC levels 
can reach 39,000 ppm, driven by high levels of polycyclic aromatic 
hydrocarbons (PAHs).\25\ These compounds are very low levels in clean 
wood and biomass, and the contaminants are therefore not comparable in 
this instance. In fact, they are present at orders of magnitude higher 
than found in clean wood and biomass.
---------------------------------------------------------------------------

    \25\ We note that for several SVOCs--cresols, hexachlorobenzene, 
and 2,4-dinitrotoluene, which were expected to be in creosote, and 
for which information was specifically requested in the February 7, 
2013 NHSM final rule (78 FR 9111), the data demonstrate that they 
were not detectable, or were present at levels so low to be 
considered comparable.
---------------------------------------------------------------------------

    In the second scenario, a combustion unit is designed to burn 
biomass and fuel oil. As previously mentioned, SVOCs are present in 
CTRTs (up to 39,000 ppm) at levels well within the range observed in 
fuel oil (up to 54,700 ppm). Therefore, creosote-borate railroad ties 
have comparable contaminant levels to other fuels combusted in units 
designed to burn both biomass and fuel oil, and as such, meet this 
criterion if used in facilities that are designed to burn both biomass 
and fuel oil.\26\
---------------------------------------------------------------------------

    \26\ As discussed previously, the March 21, 2011 NHSM final rule 
(76 FR 15456), noting the presence of hexachlorobenzene and 
dinitrotoluene, suggested that creosote-treated lumber include 
contaminants at levels that are not comparable to those found in 
wood or coal, the fuel that creosote-treated wood would replace, and 
would thus be considered solid wastes. The February 2016 final rule 
differs in several respects from the conclusions in the March 2011 
rule. The February 2016 final rule concludes that CTRTs are a 
categorical non-waste when combusted in units designed to burn both 
fuel oil and biomass. The March 2011 rule, using 1990 data on 
railroad cross ties, was based on contaminant comparisons to coal 
and biomass and not fuel oil. As discussed above, when compared to 
fuel oil, total SVOC contaminant concentrations (which would include 
dinitrotoluene and hexachlorobenzene) in CTRTs would be less that 
those found in fuel oil, and in fact, the 2012 data referenced in 
this final rule showed non-detects for those two contaminants.
---------------------------------------------------------------------------

    As stated in the preamble to the February 7, 2013, NHSM final rule, 
combustors may burn NHSMs as a product fuel if they compare 
appropriately to any traditional fuel the unit can or does burn (78 FR 
9149). Combustion units are often designed to burn multiple traditional 
fuels, and some units can and do rely on different fuel types at 
different times based on availability of fuel supplies, market 
conditions, power demands, and other factors. Under these 
circumstances, it is arbitrary to restrict the combustion for energy 
recovery of NHSMs based on contaminant comparison to only one 
traditional fuel if the unit could burn a second traditional fuel 
chosen due to such changes in fuel supplies, market conditions, power 
demands or other factors. If a unit can burn both a solid and liquid 
fuel, then comparison to either fuel would be appropriate.
    In order to make comparisons to multiple traditional fuels, units 
must be designed to burn those fuels. If a facility compares 
contaminants in an NHSM to a traditional fuel a unit is not designed to 
burn, and that material is highly contaminated, a facility would then 
be able to burn excessive levels of waste components in the NHSM as a 
means of discard. Such NHSMs would be considered wastes regardless of 
any fuel value (78 FR 9149).\27\ Accordingly, the ability to burn a 
fuel in a combustion unit does have a basic set of requirements, the 
most basic of which is the ability to feed the material into the 
combustion unit. The unit must also be able to ensure the material is 
well-mixed and maintain temperatures within unit specifications.
---------------------------------------------------------------------------

    \27\ 78 FR 9149 states ``If a NHSM does not contain contaminants 
at levels comparable to or lower than those found in any [emphasis 
added] traditional fuel that a combustion unit could burn, then it 
follows that discard could be occurring if the NHSM were combusted. 
Whether contaminants in these cases would be destroyed or discarded 
through releases to the air, they could not be considered a normal 
part of a legitimate fuel and the NHSM would be considered a solid 
waste when used as a fuel in that combustion unit.''
---------------------------------------------------------------------------

    Mixed Treatments-Creosote, Borate, Copper Naphthenate

                               Mix 1-1-1-1
------------------------------------------------------------------------
                                  Mixed railroad
                                ties  (25%C-25%CB-
                                  25%CuN-25%CuNB)   Biomass/    Fuel oil
          Contaminant               contaminant     untreated     \b\
                                  levels \a\ \f\    wood \b\
 
------------------------------------------------------------------------
                     Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony......................  <1.4               ND-26       ND-15.7
Arsenic.......................  <1.5-0.81          ND-298      ND-13
Beryllium.....................  <0.70              ND-10       ND-19
Cadmium.......................  0.15-0.38          ND-17       ND-1.4
Chromium......................  0.15-0.17          ND-340      ND-37
Cobalt........................  <7.0-0.07          ND-213      ND-8.5
Lead..........................  0.50-0.81          ND-340      ND-56.8
Manganese.....................  110-190            ND-15,800   ND-3,200
Mercury.......................  <0.15-0.06         ND-1.1      ND-0.2
Nickel........................  0.75-1.4           ND-540      ND-270

[[Page 75794]]

 
Selenium......................  <0.66-0.50         ND-9.0      ND-4
------------------------------------------------------------------------
                   Non-Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Chlorine......................  <100               ND-5,400    ND-1,260
Fluorine......................  <100               ND-300      ND-14
Nitrogen......................  <500               200-39,500  42-8,950
Sulfur........................  140-210            ND-8,700    ND-57,000
------------------------------------------------------------------------
           Semivolatile Hazardous Pollutants (ppm--dry basis)
------------------------------------------------------------------------
Acenaphthene..................  500-1,100          ND-50       111
Acenaphthylene................  12-25              ND-4        4.1
Anthracene....................  290-1,100          0.4 -87     96
Benzo[a]anthracene............  140-350            ND-62       41-1,900
Benzo[a]pyrene................  47-120             ND-28       0.60-960
Benzo[b]fluoranthene..........  83-210             ND-42       11-540
Benzo[ghi]perylene............  9.4-23             ND-9        11.4
Benzo[k]fluoranthene..........  30-64              ND-16       0.6
Chrysene......................  160-360            ND-53       2.2-2,700
Dibenz[a,h]anthracene.........  <7.2-4.7           ND-3        4.0
Fluoranthene..................  800-2,100          0.6-160     31.6-240
Fluorene......................  350-1,000          ND-40       3,600
Indeno[1,2,3-cd]pyrene........  10-28              ND-12       2.3
Naphthalene...................  320-580            ND-38       34.3-4,00
                                                                0
Phenanthrene..................  1,300-3,800        0.9-190     0-116,000
Pyrene........................  520-1,400          0.2-160     23-178
16-PAH........................  4,500-12,000       5-921       3,900-54,
                                                                700
Pentachlorophenol.............  <330 \g\           ND-1        .........
Biphenyl......................  137-330 \h\        ..........  1,000-1,2
                                                                00
                               -----------------------------------------
    Total SVOC \c\............  4,800-13,000       5-922       4,900-54,
                                                                700
------------------------------------------------------------------------
   Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm--dry
                                 basis)
------------------------------------------------------------------------
Benzene.......................  <1.1               --          ND-75
                                --
Phenol........................  -- \e\             --          ND-7,700
Styrene.......................  <1.1               --          ND-320
Toluene.......................  <1.1               --          ND-380
Xylenes.......................  <1.1               --          ND-3,100
Cumene........................  -- \e\             --          6,000-8,0
                                                                00
Ethyl benzene.................  <1.1               --          22-1,270
Formaldehyde..................  -- \e\             1.6-27      --
Hexane........................  -- \e\             --          50-10,000
    Total VOC \d\.............  <5.3               1.6-27      6,072-19,
                                                                810
------------------------------------------------------------------------
\a\ Data provided by Treated Wood Council on September 11, 2015 and
  October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for
  Comparison, November 29, 2011, available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn
  from various literature sources and from data submitted to USEPA,
  Office of Air Quality Planning and Standards (OAQPS). SVOC values from
  2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and
  maximum values for each contaminant. This is because minimum and
  maximum concentrations for individual VOCs and SVOCs do not always
  come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing,
  but this analyte is included in the SVOC group, so is not reflected
  here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated
  wood, but these are not expected to be present in treated wood
  formulation being analyzed based on preservative chemistry and results
  from previous CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting
  limit, not the method detection limit. Therefore, there are many cases
  where the non-detect value may be greater than another test's detected
  value due to analysis-specific RLs being different between individual
  tests (i.e., differences in tested amount or analyzer calibration
  range adjustments). If result is less than the method detection limit
  (MDL), the method reporting limit (MRL), which is always greater than
  MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on
  preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for
  treated wood type based on data from previous CTRT testing.


[[Page 75795]]


                              Mix 56-41-1-2
------------------------------------------------------------------------
                                 Mixed railroad
                                  ties  (56%C-
                                 41%CB-  1%CuN-    Biomass/    Fuel oil
          Contaminant               2%CuNB)       untreated       \b\
                                  contaminant      wood \b\
                                 levels \a\ \f\
------------------------------------------------------------------------
                     Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony......................  <1.4             ND-26        ND-15.7
Arsenic.......................  <1.4-0.65        ND-298       ND-13
Beryllium.....................  <0.68            ND-10        ND-19
Cadmium.......................  0.08-0.09        ND-17        ND-1.4
Chromium......................  0.12-0.78        ND-340       ND-37
Cobalt........................  <6.8-0.18        ND-213       ND-8.5
Lead..........................  <0.44-0.93       ND-340       ND-56.8
Manganese.....................  47-77            ND-15,800    ND-3,200
Mercury.......................  <0.13-0.03       ND-1.1       ND-0.2
Nickel........................  0.50-0.99        ND-540       ND-270
Selenium......................  0.56-0.68        ND-9.0       ND-4
------------------------------------------------------------------------
                   Non-Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Chlorine......................  <100             ND-5,400     ND-1,260
Fluorine......................  <100             ND-300       ND-14
Nitrogen......................  <500             200-39,500   42-8,950
Sulfur........................  230-280          ND-8,700     ND-57,000
------------------------------------------------------------------------
           Semivolatile Hazardous Pollutants (ppm--dry basis)
------------------------------------------------------------------------
Acenaphthene..................  1,500-1,800      ND-50        111
Acenaphthylene................  31-40            ND-4         4.1
Anthracene....................  760-1,100        0.4-87       96
Benzo[a]anthracene............  390-490          ND-62        41-1,900
Benzo[a]pyrene................  150-200          ND-28        0.60-960
Benzo[b]fluoranthene..........  230-310          ND-42        11-540
Benzo[ghi]perylene............  28-56            ND-9         11.4
Benzo[k]fluoranthene..........  93-130           ND-16        0.6
Chrysene......................  390-520          ND-53        2.2-2,700
Dibenz[a,h]anthracene.........  <28              ND-3         4.0
Fluoranthene..................  2,000-2,700      0.6-160      31.6-240
Fluorene......................  1,100-1,300      ND-40        3,600
Indeno[1,2,3-cd]pyrene........  32-52            ND-12        2.3
Naphthalene...................  890-1,200        ND-38        34.3-4,000
Phenanthrene..................  3,600-4,500      0.9-190      0-116,000
Pyrene........................  1,300-1,800      0.2-160      23-178
16-PAH........................  13,000-16,000    5-921        3,900-54,7
                                                               00
Pentachlorophenol.............  <630 \g\         ND-1         ..........
Biphenyl......................  137-330 \h\      ...........  1,000-1,20
                                                               0
                               -----------------------------------------
    Total SVOC \c\............  13,000-17,000    5-922        4,900-54,7
                                                               00
------------------------------------------------------------------------
   Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm--dry
                                 basis)
------------------------------------------------------------------------
Benzene.......................  <2.3             ...........  ND-75
                                --
Phenol........................  -- \e\           --           ND-7,700
Styrene.......................  <2.3             --           ND-320
Toluene.......................  <2.3             --           ND-380
Xylenes.......................  <2.3             --           ND-3,100
Cumene........................  -- \e\           --           6,000-8,00
                                                               0
Ethyl benzene.................  <2.3             --           22-1,270
Formaldehyde..................  -- \e\           1.6-27       --
Hexane........................  -- \e\           --           50-10,000
                               -----------------------------------------
    Total VOC \d\.............  <12              1.6-27       6,072-19,8
                                                               10
------------------------------------------------------------------------
\a\ Data provided by Treated Wood Council on September 11, 2015 and
  October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for
  Comparison, November 29, 2011, available at http://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn
  from various literature sources and from data submitted to USEPA,
  Office of Air Quality Planning and Standards (OAQPS). SVOC values from
  2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and
  maximum values for each contaminant. This is because minimum and
  maximum concentrations for individual VOCs and SVOCs do not always
  come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing,
  but this analyte is included in the SVOC group, so is not reflected
  here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated
  wood, but these are not expected to be present in treated wood
  formulation being analyzed based on preservative chemistry and results
  from previous CTRT testing (i.e., not present in CTRT ties).

[[Page 75796]]

 
\f\ Non-detects are indicated by ``<'' preceding the method reporting
  limit, not the method detection limit. Therefore, there are many cases
  where the non-detect value may be greater than another test's detected
  value due to analysis-specific RLs being different between individual
  tests (i.e., differences in tested amount or analyzer calibration
  range adjustments). If result is less than the method detection limit
  (MDL), the method reporting limit (MRL), which is always greater than
  MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on
  preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for
  treated wood type based on data from previous CTRT testing.

    In the mixed treated wood scenarios above, as previously discussed, 
SVOCs are present (up to 17,000 ppm) at levels well within the range 
observed in fuel oil (up to 54,700 ppm). Therefore, mixed railroad ties 
with creosote, borate and copper naphthenate have comparable 
contaminant levels to other fuels combusted in units designed to burn 
both biomass and fuel oil, and as such, meet this criterion if used in 
facilities that are designed to burn both biomass and fuel oil.
4. OTRT Sampling and Analysis Data History
    The data collection supporting the OTRT non-waste determination has 
been based on several rounds of data submittals by TWC followed by EPA 
questions and comments on the data provided. We have described the 
process of forming the OTRT data set, and all materials provided by TWC 
are available in the docket to this rulemaking.
    The TWC submitted data on various wood preservative types, 
including those referred to as OTRTs, in their April 3, 2013 petition 
letter requesting a categorical determination that all preserved wood 
types were non-waste fuels. However, the contaminant comparison data 
presented in the petition were incomplete and not based on established 
analytical data. The EPA response to TWC requested submittal of 
analytical data to determine contaminant concentrations in the OTRT 
wood.
    In November 2013, TWC responded to EPA's request, submitting 
laboratory reports on analyses of the various preservative wood types, 
including OTRTs. The EPA reviewed the laboratory reports and 
techniques, and determined that there were limited data points 
available (i.e., one per preservative type) and that the analytical 
techniques for several contaminants (chlorine, nitrogen, sulfur, and 
fluorine) were not appropriate to provide information on the entire 
preserved wood sample as combusted, reflecting only a leachable 
component. Furthermore, EPA questioned the representativeness of the 
samples being analyzed and the repeatability of the analyses.
    In August, 2015, TWC performed additional sampling and analyses to 
address these deficiencies in the data. In response to EPA's concerns 
on previous data, and as described previously, TWC developed a sampling 
program in which 15 OTRT railroad ties of each preservative type were 
collected from various geographical areas. These 15 ties were then 
separated into three 5 tie groups, then processed into a boiler-fuel 
consistency using commercial processing techniques. A sample of each 5-
tie group was then shipped to an independent laboratory for analysis, 
thereby producing 3 data points for each preservative type. TWC also 
prepared two blends: One with equal portions of creosote, creosote-
borate, copper naphthenate, and copper naphthenate-borate; and the 
second a weighted blend of these tie types in proportion to current 
usage ratios of each preservative chemistry. These blends samples were 
analyzed in triplicate, for a total of 18 samples being analyzed (i.e., 
three from each tie sample group). Two laboratories were used by TWC to 
perform the analysis: One laboratory analyzed metals, mercury, 
semivolatiles, and heat of combustion; and the other laboratory 
analyzed volatiles, chlorine, fluorine, and nitrogen. All methods used 
were EPA or ASTM methods, and were appropriate for the materials being 
tested. No specific sampling methodology was employed in taking the 
samples from the 5-ties group.
    The EPA reviewed the 2015 test data, which was provided by TWC on 
September 11, 2015, and provided TWC with additional follow-up 
questions and clarifications, including the specific sources of the 
ties. TWC's response noted the sources of ties for each chemistry and 
indicated that the ties generally originated in the southeast, but 
there are also ties from Pennsylvania, South Dakota, and Kentucky 
represented within the TWC data set. The EPA also noted some exceptions 
and flags within the analytical report, such as sample coolers upon 
receipt at the lab were outside the required temperature criterion; 
surrogate recoveries for semivolatile samples (which represent 
extraction efficiency within a sample matrix) were sometimes lower or 
higher than those for samples containing creosote-treated wood; and 
dilution factors (dilution is used when the sample is higher in 
concentration than can be analyzed) for creosote-treated wood samples 
were high (up to 800). The laboratory noted these issues in the report 
narrative, but concluded that there were no corrective actions 
necessary.
    Finally, EPA requested further information on these issues noted in 
the report narrative, as well as supporting quality assurance 
documentation from the laboratories. With respect to surrogate 
recoveries and dilutions, the lab indicated that the high dilutions 
were required for the creosote-containing matrix to avoid saturation of 
the detector instrument.\28\ Also, the shipping cooler temperature 
criterion of 4 degrees Celsius, which EPA views as standard practice, 
is not wholly applicable in this case due to the nature of the samples. 
Since the ties were used and stored after being taken out of service in 
ambient atmosphere and are not biologically active, the 4 degree 
Celsius receipt condition is not necessary, but was noted in the report 
as part of laboratory standard operating procedure.
---------------------------------------------------------------------------

    \28\ Samples with concentrations exceeding the calibration range 
must be diluted to fall within the calibration range. The more a 
sample is diluted, the higher the reporting limit. Sample dilution 
is required when the concentration of a compound exceeds the amount 
that produces a full-scale response. At that point the detector 
becomes saturated and fails to respond to additional target 
compound(s). Diluting samples to accommodate the high-concentrations 
can reduce the concentration of the target analytes to levels where 
they can no longer be detected.
---------------------------------------------------------------------------

E. Summary and Request for Comment

    EPA believes it has sufficient information to propose to list OTRTs 
categorically as non-waste fuels. For units combusting copper-
naphthenate-borate and/or copper naphthenate railroad ties, such 
materials could be combusted in units designed to burn biomass or 
biomass and fuel oil. For units combusting railroad ties containing 
cresosote, including creosote-borate or any mixtures of ties containing 
cresosote, borate and copper naphthenate, such materials must be burned 
in combustion units that are designed to burn both biomass and fuel 
oil. The Agency would consider units to meet this requirement if the 
unit combusts fuel oil as part of normal operations and not solely as 
part of start up or shut down operations.
    Consistent with the approach for CTRTs outlined in the February 
2016 rule, the Agency is also proposing that units combusting railroad 
ties treated

[[Page 75797]]

with cresosote-borate (or other mixtures of treated railroad ties 
containing creosote, borate and copper naphthenate) in units designed 
to burn biomass and fuel oil, could also combust those materials in 
units at major pulp and paper mills or units at power production 
facilities subject to 40 CFR part 63, subpart DDDDD (Boiler MACT) that 
combust such ties 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. These ties may 
continue to be combusted as a product fuel only if certain conditions 
are met, which are intended to ensure that they are not being 
discarded:
     Must be combusted in existing (i.e., commenced 
construction prior to April 14, 2014) stoker, bubbling bed, fluidized 
bed or hybrid suspension grate boilers; and
     Must comprise no more than 40 percent of the fuel that is 
used on an annual heat input basis.
    The standard would be applicable to existing units burning 
creosote-borate, and mixtures of creosote, copper naphthenate and 
borate treated railroad ties that had been designed to burn fuel oil 
and biomass and have been modified to burn natural gas. The standard 
will also apply if an existing unit designed to burn fuel oil and 
biomass is modified at some point in the future.
    The approach addresses only the circumstance where contaminants in 
these railroad ties are comparable to or less than the traditional 
fuels the unit was originally designed to burn (both fuel oil and 
biomass) but that design was modified in order to combust natural gas. 
The approach is not a general means to circumvent the contaminant 
legitimacy criterion by allowing combustion of any NHSM with elevated 
contaminant levels, i.e., levels not comparable to the traditional fuel 
the unit is currently designed to burn. The particular facilities in 
this case had used these ties and would clearly be in compliance with 
the legitimacy criteria if they did not switch to the cleaner natural 
gas fuel. Information indicating that these ties are an important part 
of the fuel mix due to the consistently lower moisture content and 
higher Btu value, as well as the benefits of drier more consistent fuel 
to combustion units with significant swings in steam demand, further 
suggest that discard is not occurring. Therefore, EPA believes it 
appropriate to balance other relevant factors in this categorical non-
waste determination and for the Agency to decide that the switching to 
the cleaner natural gas would not render these materials a waste fuel.
    This case is no different from the Agency's determination in the 
February 2016 rule with respect to CTRTs. This determination is 
accepted Agency policy and is appropriately applied to the case of 
other treated railway ties in this proceeding. This determination, as 
discussed in the February 2016 rule, is based on the historical usage 
as a product fuel in stoker, bubbling bed, fluidized bed and hybrid 
suspension grate boilers (i.e., boiler designs used to combust used 
railroad ties, see 81 FR 6732).
    The Agency solicits comments on the proposed non-waste categorical 
determination as described previously. The Agency is also specifically 
requesting comment on the following:
     Whether railroad ties with de minimis levels of creosote 
should be allowed to be combusted in biomass only units;
     Should a particular de minimus level should be designated 
and on what should this level be based;
     Whether these OTRTs are combusted in units designed to 
burn coal in lieu of, or in addition to biomass and fuel oil, and 
whether the contaminant comparisons to meet legitimacy criteria should 
include comparisons to coal;
     In light of the data and sampling history described above, 
whether the quality of data is adequate to support the proposed 
determination;
     Additional data that should be considered in making the 
comparability determinations for OTRTs.

F. Copper and Borates Literature Review and Other EPA Program Review 
Summary

    Neither copper nor borate are hazardous air pollutants (HAP), and 
thus are not contaminants under NHSM standards.29 30 To 
determine whether those compounds pose health risk concerns not 
directly covered by the NHSM standards, and how those concerns may be 
addressed under other Agency programs, we conducted a literature review 
on copper and borate and the rules these constituents and their 
compounds.
---------------------------------------------------------------------------

    \29\ CAA Section 112 requires EPA to promulgate regulations to 
control emissions of 187 HAP from sources in source categories 
listed by EPA under section 112(c), while CAA section 129 CISWI 
standards include numeric emission limitations for the nine 
pollutants, plus opacity (as appropriate), that are specified in CAA 
section 129(a)(4). For the purpose of NHSM standards, the definition 
of contaminants is limited to HAP under CAA 112 and CAA 129.
    \30\ We note also under the CAA standards for smaller area 
sources, emission limits are not required for copper, borate (or for 
HAPs). Standards for area sources focus on tune-ups of the boiler 
unit (see 40 CFR 40 CFR part 63, subpart JJJJJJ.
---------------------------------------------------------------------------

    Under the Clean Water Act, EPA's Office of Water developed the Lead 
and Copper Rule which became effective in 1991 (56 FR 26460). This rule 
set a limit of 1.3 ppm copper concentration in 10% of tap action level 
for public water. Exceedances of this limit require additional 
treatment steps in order to reduce waste corrosivity and prevent 
leaching of these metals (including copper) from plumbing and 
distribution systems. EPA's Office of Water also issued a fact sheet 
for copper under the Clean Water Act section 304(a) titled the Aquatic 
Life Ambient Freshwater Quality Criteria.\31\ This fact sheet explains 
that copper is an essential nutrient at low concentrations, but is 
toxic to aquatic organisms at higher concentrations. The fact sheet 
listed the following industries that contribute to manmade discharges 
of copper to surface waters: Mining, leather and leather products, 
fabricated metal products, and electric equipment. No mention was made 
of deposition from combustion sources, such as area source boilers that 
may not have robust particulate matter control devices installed on 
them. By comparison, there are no National Recommended Aquatic Life 
Criteria for boron or borates.
---------------------------------------------------------------------------

    \31\ Aquatic life criteria for toxic chemicals are the highest 
concentration of specific pollutants or parameters in water that are 
not expected to pose a significant risk to the majority of species 
in a given environment or a narrative description of the desired 
conditions of a water body being ``free from'' certain negative 
conditions.
---------------------------------------------------------------------------

    EPA also investigated whether there were any concerns that copper 
and borate can react to form polychlorinated dibenzodioxin and 
dibenzofurans (PCDD/PCDF) during the combustion process. Specific 
studies evaluating copper involvement in dioxins and furans formation 
in municipal or medical waste incinerator flue gas have been 
conducted.\32\ While the exact mechanism and effects of other 
combustion parameters on PCDD and PCDF formation are still unknown, 
increased copper chloride (CuCl) and/or cupric chloride 
(CuCl2) on fly ash particles has been shown to increase 
concentrations of PCDD and PCDF in fly ash. Various researchers 
conclude that CuCl and/or CuCl2 are serving either roles as 
catalysts in dioxin formation or as chlorine sources for subsequent 
PCDD/PCDF formation reactions (i.e., the CuCl and/or CuCl2 
serve as dechlorination/chlorination catalysts).

[[Page 75798]]

Copper emissions from fly ash are reduced with good particulate matter 
controls. A high performance fabric filter may be the best control 
device, although some portion of fine particulate matter may pass 
through. Cyclone separators and electro-static precipitators have not 
been shown to be effective in controlling these emissions, and these 
types of controls may be more prevalent amongst smaller, area source 
boilers. Overall, results from many studies indicate that most of the 
copper ends up in the bottom ash.
---------------------------------------------------------------------------

    \32\ See technical memorandum on copper-related programs and 
emission studies available in the docket to this rulemaking.
---------------------------------------------------------------------------

    Generally, borates have a low toxicity, and should not be a concern 
from a health risk perspective. As indicated previously, neither boron 
nor borates are listed as HAP under CAA section 112, nor are they 
considered to be criteria air pollutants subject to any emissions 
limitations. However, elemental boron has been identified by EPA in the 
coal combustion residuals (CCR) risk analysis \33\ to present some 
potential risks for ecological receptors. As a result of this risk, and 
boron's ability to move through the subsurface,\34\ boron has been 
included as a monitored constituent in CCR monitoring provisions for 
coal ash impoundments.
---------------------------------------------------------------------------

    \33\ Human and Ecological Risk Assessment of Coal Combustion 
Residuals, EPA, December 2014.
    \34\ See 80 FR 21302, April 17, 2015.
---------------------------------------------------------------------------

    Copper has some acute toxicity, but these exposures appear to be 
the result of direct drinking water or cooking-related intake. We 
anticipate the only routes that copper releases to the environment 
could result from burning copper naphthenate treated ties would be 
stormwater runoff from the ties and deposition from boiler emissions. 
The amount of copper remaining in the tie after its useful life, 
however, may be greatly reduced from the original content, and 
facilities manage the shredded tie material in covered areas to prevent 
significant moisture swings, therefore, we do not expect impacts from 
copper-containing runoff. Due to the high vaporization temperature, 
copper will exist in solid phase after it leaves the furnace, and would 
therefore be controlled in the air pollution control device operated to 
control particulate emissions from the boiler.
    EPA solicits comment and seeks any additional information (e.g. 
preservative leaching rates) that would help further inform the 
determinations outlined above regarding management and combustion of 
borate and copper treated railroad ties and impacts to surface water, 
drinking water or air not addressed under the NHSM standards.

IV. Effect of This Proposal on Other Programs

    Beyond expanding the list of NHSMs that categorically qualify as 
non-waste fuels, this rule does not change the effect of the NHSM 
regulations on other programs as described in the March 21, 2011 NHSM 
final rule, as amended on February 7, 2013 (78 FR 9138) and February 8, 
2016 (81 FR 6688). Refer to section VIII of the preamble to the March 
21, 2011 NHSM final rule \35\ for the discussion on the effect of the 
NHSM rule on other programs.
---------------------------------------------------------------------------

    \35\ 76 FR 15456, March 21, 2011 (page 15545).
---------------------------------------------------------------------------

V. State Authority

A. Relationship to State Programs

    This proposal does not change the relationship to state programs as 
described in the March 21, 2011 NHSM final rule. Refer to section IX of 
the preamble to the March 21, 2011 NHSM final rule \36\ for the 
discussion on state authority including, ``Applicability of State Solid 
Waste Definitions and Beneficial Use Determinations'' and 
``Clarifications on the Relationship to State Programs.'' The Agency, 
however, would like to reiterate that this proposed rule (like the 
March 21, 2011 and the February 7, 2013 final rules) is not intended to 
interfere with a state's program authority over the general management 
of solid waste.
---------------------------------------------------------------------------

    \36\ 76 FR 15456, March 21, 2011 (page 15546).
---------------------------------------------------------------------------

B. State Adoption of the Rulemaking

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

VI. Cost and Benefits

    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. This rulemaking, as 
proposed, establishes a categorical non-waste listing for selected 
NHSMs under RCRA. This categorical non-waste determination allows these 
materials to be combusted as a product fuel in units, subject to the 
CAA section 112 emission standards, without being subject to a detailed 
case-by-case analysis of the material(s) by individual combustion 
facilities, provided they meet the conditions of the categorical 
listing. The proposal establishes no direct standards or requirements 
relative to how these materials are managed or combusted. As a result, 
this action alone does not directly invoke any costs \37\ or benefits. 
Rather, this RCRA proposal is being developed to simplify the rules for 
identifying which NHSMs are not solid wastes and to provide additional 
clarity and direction for owners or operators of combustion facilities. 
In this regard, this proposal provides a procedural benefit to the 
regulated community, as well as the states through the establishment of 
regulatory clarity and enhanced materials management certainty.
---------------------------------------------------------------------------

    \37\ Excluding minor administrative burden/cost (e.g., rule 
familiarization).
---------------------------------------------------------------------------

    Because this RCRA action is definitional only, any costs or 
benefits indirectly associated with this action would not occur without 
the corresponding implementation of the relevant CAA rules. However, in 
an effort to ensure rulemaking transparency, the EPA prepared an 
assessment in support of this action that examines the scope and 
direction of these indirect impacts, for both costs and benefits.\38\ 
This document is available in the docket for review and comment. 
Finally, we recognize that this action would indirectly affect various 
materials management programs and policies, and we are sensitive to 
these concerns. The Agency encourages comment on these effects.
---------------------------------------------------------------------------

    \38\ U.S. EPA, Office of Resource Conservation and Recovery, 
``Assessment of the Potential Costs, Benefits, and Other Impacts for 
the Proposed Rule: Categorical Non-Waste Determination for Selected 
Non Hazardous Secondary Materials (NHSMs): Creosote-Borate Treated 
Railroad Ties, Copper Naphthenate Treated Railroad Ties, and Copper 
Naphthenate-Borate Treated Railroad Ties'' EPA Docket Number: EPA-
HQ-OLEM-2016-0248.
---------------------------------------------------------------------------

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

[[Page 75799]]

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

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This action is not a significant regulatory action. The Office of 
Management and Budget (OMB) waived review. The EPA prepared an economic 
analysis of the potential costs and benefits associated with this 
action. This analysis, ``Assessment of the Potential Costs, Benefits, 
and Other Impacts for the Proposed Rule--Categorical Non-Waste 
Determination for Selected Non-Hazardous Secondary Materials (NHSMs): 
Creosote-Borate Treated Railroad Ties, Copper Naphthenate Treated 
Railroad Ties, and Copper Naphthenate-Borate Treated Railroad Ties'', 
is available in the docket. Interested persons are encouraged to read 
and comment on this document.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA as this action only proposes to add three new categorical 
non-waste fuels to the NHSM regulations. OMB has previously approved 
the information collection activities contained in the existing 
regulations and has assigned OMB control number 2050-0205.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. The proposed addition of three NHSMs to 
the list of categorical non-waste fuels is expected to indirectly 
reduce materials management costs. In addition, this action will reduce 
regulatory uncertainty associated with these materials and help 
increase management efficiency. We have therefore concluded that this 
action will relieve regulatory burden for all directly regulated small 
entities. We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act (UMRA)

    This action contains no Federal mandates as described in UMRA, 2 
U.S.C. 1531-1538, and does not significantly or uniquely affect small 
governments. UMRA generally excludes from the definition of ``Federal 
intergovernmental mandate'' duties that arise from participation in a 
voluntary Federal program. Affected entities are not required to manage 
the proposed additional NHSMs as non-waste fuels. As a result, this 
action may be considered voluntary under UMRA. Therefore, this action 
is not subject to the requirements of section 202 or 205 of the UMRA
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. In addition, this 
proposal will not impose direct compliance costs on small governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

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

    This action does not have tribal implications as specified in 
Executive Order 13175. It will neither impose substantial direct 
compliance costs on tribal governments, nor preempt Tribal law. 
Potential aspects associated with the categorical non-waste fuel 
determinations under this proposed rule may invoke minor indirect 
tribal implications to the extent that entities generating or 
consolidating these NHSMs on tribal lands could be affected. However, 
any impacts are expected to be negligible. Thus, Executive Order 13175 
does not apply to this action.

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

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in the Executive Order 12866, 
and because the EPA does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. Based on the following discussion, the Agency found that 
populations of children near potentially affected boilers are either 
not significantly greater than national averages, or in the case of 
landfills, may potentially result in reduced discharges near such 
populations.
    The proposed rule, in conjunction with the corresponding CAA rules, 
may indirectly stimulate the increased fuel use of one of more the 
three NHSMs by providing enhanced regulatory clarity and certainty. 
This increased fuel use may result in the diversion of a certain 
quantity of these NHSMs away from current baseline management 
practices. Any corresponding disproportionate impacts among children 
would depend upon whether children make up a disproportionate share of 
the population living near the affected units. Therefore, to assess the 
potential an indirect disproportionate effect on children, we conducted 
a demographic analysis for this population group surrounding CAA 
section 112 major source boilers, municipal solid waste landfills, and 
construction and demolition (C&D) landfills for the Major and Area 
Source Boilers rules and the CISWI rule.\39\ We assessed the share of 
the population under the age of 18 living within a three-mile 
(approximately five kilometers) radius of these facilities. Three miles 
has been used often in other demographic analyses focused on areas 
around industrial sources.\40\
---------------------------------------------------------------------------

    \39\ The extremely large number of area source boilers and the 
absence of site-specific coordinates prevented us from assessing the 
demographics of populations located near these sources. In addition, 
we did not assess child population percentages surrounding cement 
kilns that may use some out-of-service railroad crossties for their 
thermal value.
    \40\ The following publications which have provided demographic 
information using a 3-mile or 5-kilometer circle around a facility:
    * U.S. GAO (Government Accountability Office). Demographics of 
People Living Near Waste Facilities. Washington DC: Government 
Printing Office 1995.
    * Mohai P, Saha R. ``Reassessing Racial and Socio-economic 
Disparities in Environmental Justice Research''. Demography. 
2006;43(2): 383-399.
    * Mennis, Jeremy ``Using Geographic Information Systems to 
Create and Analyze Statistical Surfaces of Population and Risk for 
Environmental Justice Analysis'' Social Science Quarterly, 2002, 
83(1):281-297.
    * Bullard RD, Mohai P, Wright B, Saha R et al. Toxic Wastes and 
Race at Twenty, 1987-2007, March 2007. 5 CICWI Rule and Major Source 
Boilers Rule.

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[[Page 75800]]

    For major source boilers, our findings indicate that the percentage 
of the population in these areas under age 18 years is generally the 
same as the national average.\41\ In addition, while the fuel source 
and corresponding emission mix for some of these boilers may change as 
an indirect response to this rule, emissions from these sources would 
remain subject to the protective CAA section 112 standards. For 
municipal solid waste and C&D landfills, we do not have demographic 
results specific to children. However, using the population below the 
poverty level as a rough surrogate for children, we found that within 
three miles of facilities that may experience diversions of one or more 
of these NHSMs, low-income populations, as a percent of the total 
population, are disproportionately high relative to the national 
average. Thus, to the extent that these NHSMs are diverted away from 
municipal solid waste or C&D landfills, any landfill-related emissions, 
discharges, or other negative activity potentially affecting low-income 
(children) populations living near these units are likely to be 
reduced. Finally, transportation emissions associated with the 
diversion of some of this material away from landfills to boilers are 
likely to be generally unchanged, while these emissions are likely to 
be reduced for on-site generators of paper recycling residuals that 
would reduce off-site shipments.
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    \41\ U.S. EPA, Office of Resource Conservation and Recovery. 
Summary of Environmental Justice Impacts for the Non-Hazardous 
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial 
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source 
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
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H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that it is not feasible to determine whether this 
action has disproportionately high and adverse effects on minority 
populations, low-income populations, and/or indigenous peoples as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). 
However, the overall level of emissions, or the emissions mix from 
affected boilers are not expected to change significantly because the 
three NHSMs proposed to be categorically listed as non-waste fuels are 
generally comparable to the types of fuels that these combustors would 
otherwise burn. Furthermore, these units remain subject to the 
protective standards established under CAA section 112.
    Our environmental justice demographics assessment conducted for the 
prior rulemaking \42\ remains relevant to this action. This assessment 
reviewed the distributions of minority and low-income groups living 
near potentially affected sources using U.S. Census blocks. A three-
mile radius (approximately five kilometers) was examined in order to 
determine the demographic composition (e.g., race, income, etc.) of 
these blocks for comparison to the corresponding national compositions. 
Findings from this analysis indicated that populations living within 
three miles of major source boilers represent areas with minority and 
low-income populations that are higher than the national averages. In 
these areas, the minority share \43\ of the population was 33 percent, 
compared to the national average of 25 percent. For these same areas, 
the percent of the population below the poverty line (16 percent) was 
higher than the national average (13 percent).
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    \42\ U.S. EPA, Office of Resource Conservation and Recovery. 
Summary of Environmental Justice Impacts for the Non-Hazardous 
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial 
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source 
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
    \43\ This figure is for overall population minus white 
population and does not include the Census group defined as ``White 
Hispanic.''
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    In addition to the demographics assessment described previously, we 
also considered the potential for non-combustion environmental justice 
concerns related to the potential incremental increase in NHSMs 
diversions from current baseline management practices. These may 
include the following:
     Reduced upstream emissions resulting from the reduced 
production of virgin fuel: Any reduced upstream emissions that may 
indirectly occur in response to reduced virgin fuel mining or 
extraction may result in a human health and/or environmental benefit to 
minority and low-income populations living near these projects.
     Alternative materials transport patterns: Transportation 
emissions associated with NHSMs diverted from landfills to boilers are 
likely to be similar, except for on-site paper recycling residuals, 
where the potential for less off-site transport to landfills may result 
in reduced truck traffic and emissions where such transport patterns 
may pass through minority or low-income communities.
     Change in emissions from baseline management units: The 
diversion of some of these NHSMs away from disposal in landfills may 
result in a marginal decrease in activity at these facilities. This may 
include non-adverse impacts, such as marginally reduced emissions, 
odors, groundwater and surface water impacts, noise pollution, and 
reduced maintenance cost to local infrastructure. Because municipal 
solid waste and C&D landfills were found to be located in areas where 
minority and low-income populations are disproportionately high 
relative to the national average, any reduction in activity and 
emissions around these facilities is likely to benefit the citizens 
living near these facilities.
    Finally, this rule, in conjunction with the corresponding CAA 
rules, may help accelerate the abatement of any existing stockpiles of 
the targeted NHSMs. To the extent that these stockpiles may represent 
negative human health or environmental implications, minority and/or 
low-income populations that live near such stockpiles may experience 
marginal health or environmental improvements. Aesthetics may also be 
improved in such areas.
    As previously discussed, this RCRA proposed action alone does not 
directly require any change in the management of these materials. Thus, 
any potential materials management changes stimulated by this action, 
and corresponding impacts to minority and low-income communities, are 
considered to be indirect impacts, and would only occur in conjunction 
with the corresponding CAA rules.

List of Subjects in 40 CFR part 241

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


[[Page 75801]]


    Dated: October 19, 2016.
Gina McCarthy,
Administrator.
    For the reasons stated in the preamble, EPA proposes to amend 
40,CFR chapter I as set forth below:

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

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

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

0
2. Section 241.2 is amended by adding in alphabetical order the 
definitions ``Copper naphthenate treated railroad ties'', ``Copper 
naphthenate-borate treated railroad ties'' and ``Creosote-borate 
treated railroad ties'' to read as follows:


Sec.  241.2  Definitions.

* * * * *
    Copper naphthenate treated railroad ties means railroad ties 
treated with copper naphthenate made from naphthenic acid and copper 
salt.
    Copper naphthenate-borate treated railroad ties means railroad ties 
treated with copper naphthenate and borate made from disodium 
octaborate tetrahydrate.
    Creosote-borate treated railroad ties means railroad ties treated 
with a wood preservative containing creosols and phenols and made from 
coal tar oil and borate made from disodium octaborate tetrahydrate.
* * * * *
0
3. Section 241.4 is amended by adding paragraphs (a)(8) through (10) to 
read as follows:


Sec.  241.4  Non-waste Determinations for Specific Non-Hazardous 
Secondary Materials When Used as a Fuel.

* * * * *
    (a) * * *
    (8) Creosote-borate treated railroad ties, and mixtures of 
creosote, borate and copper naphthenate treated railroad ties that are 
processed (which must include at a minimum, metal removal and shredding 
or grinding) and then combusted in the following types of units:
    (i) 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
    (ii) Units at major source pulp and paper mills or power producers 
subject to 40 CFR part 63, subpart DDDDD that combust creosote-borate 
treated railroad ties and mixed creosote, borate and copper naphthenate 
treated railroad ties, 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. 
The creosote-borate and mixed creosote, borate and copper naphthenate 
treated railroad ties may continue to be combusted as product fuel 
under this subparagraph only if the following conditions are met, which 
are intended to ensure that such railroad ties are not being discarded:
    (A) Creosote-borate and mixed creosote, borate and copper 
naphthenate treated railroad ties must be burned in existing (i.e., 
commenced construction prior to April 14, 2014) stoker, bubbling bed, 
fluidized bed, or hybrid suspension grate boilers; and
    (B) Creosote-borate and mixed creosote, borate and copper 
naphthenate treated railroad ties can comprise no more than 40 percent 
of the fuel that is used on an annual heat input basis.
    (9) Copper naphthenate treated railroad ties that are processed 
(which must include at a minimum, metal removal and shredding or 
grinding) and then combusted in units designed to burn biomass or units 
designed to burn both biomass and fuel oil.
    (10) Copper naphthenate-borate treated railroad ties that are 
processed (which must include at a minimum, metal removal and shredding 
or grinding) and then combusted in units designed to burn biomass or 
units designed to burn both biomass and fuel oil.
* * * * *
[FR Doc. 2016-26381 Filed 10-31-16; 8:45 am]
 BILLING CODE 6560-50-P