[Federal Register Volume 83, Number 26 (Wednesday, February 7, 2018)]
[Rules and Regulations]
[Pages 5317-5340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02337]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

[EPA-HQ-OLEM-2016-0248; FRL-9969-80-OLEM]
RIN 2050-AG83


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is issuing 
amendments to the Non-Hazardous Secondary Materials regulations, which 
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 February 2013, the EPA listed 
particular non-hazardous secondary materials as ``categorical non-waste 
fuels'' provided certain conditions are met. This final rule adds the 
following other treated railroad ties (OTRT) to the categorical non-
waste fuel list: Processed creosote-borate, copper naphthenate and 
copper naphthenate-borate treated railroad ties, under certain 
conditions depending on the chemical treatment.

DATES: This rule is effective February 7, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OLEM-2016-0248. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically at https://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, 
excluding legal holidays. The telephone number for the Public Reading 
Room is (202) 566-1744, and the telephone number for the RCRA Docket is 
(202) 566-0270.

FOR FURTHER INFORMATION CONTACT: George Faison, Office of Resource 
Conservation and Recovery, Materials Recovery and Waste Management 
Division, MC 5303P, Environmental Protection Agency, 1200 Pennsylvania 
Ave. NW, Washington, DC 20460; telephone number: (703) 305-7652; email: 
faison.george@epa.gov.

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 Final Rule
    B. What is the statutory authority for this final rule?
    C. Does this action apply to me?
    D. What is the purpose of this final rule?
    E. Effective Date
II. Background
    A. History of the NHSM Rulemakings
    B. Background to This Final Rule
    C. How will EPA make categorical non-waste determinations?
III. Comments on the Proposed Rule and Rationale for Final Decisions
    A. Detailed Description of OTRTs
    B. OTRTs Under Current NHSM Rules
    C. Scope of the Final Categorical Non-Waste Listing for OTRTs
    D. Rationale for Final Rule
    E. Copper and Borates Literature Review and Other EPA Program 
Summary
    F. Summary of Comments Requested
    G. Responses to Comments
IV. Effect of This Final Rule on Other Programs
V. State Authority
    A. Relationship to State Programs
    B. State Adoption of the Rulemaking
VI. Costs 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. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act (CRA)

I. General Information

A. List of abbreviations and acronyms used in this final rule

AWPA American Wood Protection Association
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 Creosote-treated railroad ties
EPA U.S. Environmental Protection Agency
FR Federal Register
HAP Hazardous air pollutant
MACT Maximum achievable control technology
MDL Method detection limit
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
OTRT Other Treated Railroad Ties
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 final rule?

    The EPA is amending 40 CFR 241.4(a) to list additional non-
hazardous secondary materials (NHSMs) as

[[Page 5318]]

categorical non-waste fuels 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 action apply to me?

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

Generators and Potential Users a of the New Materials To Be Added to the
                           List of Categorical
                             Non-Waste Fuels
------------------------------------------------------------------------
        Primary Industry Category or Sub Category            NAICS \b\
------------------------------------------------------------------------
Utilities...............................................             221
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
------------------------------------------------------------------------
\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 final 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 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, or if the combustion 
unit is a cement kiln, the CAA 112 standards for Portland cement kilns. 
Under CAA section 129, the term ``solid waste incineration unit'' is 
defined, in pertinent part, to mean ``a distinct operating unit of any 
facility which combusts any solid waste material from commercial or 
industrial establishments.'' 42 U.S.C. 7429(g)(1). 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 amends 
the part 241 regulations by adding three NHSMs, summarized below, to 
the list of categorical non-waste fuels codified in Sec.  241.4(a):
---------------------------------------------------------------------------

    \1\ See 40 CFR 241.2 for the definition of non-hazardous 
secondary material.
---------------------------------------------------------------------------

    (1) Creosote-borate treated railroad ties, and mixtures of 
creosote, borate and/or copper naphthenate treated railroad ties that 
are processed and then combusted in:
    (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, designed to burn biomass and 
fuel oil as part of normal operations and not solely as part of start-
up or shut-down operations, but are modified in order to use natural 
gas instead of fuel oil. The creosote-borate and mixed creosote, borate 
and copper naphthenate treated railroad ties may continue to be 
combusted as product fuel only if certain conditions are met, which are 
intended to ensure that such railroad ties are not being discarded.
    (iii) Units meeting requirements in (i) or (ii) that are also 
designed to burn coal.

[[Page 5319]]

    (2) Copper naphthenate treated railroad ties that are processed and 
then combusted in units designed to burn biomass, biomass and fuel oil, 
or biomass and coal.
    (3) Copper naphthenate-borate treated railroad ties that are 
processed and then combusted in units designed to burn biomass, biomass 
and fuel oil, or biomass and coal.

E. Effective Date

    The Administrative Procedure Act requires publication of a 
substantive rule 30 days or more before the effective date unless one 
of the following conditions in 5 U.S.C. 553(d) are met:
    (1)A substantive rule which grants or recognizes an exemption or 
relieves a restriction;
    (2) interpretative rules and statements of policy; or
    (3) as otherwise provided by the agency for good cause found and 
published with the rule.

This final rule establishing an OTRT non-waste categorical 
determination satisfies 553(d)(1) in that it relieves a restriction by 
allowing OTRTs to be combusted as non-waste rather than as waste when 
certain conditions are met as described below in Section III. OTRTs 
represent a relatively small percentage of the railroad ties in use 
with the majority being creosote treated railroad ties (CTRTs). When 
the railroad ties are taken out of service and used as fuel, there is 
no way to distinguish between the OTRTs and the CTRTs. In order to 
ensure that CTRTs mixed with OTRTs are not considered a waste, EPA is 
making this final rule effective immediately and providing regulatory 
certainty.

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 (76 FR 15456) 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 and ingredients 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 \2\ at concentrations comparable to (or lower than) those 
in traditional fuels which the combustion unit is designed to burn. For 
NHSMs used as an ingredient, in addition to the other listed criteria, 
the ingredient must be used to make a valuable product.
---------------------------------------------------------------------------

    \2\ For additional information on grouping of contaminants see 
78 FR 9146.
---------------------------------------------------------------------------

    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 that has been sufficiently processed to 
produce a fuel or ingredient that meets the legitimacy criteria (40 CFR 
241.3(b)(4)); or
     Through a case-by-case petition process, it has been 
determined that the NHSM handled outside the control of the generator 
has not been discarded and is indistinguishable in all relevant aspects 
from a fuel product, and meets the legitimacy criteria (40 CFR 
241.3(c)).
    In October 2011, the Agency announced it would be initiating a new 
rulemaking proceeding to revise certain aspects of the NHSM rule.\3\ On 
February 7, 2013, the EPA published a final rule, which addressed 
specific targeted amendments and clarifications to the 40 CFR part 241 
regulations (78 FR 9112). These revisions and clarifications were 
limited to certain issues on which the Agency had received new 
information, as well as targeted revisions that the Agency believed 
were appropriate in order to allow implementation of the rule as the 
EPA originally intended. The amendments modified 40 CFR 241.2 and 
241.3, added 40 CFR 241.4, and included the following: \4\
---------------------------------------------------------------------------

    \3\ See October 14, 2011, Letter from Administrator Lisa P. 
Jackson to Senator Olympia Snowe. A copy of this letter 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.
---------------------------------------------------------------------------

     Revised Definitions: The EPA revised three definitions 
discussed in the proposed rule: (1) ``Clean cellulosic biomass,'' (2) 
``contaminants,'' and (3) ``established tire collection program.'' 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 
categorically listed them in 40 CFR 241.4(a).\5\
---------------------------------------------------------------------------

    \5\ In the March 21, 2011 NHSM rule (76 FR 15456), EPA 
identified two NHSMs as not being solid wastes, although persons 
would still need to make individual determinations that these NHSMs 
meet the legitimacy criteria: (1) Scrap tires used in a combustion 
unit that are removed from vehicles and managed under the oversight 
of established tire collection programs and (2) resinated wood used 
in a combustion unit. However, in the February 2013 NHSM rule, the 
Agency amended the regulations and listed these NHSMs as categorical 
non-waste fuels.

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

[[Page 5320]]

--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 final rule 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 Final Rule

    The Agency received a petition from the Treated Wood Council (TWC) 
in April 2013 \6\ requesting that various 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 included: waterborne borate based 
preservatives; waterborne organic based preservatives; waterborne 
copper based wood preservatives (ammoniacal/alkaline copper quat, 
copper azole, copper HDO, alkaline copper betaine, or copper 
naphthenate); creosote; oil borne copper naphthenate; 
pentachlorophenol; or dual-treated with any of the above.
---------------------------------------------------------------------------

    \6\ Included in the docket for the February 2016 final rule--
EPA-HQ-RCRA-2013-0110-0056.
---------------------------------------------------------------------------

    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,\7\ 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 because the ability to 
reuse these new types of treated ties as fuel is an important 
consideration in overall rail tie purchasing decisions. Other industry 
information claimed that these treatments have proven to increase decay 
resistance for ties in severe decay environments and for species that 
are difficult to treat with creosote alone.\8\
---------------------------------------------------------------------------

    \7\ 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.
    \8\ Railway Tie Association ``Frequently Asked Questions'' 
available on http://www.rta.org/faqs.
---------------------------------------------------------------------------

    The Agency reviewed TWC's information on the three types of 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.\9\ Based on that information, EPA 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. That proposed rule was issued 
November 1, 2016 (81 FR 75781).
---------------------------------------------------------------------------

    \9\ These data submissions and the letter from TWC on August 21, 
2015 are included in the docket for this rule.
---------------------------------------------------------------------------

C. How will EPA make categorical non-waste determinations?

    The February 7, 2013 revisions to the NHSM rule discuss the process 
and

[[Page 5321]]

decision criteria whereby the Agency would make additional categorical 
non-waste determinations (78 FR 9158). These determinations follow the 
weight-of-evidence criteria set out in 40 CFR 241.4(b)(5), which the 
Agency established 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 qualify as solid 
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.
    Based on the information in the rulemaking record and comments 
received, the Agency is finalizing amendments to 40 CFR 241.4(a) by 
listing three other types of treated railroad ties as categorical non-
waste fuels, in addition to CTRTs added in February 2016. Specific 
determinations regarding these other treated railroad ties (OTRTs, 
i.e., creosote-borate, copper naphthenate, copper naphthenate-borate; 
and, mixtures of creosote, borate and/or copper naphthenate treated 
railroad ties) 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 a determination as to whether certain OTRTs should be listed as 
a categorical non-waste fuel. However, the principles used to determine 
categorical listings are based on the NHSM rules promulgated over the 
past few years. While EPA is not formally including in the record for 
this rule materials supporting the previous NHSM rulemakings, the 
Agency is nevertheless issuing this rule consistent with the NHSM 
regulations and the supporting records for those rules. This rulemaking 
in no way reopens any issues resolved in previous NHSM rulemakings. It 
simply responds to a petition in accordance with the standards and 
procedures outlined in the existing NHSM regulations.

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

    The following sections provide the Agency rationale for its 
determination that OTRTs are appropriate for listing in Sec.  241.4(a) 
as categorical non-wastes when burned as a fuel in prescribed 
combustion units. It also addresses major comments the Agency received 
on the November 1, 2016 NHSM OTRT proposed rule (81 FR 75781). That 
proposal explained the status of OTRT under current rules, discussed 
information received during previous rulemakings, as well as the scope 
of the proposed categorical non-waste fuel listings. The proposed 
rationale for the listings is found at 81 FR 75788-96 and is 
incorporated into this final rule, along with all sources referenced in 
that discussion and cited therein. The final decision in this rule is 
based on the information in the proposal, comments received on the 
proposal and supporting materials in the rulemaking record. Any changes 
from the proposed rule made to the final rule are identified below.

A. Detailed Description of OTRTs

1. Processing
    As described in the proposed rulemaking (81 FR 75781, November 1, 
2016 (page 75785)), industry representatives stated that the removal of 
OTRTs from service and processing of those ties into a product fuel is 
similar to processing of CTRTs described in the February 2016 rule.\10\ 
OTRTs are typically comprised of North American hardwoods that have 
been treated with a wood preservative. The removal from service, 
processing and use as a fuel happens 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 recovery 
companies in North America with industry-wide revenues of $65-75 
million.
---------------------------------------------------------------------------

    \10\ 81 FR 6688 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. (81 FR 75788; November 1, 2016).
---------------------------------------------------------------------------

    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 \11\ 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.
---------------------------------------------------------------------------

    \11\ M.A. Energy Resources LLC, Petition submitted to 
Administrator, EPA, February 2013.
---------------------------------------------------------------------------

    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, 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 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 size reduction 
process exposes a greater surface area of the particle prior to 
combustion, releasing any moisture more rapidly, and thereby enhancing 
its heating value. This step may occur in several phases, including 
primary and secondary grinding, or in a single phase. Additional metal 
removal may also occur after shredding.
    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

[[Page 5322]]

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 
processed OTRTs are then stockpiled prior to combustion in a manner 
consistent with biomass fuels, 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 British thermal unit (Btu) fuel to 
supplement low (and sometimes wet) Btu biomass to ensure proper 
combustion, often in lieu of coal or other fossil fuels.\12\ The 
combined fuel may be further hammered and screened prior to combustion.
---------------------------------------------------------------------------

    \12\ 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 final rule 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). The lighter solvent is the most commonly used for railroad 
ties due to its ability to penetrate the wood. 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 (the amount of 
retention of the preservative in the tie after treatment application) 
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 kilogram 
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.\13\
---------------------------------------------------------------------------

    \13\ U.S. Forest Service Preservative Treated Wood and 
Alternative Products in the Forest Service: https://www.fs.fed.us/t-d/pubs/htmlpubs/htm06772809/page02.htm
---------------------------------------------------------------------------

    When dissolved in No. 2 fuel oil (Type C under AWPA standards), 
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) \14\ 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.
---------------------------------------------------------------------------

    \14\ List of Restricted Use Pesticides found at: https://www.epa.gov/pesticide-worker-safety/restricted-use-products-rup-report.
---------------------------------------------------------------------------

ii. Borates
    Borates is the name for a large number 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. Copper naphthenate treated ties are most 
effective when dual-treated with borate to prevent decay.\15\
---------------------------------------------------------------------------

    \15\ Railroad Tie Association. Frequently Asked Questions http://www.rta.org/faqs-main.
---------------------------------------------------------------------------

    Performance characteristics of borate treatment include protection 
of the wood 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.\16\
---------------------------------------------------------------------------

    \16\ U.S. Forest Service Preservative Treated Wood and 
Alternative Products in the Forest Service https://www.fs.fed.us/t-d/pubs/htmlpubs/htm06772809/page02.htm.
---------------------------------------------------------------------------

    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 wood species 
that are relatively difficult to treat, such as spruce. Several 
pressure treatment facilities in the United States use borate 
solutions. For refractory wood 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

[[Page 5323]]

remain the material of choice by railroads due to their long life, 
durability, cost effectiveness, and sustainability. As creosote is a 
by-product of coal tar distillation, and coal tar is a by-product of 
making coke from coal, creosote is considered a derivative of coal. The 
creosote component of CTRTs is also governed by the standards 
established by 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 hazardous air pollutant (HAP), as well as other HAPs 
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 this assessment in 2011, the Agency did not consider 
fuel oil \17\ 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 discard and 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).
---------------------------------------------------------------------------

    \17\ For the purposes of this 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 showed 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 final rule that such treated-wood meets the legitimacy 
criterion on the level of contaminants and comparability to traditional 
fuels. The rule further stated that borate-treated wood could be 
classified as a non-waste fuel, provided the other two legitimacy 
criteria are met and 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 EPA was 
aware of 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 with both 
treatments, 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.
    As indicated in the rule, EPA 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). Persons could make self-determinations 
regarding other uses of the material as fuel including use outside the 
control of the generator.
    With regard to wood treated with copper naphthenate, the March 2011 
rule indicated that no additional contaminant data was provided that 
would reverse the position in the June 2010 proposed rule, which 
considered wood treated with copper naphthenate a solid waste because 
of concerns of elevated levels of contaminants (76 FR 15484, March 21, 
2011). The March 2011 rule acknowledged, as in the June 2010 proposed 
rule (75 FR 31862, June 4, 2010), that the Agency did not have 
sufficient information on the contaminant levels in wood treated with 
copper naphthenate. The rule further stated that 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 and meet 
legitimacy criteria, 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 (78 FR 9173), 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 non-waste listing and clarification letter 
for CTRTs combusted in any unit.\18\ 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.
---------------------------------------------------------------------------

    \18\ American Forest & Paper Association, American Wood 
Council--Letter to EPA Administrator, December 6, 2012. Included in 
docket for this final rule.
---------------------------------------------------------------------------

    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, 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 non-waste 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, and
     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.\19\ (78 FR 9173, February 7, 2013.)

    \19\ The Agency requested these analyses based on the limited 
information previously available concerning the chemical makeup of 
CTRTs. That limited information included one 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 dioxin analyses of post-combustion emissions.
---------------------------------------------------------------------------

See 81 FR 6723-24, February 8, 2016, for the detailed responses to the 
above requested information.

[[Page 5324]]

3. February 2016 NHSM Final Rule
    As discussed in section II.B of this preamble, the February 2016 
final rule stated that EPA had reviewed the information submitted from 
stakeholders regarding CTRTs and determined that the information 
supported a categorical determination for those materials under certain 
conditions which were promulgated in that rule (see 40 CFR 
241.4(a)(7)). The final rule preamble language also referenced an 
August 21, 2015 letter to Barnes Johnson where TWC requested that the 
Agency move forward on a subset of materials that were identified in 
the April 2013 petition (i.e. creosote borate, copper naphthenate, and 
copper naphthenate-borate) (81 FR 6738, February 8, 2016). EPA stated 
that based on the information received, the Agency believed these three 
types of 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) for the three materials in the near future.

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

    As discussed in section II.B of this preamble, the November 1, 2016 
proposed OTRT rule was based on TWC submitted letters and supporting 
documents requesting a categorical non-waste fuel listing for OTRTs. 
The information supporting the proposal and the comments received 
indicated that these materials have been processed, and meet legitimacy 
criteria including management as a valuable commodity, meaningful 
heating value and contaminants at levels comparable to or less than 
those in the traditional fuels that these combustion units are designed 
to burn as fuel. In this final rule, the Agency is listing, as 
categorical non-wastes, processed OTRTs when used as fuels. The 
rationale for this listing is discussed in detail in the Section D.
    For units combusting copper naphthenate-borate and/or copper 
naphthenate railroad ties, such materials could be combusted as non-
waste fuels in units designed to burn biomass, biomass and fuel oil, or 
biomass and coal under CAA 112 standards. For units combusting railroad 
ties containing creosote, including creosote-borate or any mixtures of 
ties containing creosote, borate and copper naphthenate, such materials 
must be burned in combustion units that are designed to burn, both, 
biomass and fuel oil in order for the material to be considered a non-
waste fuel. The Agency would consider combustion 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. Units 
combusting ties mixed with creosote that are designed to burn biomass 
and fuel oil may also be designed to burn coal under this categorical 
non-waste fuel listing.
    Consistent with, and for the same reasons as the approach for CTRTs 
outlined in the February 2016 final rule (81 FR 6725), units combusting 
railroad ties treated with creosote-borate (or other combination 
mixtures of 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.\20\
---------------------------------------------------------------------------

    \20\ As noted in the February 2016 rule, the standards are based 
on information received after the February 7, 2013 rule specifically 
with regard to existing stoker, bubbling bed, fluidized bed or 
hybrid suspension grate boilers in the pulp and paper and power 
production industries that were switching from fuel oil to natural 
gas due to lower compliance costs and the ability to use cleaner 
fuels during operation. The 40% fuel use condition is based on 
statements from industry indicating that CTRTs generally compromise 
40% of the total fuel load. These conditions regarding types of 
existing units and fuel use were designed to ensure, in this 
circumstance, that the ties were not discarded. (81 FR 6724).
---------------------------------------------------------------------------

    These conditions will also apply if an existing unit designed to 
burn fuel oil and biomass (at a power production facility or pulp and 
paper mill) is modified to burn natural gas at some point in the 
future.
    Units combusting ties mixed with creosote that are designed to burn 
biomass and fuel oil, but have switched from fuel oil to natural gas, 
may also be designed to burn coal under this categorical non-waste fuel 
listing.
    The approach for railroad ties treated with creosote-borate (or 
other mixtures of treated railroad ties containing creosote, borate and 
copper naphthenate) addresses only the circumstance where contaminants 
in these railroad ties are comparable to or less than the traditional 
fuels the combustion 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. As 
contaminants in railroad ties treated with creosote are comparable to 
the contaminant in biomass and fuel oil, units that had switched to 
natural gas from fuel oil would clearly be in compliance with the 
legitimacy criteria if they did not switch to the cleaner natural gas 
fuel. While contaminant levels may in fact be higher when compared to 
natural gas, boilers at pulp and paper mills and power production 
facilities have demonstrated the ability to combust these materials 
should not be penalized for switching to a cleaner fuel. Removal of oil 
delivery mechanisms from units designed to burn fuel oil does not 
support a conclusive decision that such ties do not meet legitimacy 
criteria and are now being discarded.
    Information indicating that these railroad ties alone or in the 
combination mixtures are an important part of the fuel mix because of 
the consistently lower moisture content and higher Btu value, benefit 
the combustion units with significant swings in steam demand, therefore 
suggesting that discard is not occurring. The Agency believes it 
appropriate to balance other relevant factors in this categorical non-
waste determination and to decide that the switching to the cleaner 
natural gas would not render these materials a waste fuel.
    This determination is consistent with the February 2016 rule, and 
is based on the historical usage of CTRT 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).

D. Rationale for Final Rule

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

[[Page 5325]]

material is legitimately used as a product fuel in a combustion unit. 
If the material has been discarded, EPA evaluates whether the NHSM has 
been sufficiently processed into a material that is legitimately used 
as a product fuel.
    Information 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 removal/
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 reiterates its position from the February 8, 2016 (81 FR 6725) 
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) indicates that the 
material has been discarded in the first instance and is a solid waste 
(see also the general discussion of discard at 76 FR 15463, March 11, 
2011 rule).\21\ 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, to be considered a non-
waste fuel they must be processed, i.e. transforming the OTRTs into a 
product fuel that meets the legitimacy criteria.\22\ 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 a 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:
---------------------------------------------------------------------------

    \22\ 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, March 21, 
2011). Persons can also make self-determinations for their NHSM.
---------------------------------------------------------------------------

     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) due to increased surface area. The final size depends on the 
particular needs of the end-use combustor. The grinding may occur in 
one or more phases; and
     Once the contaminant metals are removed and the OTRTs are 
ground, there may be additional operations to bring the material to a 
specified size.
3. Legitimacy Criteria
    EPA can list a discarded NHSM as a categorical 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.\23\
---------------------------------------------------------------------------

    \23\ 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)(5)(ii).
---------------------------------------------------------------------------

i. Managed as a Valuable Commodity
    Data submitted \24\ indicates that OTRT processing and subsequent 
management is analogous to that of CTRTs outlined in the February 8, 
2016 final rule (81 FR 6725). The processing of OTRTs is correlated to 
the particular needs of the end-use combustor. 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.
---------------------------------------------------------------------------

    \24\ See section III.D.4. of this preamble for a description of 
EPA's review of all data submitted regarding meeting legitimacy 
criteria.
---------------------------------------------------------------------------

    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. 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 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

[[Page 5326]]

naphthenate-borate.\25\ \26\ 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.\27\ Thus, OTRTs meet the criterion for meaningful heating value 
and used as a fuel to recover energy.
---------------------------------------------------------------------------

    \25\ Letter from Jeff Miller to Barnes Johnson, September 11, 
2015; see docket for this rule.
    \26\ 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.
    \27\ See 76 FR 15541, March 21, 2011.
---------------------------------------------------------------------------

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 
biomass/untreated wood, and fuel oil. In response to comments on the 
proposal, EPA has also taken the September 2015 data and compared them 
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.
    Use of these types of ties are relatively new compared to creosote, 
so few of these OTRT have transitioned to fuel use at this time, but we 
expect more in the future. To simulate that transition over time, three 
samples of unequally-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 the processed tie 
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 18 
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 2013 
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. Therefore, the Agency's decisions are based on the 
complete data submitted in 2015 supplemented by the 2013 data. The 
results of the analysis of the 2015 and 2013 data are shown in the 
following tables.
Copper Naphthenate

----------------------------------------------------------------------------------------------------------------
                                                   Copper
                                                naphthenate        Biomass/
                 Contaminant                   railroad ties    untreated wood    Fuel oil \b\       Coal \b\
                                                contaminant          \b\
                                               levels \a\ \f\
----------------------------------------------------------------------------------------------------------------
                                         Metal Elements (PPM-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony....................................           ND<1.4            ND-26          ND-15.7           0.5-10
Arsenic.....................................        0.53-0.93           ND-298            ND-13          0.5-174
Beryllium...................................          ND-0.05            ND-10            ND-19          0.1-206
Cadmium.....................................          ND-0.20            ND-17           ND-1.4           0.1-19
Chromium....................................        0.22-0.50           ND-340            ND-37          0.5-168
Cobalt......................................          ND-0.81           ND-213           ND-8.5           0.5-30
Lead........................................           ND-3.5           ND-340          ND-56.8            2-148
Manganese...................................          7.1-166        ND-15,800         ND-3,200            5-512
Mercury.....................................          ND<0.20           ND-1.1           ND-0.2         0.02-3.1
Nickel......................................         0.79-1.1           ND-540           ND-270          0.5-730
Selenium....................................        0.41-0.84           ND-9.0             ND-4         0.2-74.3
----------------------------------------------------------------------------------------------------------------
                                       Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine....................................           ND<100         ND-5,400         ND-1,260         ND-9,080
Fluorine....................................           ND<100           ND-300            ND-14           ND-178
Nitrogen....................................           ND<500       200-39,500         42-8,950    13,600-54,000
Sulfur......................................          190-240         ND-8,700        ND-57,000       740-61,300
----------------------------------------------------------------------------------------------------------------
                              Semivolatile Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................           3.0-95            ND-50          \h\ 111               --
Acenaphthylene..............................           ND<1.3             ND-4              4.1               --
Anthracene..................................           ND-6.3           0.4-87               96               --
Benzo[a]anthracene..........................           ND<1.3            ND-62         41-1,900               --
Benzo[a]pyrene..............................           ND<1.3            ND-28         0.60-960               --
Benzo[b]fluoranthene........................           ND<1.3            ND-42           11-540               --
Benzo[ghi]perylene..........................           ND<1.3             ND-9             11.4               --
Benzo[k]fluoranthene........................           ND<1.3            ND-16              0.6               --
Chrysene....................................           ND<1.3            ND-53        2.2-2,700               --
Dibenz [a, h] anthracene....................           ND<1.3             ND-3              4.0               --
Fluoranthene................................           ND-6.5          0.6-160         31.6-240               --
Fluorene....................................           4.5-53        \h\ ND-40            3,600               --
Indeno[1,2,3-cd] pyrene.....................           ND<1.3            ND-12              2.3               --
Naphthalene.................................           8.2-80        \h\ ND-38       34.3-4,000               --

[[Page 5327]]

 
Phenanthrene................................           8.2-77          0.9-190        0-116,000               --
Pyrene......................................            ND-15          0.2-160           23-178               --
16-PAH......................................           49-298            5-921     3,900-54,700       \ h\ 6-253
PAH (52 extractable)........................           \e\ --               --               --         14-2,090
Pentachlorophenol...........................        \g\ ND<30             ND-1               --               --
Biphenyl....................................           \e\ --               --      1,000-1,200               --
                                             -------------------------------------------------------------------
    Total SVOC \c\..........................           77-328            5-922     4,900-54,700         20-2,343
----------------------------------------------------------------------------------------------------------------
                       Volatile Organic Compound Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene.....................................          ND<0.69               --            ND-75            ND-38
Phenol......................................           \e\ --               --         ND-7,700               --
Styrene.....................................          ND<0.69               --           ND-320           1.0-26
Toluene.....................................          ND<0.69               --           ND-380           8.6-56
Xylenes.....................................          ND<0.69               --         ND-3,100           4.0-28
Cumene......................................           \e\ --               --      6,000-8,600               --
Ethyl benzene...............................          ND<0.69               --         22-1,270          0.7-5.4
Formaldehyde................................           \e\ --           1.6-27               --               --
Hexane......................................           \e\ --               --        50-10,000               --
                                             -------------------------------------------------------------------
    Total VOC \d\...........................           ND<3.4           1.6-27     6,072-19,810       14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\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
  https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. 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\ EPA has generally defined ``comparable to or lower than'' to mean contaminants can be presented in NHSMs
  within a small acceptable range or at lower levels, relative to the contaminants found in the traditional
  fuels. Thus, fuels that are produced from nonhazardous secondary materials can have contaminants that are
  somewhat higher than the traditional fuel that otherwise would be burned and still qualify as being
  comparable, and would not be considered a solid waste (76 FR 15481).

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

----------------------------------------------------------------------------------------------------------------
                                                   Copper
                                                naphthenate-
                                              borate railroad      Biomass/
                 Contaminant                        ties        untreated wood    Fuel oil \b\       Coal \b\
                                                contaminant          \b\
                                               levels \a\ \f\
----------------------------------------------------------------------------------------------------------------
                                         Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony....................................           ND<1.4            ND-26          ND-15.7           0.5-10
Arsenic.....................................        0.52-0.72           ND-298            ND-13          0.5-174
Beryllium...................................           ND<.67            ND-10            ND-19          0.1-206
Cadmium.....................................         ND-0.078            ND-17           ND-1.4           0.1-19
Chromium....................................        0.11-0.78           ND-340            ND-37          0.5-168
Cobalt......................................          ND-0.74           ND-213           ND-8.5           0.5-30
Lead........................................           ND-4.0           ND-340          ND-56.8            2-148
Manganese...................................           14-170        ND-15,800         ND-3,200            5-512
Mercury.....................................          ND<0.15           ND-1.1           ND-0.2         0.02-3.1
Nickel......................................         0.46-2.0           ND-540           ND-270          0.5-730
Selenium....................................          ND-0.52           ND-9.0             ND-4         0.2-74.3
----------------------------------------------------------------------------------------------------------------
                                       Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine....................................           ND<100         ND-5,400         ND-1,260         ND-9,080

[[Page 5328]]

 
Fluorine....................................           ND<100           ND-300            ND-14           ND-178
Nitrogen....................................           ND<500       200-39,500         42-8,950    13,600-54,000
Sulfur......................................          140-170         ND-8,700        ND-57,000       740-61,300
----------------------------------------------------------------------------------------------------------------
                              Semivolatile Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................           4.8-17            ND-50              111               --
Acenaphthylene..............................           ND-0.9             ND-4              4.1               --
Anthracene..................................           ND-7.2           0.4-87               96               --
Benzo[a]anthracene..........................           ND-3.7            ND-62         41-1,900               --
Benzo[a]pyrene..............................           ND-1.4            ND-28         0.60-960               --
Benzo[b]fluoranthene........................           ND-3.9            ND-42           11-540               --
Benzo[ghi]perylene..........................           ND<1.2             ND-9             11.4               --
Benzo[k]fluoranthene........................            ND-20        \h\ ND-16              0.6               --
Chrysene....................................           ND-6.6            ND-53        2.2-2,700               --
Dibenz [a, h] anthracene....................           ND<1.2             ND-3              4.0               --
Fluoranthene................................            ND-20          0.6-160         31.6-240               --
Fluorene....................................           2.2-16            ND-40            3,600               --
Indeno[1,2,3-cd] pyrene.....................           ND<1.2            ND-12              2.3               --
Naphthalene.................................           5.2-82        \h\ ND-38       34.3-4,000               --
Phenanthrene................................           3.6-43          0.9-190        0-116,000               --
Pyrene......................................            ND-19          0.2-160           23-178               --
16-PAH......................................           39-145            5-921     3,900-54,700            6-253
PAH (52 extractable)........................           \e\ --               --               --         14-2,090
Pentachlorophenol...........................       \g\ ND <28             ND-1               --               --
Biphenyl....................................           \e\ --               --      1,000-1,200               --
                                             -------------------------------------------------------------------
    Total SVOC \c\..........................           66-173            5-922     4,900-54,700         20-2,343
----------------------------------------------------------------------------------------------------------------
                       Volatile Organic Compound Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene.....................................          ND<0.77               --            ND-75            ND-38
Phenol......................................           \e\ --               --         ND-7,700               --
Styrene.....................................          ND<0.77               --           ND-320           1.0-26
Toluene.....................................          ND<0.77               --           ND-380           8.6-56
Xylenes.....................................          ND<0.77               --         ND-3,100           4.0-28
Cumene......................................           \e\ --               --      6,000-8,600               --
Ethyl benzene...............................          ND<0.77               --         22-1,270          0.7-5.4
Formaldehyde................................           \e\ --           1.6-27               --               --
Hexane......................................           \e\ --               --        50-10,000               --
                                             -------------------------------------------------------------------
    Total VOC \d\...........................           ND<3.8           1.6-27     6,072-19,810       14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\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
  https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. 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\ EPA has generally defined ``comparable to or lower than'' to mean contaminants can be presented in NHSMs
  within a small acceptable range or at lower levels, relative to the contaminants found in the traditional
  fuels. Thus, fuels that are produced from nonhazardous secondary materials can have contaminants that are
  somewhat higher than the traditional fuel that otherwise would be burned and still qualify as being
  comparable, and would not be considered a solid waste (76 FR 15481).

    As indicated, railroad ties treated with copper naphthenate-borate 
have contaminants that are comparable to or less than those in biomass/
untreated wood, fuel oil (see discussion of grouping of SVOCs, 78 FR 
9146, February 7, 2013) or coal. 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, or biomass and coal.
Creosote-Borate

[[Page 5329]]



----------------------------------------------------------------------------------------------------------------
                                                 Creosote-
                                              borate railroad      Biomass/
                 Contaminant                        ties        untreated wood    Fuel oil \b\       Coal \b\
                                                contaminant          \b\
                                               levels \a\ \f\
----------------------------------------------------------------------------------------------------------------
                                         Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony....................................           ND<1.3            ND-26          ND-15.7           0.5-10
Arsenic.....................................          ND-0.80           ND-298            ND-13          0.5-174
Beryllium...................................         ND-0.032            ND-10            ND-19          0.1-206
Cadmium.....................................       0.059-0.25            ND-17           ND-1.4           0.1-19
Chromium....................................         0.10-1.1           ND-340            ND-37          0.5-168
Cobalt......................................          ND-0.22           ND-213           ND-8.5           0.5-30
Lead........................................           ND-1.8           ND-340          ND-56.8            2-148
Manganese...................................           22-140        ND-15,800         ND-3,200            5-512
Mercury.....................................         ND-0.066           ND-1.1           ND-0.2         0.02-3.1
Nickel......................................         0.71-1.8           ND-540           ND-270          0.5-730
Selenium....................................         0.59-1.4           ND-9.0             ND-4         0.2-74.3
----------------------------------------------------------------------------------------------------------------
                                       Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine....................................           ND<100         ND-5,400         ND-1,260         ND-9,080
Fluorine....................................           ND<100           ND-300            ND-14           ND-178
Nitrogen....................................           ND<500       200-39,500         42-8,950    13,600-54,000
Sulfur......................................          170-180         ND-8,700        ND-57,000       740-61,300
----------------------------------------------------------------------------------------------------------------
                                      Semivolatile Hazardous Air Pollutants
----------------------------------------------------------------------------------------------------------------
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....................            ND-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     3,900-54,700            6-253
PAH (52 extractable)........................           \e\ --               --               --         14-2,090
Pentachlorophenol...........................      \g\ ND <790             ND-1               --               --
Biphenyl....................................      \h\ 137-330               --      1,000-1,200               --
                                             -------------------------------------------------------------------
    Total SVOC \c\..........................     7,200-39,000            5-922     4,900-54,700         20-2,343
----------------------------------------------------------------------------------------------------------------
                       Volatile Organic Compound Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene.....................................           ND<3.9               --            ND-75            ND-38
Phenol......................................           \e\ --               --         ND-7,700               --
Styrene.....................................           ND<3.9               --           ND-320           1.0-26
Toluene.....................................           ND<3.9               --           ND-380           8.6-56
Xylenes.....................................           ND<3.9               --         ND-3,100           4.0-28
Cumene......................................           \e\ --               --      6,000-8,600               --
Ethyl benzene...............................           ND<3.9               --         22-1,270          0.7-5.4
Formaldehyde................................           \e\ --           1.6-27               --               --
Hexane......................................           \e\ --               --        50-10,000               --
                                             -------------------------------------------------------------------
    Total VOC \d\...........................            ND<20           1.6-27     6,072-19,810       14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\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
  https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. 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\ For SVOC contaminant analyses, grouping of contaminants is appropriate in this case when making contaminant
  comparisons for purposes of meeting the legitimacy criterion. 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. Note also, 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.

[[Page 5330]]

 
\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.

    In the contaminant comparison, EPA considered two scenarios. In the 
first scenario, where a combustion unit is designed to only burn 
biomass or coal, EPA compared contaminant levels in creosote-borate 
treated railroad ties to contaminant levels in biomass/untreated wood 
and coal. In this scenario, the total SVOC levels can reach 39,000 ppm, 
driven by high levels of polycyclic aromatic hydrocarbons (PAHs).\28\ 
As these compounds are at very low levels in biomass/untreated wood and 
coal, the contaminants are not comparable to the traditional fuel that 
the unit was designed to burn.
---------------------------------------------------------------------------

    \28\ 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 both, 
biomass/untreated wood and fuel oil as well as coal. As previously 
mentioned, SVOCs are present in creosote-borate railroad ties (up to 
39,000 ppm) at levels within the range observed in fuel oil (up to 
54,700 ppm). Therefore, creosote-borate railroad ties have comparable 
contaminant levels as compared to other fuels combusted in units 
designed to burn both biomass/untreated wood and fuel oil, and as such, 
meet this criterion if used in facilities that are designed to burn 
both, biomass/untreated wood and fuel oil.\29\ Such facilities designed 
to burn both biomass and fuel may also burn coal.
---------------------------------------------------------------------------

    \29\ 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 8, 2016 final 
rule (81 FR 6688) 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 the contaminants are 
comparable to or lower than a traditional fuel the unit is designed to 
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, February 7, 2013).\30\ 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.
---------------------------------------------------------------------------

    \30\ 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

----------------------------------------------------------------------------------------------------------------
                                               Mixed railroad
                                                ties (25%C-
                                               25%CB- 25%CuN-      Biomass/
                 Contaminant                      25%CuNB)      untreated wood    Fuel oil \b\       Coal \b\
                                                contaminant          \b\
                                                 levels a f
----------------------------------------------------------------------------------------------------------------
                                         Mixed Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony....................................           ND<1.4            ND-26          ND-15.7           0.5-10
Arsenic.....................................          ND-0.81           ND-298            ND-13          0.5-174
Beryllium...................................          ND<0.70            ND-10            ND-19          0.1-206
Cadmium.....................................        0.15-0.38            ND-17           ND-1.4           0.1-19
Chromium....................................        0.15-0.17           ND-340            ND-37          0.5-168
Cobalt......................................          ND-0.07           ND-213           ND-8.5           0.5-30
Lead........................................        0.50-0.81           ND-340          ND-56.8            2-148
Manganese...................................          110-190        ND-15,800         ND-3,200            5-512
Mercury.....................................          ND-0.06           ND-1.1           ND-0.2         0.02-3.1
Nickel......................................         0.75-1.4           ND-540           ND-270          0.5-730
Selenium....................................          ND-0.50           ND-9.0             ND-4         0.2-74.3
----------------------------------------------------------------------------------------------------------------

[[Page 5331]]

 
                                       Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine....................................           ND<100         ND-5,400         ND-1,260         ND-9,080
Fluorine....................................           ND<100           ND-300            ND-14           ND-178
Nitrogen....................................           ND<500       200-39,500         42-8,950    13,600-54,000
Sulfur......................................          140-210         ND-8,700        ND-57,000       740-61,300
----------------------------------------------------------------------------------------------------------------
                              Semivolatile Hazardous Air 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....................           ND-4.7         \i\ ND-3          \i\ 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       34.3-4,000               --
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            6-253
PAH (52 extractable)........................           \e\ --               --               --         14-2,090
Pentachlorophenol...........................           \g\ ND             ND-1               --               --
Biphenyl....................................      \h\ 137-330               --      1,000-1,200               --
                                             -------------------------------------------------------------------
    Total SVOC \c\..........................     4,800-13,000            5-922     4,900-54,700         20-2,343
----------------------------------------------------------------------------------------------------------------
                                   Volatile Organic Compounds (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene.....................................           ND<1.1               --            ND-75            ND-38
Phenol......................................           \e\ --               --         ND-7,700               --
Styrene.....................................           ND<1.1               --           ND-320           1.0-26
Toluene.....................................           ND<1.1               --           ND-380           8.6-56
Xylenes.....................................           ND<1.1               --         ND-3,100           4.0-28
Cumene......................................           \e\ --               --      6,000-8,600               --
Ethyl benzene...............................           ND<1.1               --         22-1,270          0.7-5.4
Formaldehyde................................           \e\ --           1.6-27               --               --
Hexane......................................           \e\ --               --        50-10,000               --
                                             -------------------------------------------------------------------
    Total VOC \d\...........................           ND<5.3           1.6-27     6,072-19,810       14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\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
  https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. 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 IECP data that will be available in the rule docket. As units must be
  designed to burn both fuel oil and biomass, contaminant concentrations in mixed creosote ties must be lower
  than either fuel oil or biomass to be comparable.
\c\ For SVOC contaminant analyses, grouping of contaminants is appropriate in this case when making contaminant
  comparisons for purposes of meeting the legitimacy criterion. 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. Note also, 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 5332]]

 
\i\ EPA has generally defined ``comparable to or lower than'' to mean contaminants can be presented in NHSMs
  within a small acceptable range or at lower levels, relative to the contaminants found in the traditional
  fuels. Thus, fuels that are produced from nonhazardous secondary materials can have contaminants that are
  somewhat higher than the traditional fuel that otherwise would be burned and still qualify as being
  comparable, and would not be considered a solid waste (76 FR 15481).


----------------------------------------------------------------------------------------------------------------
                                               Mixed railroad
                                                ties (56%C-
                                               41%CB- 1%CuN-       Biomass/
                 Contaminant                      2%CuNB)       untreated wood    Fuel oil \b\       Coal \b\
                                                contaminant          \b\
                                               levels \a\ \f\
----------------------------------------------------------------------------------------------------------------
                                         Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony....................................               ND            ND-26          ND-15.7           0.5-10
Arsenic.....................................          ND-0.65           ND-298            ND-13          0.5-174
Beryllium...................................               ND            ND-10            ND-19          0.1-206
Cadmium.....................................        0.08-0.09            ND-17           ND-1.4           0.1-19
Chromium....................................        0.12-0.78           ND-340            ND-37          0.5-168
Cobalt......................................          ND-0.18           ND-213           ND-8.5           0.5-30
Lead........................................          ND-0.93           ND-340          ND-56.8            2-148
Manganese...................................            47-77        ND-15,800         ND-3,200            5-512
Mercury.....................................          ND-0.03           ND-1.1           ND-0.2         0.02-3.1
Nickel......................................        0.50-0.99           ND-540           ND-270          0.5-730
Selenium....................................        0.56-0.68           ND-9.0             ND-4         0.2-74.3
----------------------------------------------------------------------------------------------------------------
                                       Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine....................................           ND<100         ND-5,400         ND-1,260         ND-9,080
Fluorine....................................           ND<100           ND-300            ND-14           ND-178
Nitrogen....................................           ND<500       200-39,500         42-8,950    13,600-54,000
Sulfur......................................          230-280         ND-8,700        ND-57,000       740-61,300
----------------------------------------------------------------------------------------------------------------
                              Semivolatile Hazardous Air 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....................            ND<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     3,900-54,700            6-253
PAH (52 extractable)........................               --               --               --         14-2,090
Pentachlorophenol...........................           \g\ ND             ND-1               --               --
Biphenyl....................................      \h\ 137-330               --      1,000-1,200               --
                                             -------------------------------------------------------------------
    Total SVOC \c\..........................    13,000-17,000            5-922     4,900-54,700         20-2,343
----------------------------------------------------------------------------------------------------------------
                                   Volatile Organic Compounds (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene.....................................           ND<2.3               --            ND-75            ND-38
Phenol......................................           \e\ --               --         ND-7,700               --
Styrene.....................................           ND<2.3               --           ND-320           1.0-26
Toluene.....................................           ND<2.3               --           ND-380           8.6-56
Xylenes.....................................           ND<2.3               --         ND-3,100           4.0-28
Cumene......................................           \e\ --               --      6,000-8,600               --
Ethyl benzene...............................           ND<2.3               --         22-1,270          0.7-5.4
Formaldehyde................................           \e\ --           1.6-27               --               --
Hexane......................................           \e\ --               --        50-10,000               --
                                             -------------------------------------------------------------------
    Total VOC \d\...........................            ND<12           1.6-27     6,072-19,810       14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on September 11, 2015 and October 19, 2015.

[[Page 5333]]

 
\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
  (insert link) https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison.
  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. As
  units must be designed to burn both fuel oil and biomass, contaminant concentrations in mixed creosote ties
  must be lower than either fuel oil or biomass to be comparable.
\c\ For SVOC contaminant analyses, grouping of contaminants in this case is appropriate when making contaminant
  comparisons for purposes of meeting the legitimacy criterion. 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. Note also, 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.
\i\ To be comparable, units must be designed to burn both biomass and fuel oil or have switched from fuel oil to
  natural gas. Such units may also be designed to burn coal.

    In the mixed railroad ties 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, railroad 
ties mixed with creosote, borate and copper naphthenate have comparable 
contaminant levels to biomass and fuel oil, and as such, meet this 
criterion if used in combustion units that are designed to burn both of 
those traditional fuels. Such units may also be designed to burn coal.
4. OTRT Sampling and Analysis Data History
    The data collection supporting the OTRT categorical non-waste 
determination has been based on two rounds of data submittals by TWC, 
followed by EPA questions and TWC responses on the data provided. The 
process of developing the data set is described below and all materials 
provided by TWC are available in the docket to this rulemaking.
    The TWC requested a categorical determination that all types of 
treated wood were non-waste fuels and submitted data on various wood 
preservative types, specifically, those referred to as OTRTs, in their 
April 3, 2013 petition letter (see docket EPA-HQ-OLEM-2016-0248-0019). 
However, the contaminant comparison data presented in the petition were 
incomplete and not based on established analytical data. The EPA 
response requested submittal of additional analytical data to determine 
contaminant concentrations in the OTRT.
    In November 2013, TWC responded to EPA's request, submitting 
laboratory reports on analyses of various \31\ preservative wood types 
and combinations, including OTRTs. The EPA reviewed the laboratory 
reports and techniques, and determined that there were limited data 
points available (i.e., one data point 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.
---------------------------------------------------------------------------

    \31\ Untreated, copper naphthenate, copper naphthenate and 
borate, creosote, creosote and borate, combination of C/CB/CuN/CuNB 
equal mixture C/CB/CuN/CuNB 56/41/1/2 percent mixture FIX.
---------------------------------------------------------------------------

    In August 2015, TWC performed additional sampling and analyses to 
address these deficiencies in the data. In response to EPA's concerns, 
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 to estimate projected future ratios; 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 15 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, semi-
volatiles, 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 
railroad ties. TWC's response noted the sources of railroad ties for 
each chemistry and indicated that the railroad ties generally 
originated in the southeast, but there are also ties from Pennsylvania, 
South Dakota, and Kentucky represented within the TWC data set. 
Chlorine is not part of any of the preservative chemistries, and was 
not detected in any of the samples analyzed.
    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 semi-volatile 
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. EPA requested further information on 
these issues noted in the report narrative, as well as supporting 
quality assurance documentation from the laboratories.

[[Page 5334]]

    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.\32\ 
Also, the shipping cooler temperature criterion is 4 degrees Celsius 
and the lab noted the discrepancy in the report as part of laboratory 
standard operating procedure (see also section III. G. Responses to 
Comments of this preamble). However, the ties were used and stored 
after being taken out of service in ambient atmosphere and were not 
biologically active, therefore, shipping cooler temperatures are not 
expected to affect contaminant levels in the ties.
---------------------------------------------------------------------------

    \32\ 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. Copper and Borates Literature Review and Other EPA Program Summary

    Neither copper nor borate are currently listed as HAPs under the 
Clean Air Act, and thus are not defined as contaminants under NHSM 
regulations section 241.2. or used for contaminant comparison in 
meeting legitimacy criteria (see 78 FR 9139-9143, February 7, 
2013).33 34 To determine whether those compounds pose human 
health or ecological risk concerns, outside the requirements of the 
NHSM legitimacy criteria, and how those concerns might be addressed 
under other Agency programs, we conducted a literature review of copper 
and borate during development of the proposed rule. We also requested 
comments or any additional information on this topic during proposal. 
One comment was received on copper emissions which is discussed in 
section E of this preamble.
---------------------------------------------------------------------------

    \33\ CAA Section 112 requires EPA to promulgate regulations to 
control emissions of 187 HAPs 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 HAPs under CAA 112 and CAA 129.
    \34\ We also note that 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, June 7, 
1991). This rule set a limit of 1.3 ppm copper concentration in 10% of 
customer taps sampled as an action level for public water systems. 
Exceedances of this limit require additional treatment steps in order 
to reduce drinking water 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.\35\ This fact sheet explains that copper is an 
essential nutrient at low concentrations, but is toxic to aquatic 
organisms at higher concentrations and 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. There are no National Recommended Aquatic Life 
Criteria for boron or borates.
---------------------------------------------------------------------------

    \35\ 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. See https://www.epa.gov/wqc/aquatic-life-criteria-copper.
---------------------------------------------------------------------------

    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.\36\ 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). Overall, results from 
many studies reviewed indicate that most of the copper ends up in the 
bottom ash, so fly ash copper content may be minimal. Further, copper 
entrained on fly ash would be co-controlled or reduced with the use of 
good particulate matter controls on the combustion device. 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.
---------------------------------------------------------------------------

    \36\ See memorandum ``Literature Review of Copper-related 
Combustion Emissions Studies'' and bibliography available in the 
docket to this rulemaking for specific studies and further 
information on the findings from studies of copper compounds in 
waste incinerators discussed in this section of the preamble.
---------------------------------------------------------------------------

    Generally, borates have a low toxicity and should not be a concern 
from a health risk perspective.\37\ As indicated previously, neither 
boron nor borates are listed as HAPs 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 \38\ to present some 
potential risks for ecological receptors. As a result of this risk, and 
boron's ability to move through the subsurface,\39\ boron has been 
included as a constituent in CCR monitoring provisions for coal ash 
impoundments.
---------------------------------------------------------------------------

    \37\ https://www.atsdr.cdc.gov/toxprofiles/tp26-c2.pdf.
    \38\ Human and Ecological Risk Assessment of Coal Combustion 
Residuals, EPA, December 2014.
    \39\ See 80 FR 21302, April 17, 2015.
---------------------------------------------------------------------------

    Copper has some acute human health effects, but these exposures 
appear to be the result of direct drinking water or cooking-related 
intake. We anticipate the only possible routes that copper releases to 
the environment could result from burning copper naphthenate treated 
ties would be stormwater runoff from the ties during storage and 
deposition from boiler emissions. As mentioned earlier, the majority of 
copper in combusted material appears to remain in the bottom ash, so 
human health effects from inhalation of fly ash and environmental 
effects from deposition of copper-containing fly ash are likely very 
low. Further, the amount of copper remaining in the railroad tie after 
its useful life may be greatly reduced from the original content due to 
weathering, and facilities manage the processed shredded railroad tie 
material in covered areas to prevent significant moisture swings. 
Therefore, we do not expect impacts from copper in stormwater runoff 
from the storage of the copper naphthenate treated ties.

F. Summary of Comments Requested

    The Agency solicited comments in the proposed rule on non-waste 
fuel categorical determinations as described previously. The Agency 
also specifically requested comments on the following:

[[Page 5335]]

     Whether railroad ties with de minimis levels of creosote 
should be allowed to be combusted in biomass only units;
     Should a particular de minimis 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 OTRT.
     Additional information on the copper borate literature 
review.

G. Responses to Comments

    Summaries of comments received in response to solicitations listed 
above are presented below, along with EPA's responses to the comments. 
All additional comments received are addressed in EPA's Response to 
Comments document, located in the docket EPA-HQ-OLEM-2016-0248.
1. De Minimis Levels of Creosote
    For purposes of contaminant comparisons under NHSM, contaminants in 
railroad ties treated with creosote-borate and mixtures of creosote, 
copper naphthenate and copper naphthenate-borate treated railroad ties 
are not comparable to those contaminants found in biomass. Contaminants 
in such railroad ties would, however, be comparable to contaminants in 
fuel oil. Accordingly, such ties are categorical non-wastes fuels only 
when they are processed and then combusted in: (i) Units designed to 
burn both biomass and fuel oil and (ii) units at major source pulp and 
paper mills or power producers that had been designed to burn biomass 
and fuel oil, but are modified in order to use natural gas instead of 
fuel oil. Mixtures of treated railroad ties containing creosote cannot 
be combusted in biomass only units. The Agency requested comment as to 
whether OTRTs used as fuel containing de minimis levels of creosote, 
should be allowed to be combusted in biomass only units, and if so, 
what should the level be based on.
    Comments: One commenter supported a de minimis exception, but did 
not propose any specific levels that the exception would be based on. 
The commenter stated that there was no practical method for 
establishing with certainty the minimal amount of creosote that will be 
present after processing and cited previous determinations discussed 
above. Another commenter opposed a de minimis exception stating that 
the Agency has proposed no rationale for such an action and it is 
unclear what statute or requirements that the Agency was requesting an 
exception from. The commenter also cited court decisions that 
emphasized that a unit burning any solid waste was a solid waste 
incineration unit (see NRDC v. EPA, 489 F. 3d 1250, 1257-60 (D.C. Cir. 
2007).
    Response: De minimis contaminant levels have been addressed in 
previous NHSM rules. The 2011 final rule stated that C&D wood that has 
been processed to remove contaminants prior to burning (e.g., lead-
painted wood, and treated wood containing contaminants such as arsenic 
and chromium, metals and other non-wood materials), likely meets the 
processing standard and legitimacy criteria, and can be combusted as a 
non-waste fuel. The 2011 rule further stated that such C&D wood may 
contain de minimis amounts of contaminants and other materials after 
processing provided it meets the legitimacy criteria for contaminant 
level comparison. The February 2016 final rule specifically codified a 
de minimis approach for removal of painted wood from C&D wood stating 
that all painted wood must be excluded to the extent that only de 
minimis quantities inherent to the processing limitations may remain 
from the final product fuel (81 FR 6743, February 8, 2016).
    De minimis levels for OTRTs when combusted with creosote treated 
railroad ties (CTRTs) were also addressed in the February 2016 final 
NHSM rule (81 FR 6738, February 8, 2016). As discussed in the preamble, 
TWC had requested that the Agency move forward on a subset of materials 
(i.e., OTRTs) that were identified in their original April 2013 
petition. As these treatments were just coming into use, concern was 
expressed that the presence of small amounts of OTRTs, which were not 
categorically listed non-waste fuels, that may have been processed with 
CTRTs would render all of that material solid wastes since OTRTs are 
not included in the February 2016 categorical determination. The Agency 
concluded that, consistent with the determination in the March 2011 
rule (76 FR 15486), small (de minimis) amounts of OTRTs would not 
result in determinations that the CTRTs being combusted are solid 
wastes.
    The processing of OTRTs is similar to CTRTs (e.g., removal of 
contaminant metals using magnets, improvement of fuel characteristics 
through grindings or shredding) and is conducted by the approximately 
15 treated wood reclamation companies in North America. These systems 
that may process mixtures of both CTRT and OTRT may result in the 
presence of de minimis levels of cresosote in processed railroad ties 
treated with copper naphthenate and copper-naphthenate borate.
    Regarding a definition for de minimis amounts of contaminants 
remaining in OTRT, the agency stated in the February 2013 NHSM rule 
that it was not appropriate to identify specific concentration levels. 
Rather, the agency interprets de minimis as that term is commonly 
understood; (i.e., insignificant or negligible amounts of contamination 
such as small wood sliver containing lead paint \40\).
---------------------------------------------------------------------------

    \40\ See 78 FR 9139, February 7, 2013.
---------------------------------------------------------------------------

    Based on the factors discussed above, the Agency has concluded, 
that OTRT containing de minimis levels (i.e., insignificant or 
negligible amounts) of creosote railroad ties, in mixture combinations 
with the other ORTS, can be combusted in biomass only units provided it 
meets the legitimacy criteria for contaminant levels (i.e., 
concentration levels of contaminants in the processed OTRT are 
comparable to or less than the levels in biomass.
2. Inclusion of Coal
    Comment: Regarding whether the OTRTs considered in this rulemaking 
are combusted in units designed to burn coal (in lieu of or in addition 
to biomass and fuel oil), one commenter indicated that, although they 
were unaware of any cement kilns currently combusting OTRTs, cement 
kilns have burned OTRTs, and cement kilns can burn a range of 
materials, including biomass and coal. Another commenter requested that 
EPA include comparisons to the traditional fuel in its analysis. The 
commenter reported that contaminant comparisons to coal would show that 
the categorical non-waste fuel definition of OTRTs should be expanded 
to include OTRTs burned in units designed to burn coal or units 
designed to burn coal and fuel oil.
    Specifically, the commenter noted the following:
     For the copper naphthenate treated ties, the maximum 
contaminant levels in coal are higher for all contaminants except 
naphthalene and 16-PAHs. However, the semi-volatile organic compound 
(SVOC) grouping level (which includes naphthalene and 16-PAHs) is 
higher for coal than copper naphthenate treated ties.

[[Page 5336]]

     For the copper naphthenate-borate treated ties, the 
contaminant levels in coal are higher for all contaminants except 
naphthalene. However, the SVOC grouping level (which includes 
naphthalene) is higher for coal than copper naphthenate-borate treated 
ties.
     For the creosote-borate treated ties, the contaminant 
levels in coal are higher for all contaminants except naphthalene, 
biphenyl, 16-PAHs, and the SVOC grouping overall. However, the SVOC 
grouping contaminant level is higher for fuel oil than creosote-borate 
treated ties.
    The commenter requested that EPA expand the proposed non-waste fuel 
definition, based on these results, to include copper naphthenate and 
copper naphthenate-borate treated ties combusted in units designed to 
burn coal during normal operations. The commenter further requested 
that EPA include creosote-borate treated ties combusted in units 
designed to burn coal and fuel oil during normal operations.
    Response: EPA has added coal to the contaminant comparisons of 
OTRTs to traditional fuels as well as adding specific regulatory 
language. Specifically, contaminants in OTRTs are presented in 
comparison to those in coal and other traditional fuels in the tables 
in section III.D.3.iii of this preamble, and wording has been added to 
the regulatory language in Sec.  241.4(a)(8)-(10).
    Thus, EPA is listing the following OTRTs as categorical non-waste 
fuels:
     Copper naphthenate treated railroad ties combusted in 
units designed to burn biomass only, biomass and fuel oil, or biomass 
and coal.
     Copper naphthenate-borate treated railroad ties combusted 
in units designed to burn biomass only, biomass and fuel oil or biomass 
and coal.
     Creosote-borate treated railroad ties (and mixtures of 
creosote, borate and copper naphthenate treated railroad ties) 
combusted only in units designed to burn both biomass and fuel oil, or 
units that have switched to natural gas from fuel oil; and where such 
units may also be designed to burn coal.
3. Sampling and Data Quality Concerns
    Comment: Regarding the data used to support these non-waste 
determinations, one commenter stated that the data were insufficient. 
The commenter argued that only three data points were used and that 
statistical techniques to address variability were not applied.
    Response: EPA disagrees with the commenter that the data were 
insufficient. A total of 18 grab samples were analyzed, and sample ties 
were comingled with ties originating from numerous manufacturing 
locations in multiple states in order to represent actual processing. 
All data and sampling procedures exceptions were addressed by the 
company and were within normal operating and analytical parameters 
(i.e., no corrective actions were deemed necessary to validate the 
data). Thus, EPA agrees that the sampling results submitted were 
appropriate for use in comparing contaminant levels with those in 
comparable traditional fuels.
    To address the commenter's concerns regarding variability, EPA has 
reviewed the TWC 2015 data presented in the petition and calculated the 
90, 95, and 99 percent upper prediction limits (UPLs) for contaminants 
listed in the comparison charts to see how they compare with the TWC's 
data. EPA calculated UPLs for metals, sulfur, naphthalene, and 16-
PAH.\41\ The UPL calculation methodology and results are presented in 
the memo ``Contaminant Data UPL Calculations for Other Treated Railroad 
Ties (OTRTs)'' found in the docket for this rulemaking. For copper 
naphthenate and copper naphthenate-borate treated ties, contaminant 
levels at the 99 percent UPL fell within the corresponding contaminant 
ranges for biomass and fuel oil. For creosote-borate treated ties, 
SVOCs (naphthalene and 16-PAH) are the only contaminants at the 99 
percent UPL that does not fall within the range of SVOC concentrations 
found in biomass or fuel oil. At the 95 percent UPL, all three OTRTs 
are within the biomass and fuel oil contaminant ranges. EPA therefore 
believes that variability in the data has been sufficiently accounted 
for in the contaminant comparisons.
---------------------------------------------------------------------------

    \41\ Cl, F and N were not detected in any of the analyses, so 
with equal detection limits for each data point, no UPL value could 
be calculated for these three contaminants.
---------------------------------------------------------------------------

    Comment: One commenter stated that more sensitive testing should 
have been done to determine if pentachlorophenol was present in the 
cases where it was tested for but results were below method detection 
limit (MDL). The commenter noted that if high enough, pentachlorophenol 
levels could render discarded railroad ties hazardous waste, which 
would require a facility combusting the material to be regulated as a 
hazardous waste combustor.
    Response: EPA has evaluated the comment against the data available, 
and does not agree that more sensitive testing for pentachlorophenol is 
necessary for the three OTRTs and mixtures analyzed and discussed in 
the proposal. As noted in the proposal, pentachlorophenol is a distinct 
preservative type used by the industry; it is not one of the 
preservatives being presented in the data of the proposal, nor is it 
expected to be present in any of the preservative types being 
considered under the OTRT rulemaking. Pentachlorophenol has a 
distinctly different chemical structure than any of the preservatives 
being currently considered under the OTRT rulemaking. First, none of 
the preservatives being considered contain chlorine as part of the 
chemical structure. Pentachlorophenol, as the name suggests, contains 5 
chlorine atoms attached to a phenolic base. In the case of the OTRT 
samples, chlorine, in addition to pentachlorophenol, was found to be 
non-detect at a level of 100 ppm (dry basis), which is at the lower 
range of chlorine content values found in untreated wood.
    Second, as also discussed in the proposed rulemaking preamble, the 
dilution amounts used for semivolatile (which behave similarly to 
pentachlorophenol) was necessarily larger for the creosote-containing 
preservative mixes, which influenced the detection levels for 
semivolatile analytes. The detection levels for pentachlorophenol 
follow this trend, where the copper naphthenate and copper naphthenate-
borate pentachlorophenol method reporting limits are 30 and 28 ppm, 
respectively, and the mixtures with creosote being an order of 
magnitude higher. This increase in the method reporting limit for these 
creosote-containing samples is not an indication that pentachlorophenol 
is present in the creosote-containing samples, but more of procedural 
necessity due to the method and the equipment used for the analysis, as 
the laboratory pointed out in their results narrative.
4. Additional Data for Copper and Borates Literature Review
    As discussed in the OTRT proposal, direct stormwater runoff from 
material storage and deposition from boiler emissions are expected to 
be the only paths for copper to be released to the environment from 
burning copper naphthenate treated ties. Additionally, there is 
evidence that copper in the presence of chlorine could lead to 
polychlorinated dioxin/furan (PCDD/PCDF) through a reaction pathway 
involving CuCl and CuCl2. EPA stated in the proposal that 
copper emissions from units burning these ties would be controlled in 
the units' air pollution control devices.

[[Page 5337]]

    Comment: Area sources may not have any PM control requirements 
under the area source boilers rule. Emission limits for copper, borate, 
or HAPs are not required under CAA standards for smaller area sources 
(standards for area sources focus on tune-ups of the boiler unit).
    Response: EPA stated in the proposal that copper emissions from 
units burning these ties would be controlled in the units' air 
pollution control devices. While such controls are required for major 
sources of HAPs, EPA agrees with the commenter that emission controls 
for area source are not required. However, as stated previously, copper 
is not a HAPs and is therefore not subject to regulation under CAA 
sections 112 (nor is it a pollutant listed under CAA section 129). NHSM 
rule limits the definition of ``contaminant'' to the HAPs covered under 
CAA 112 and 129. CAA 112 lists 187 HAPs from sources in source 
categories, and 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).

IV. Effect of This Final Rule 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 (76 FR 15456), 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 \42\ for the discussion 
on the effect of the NHSM rule on other programs.
---------------------------------------------------------------------------

    \42\ 76 FR 15456, March 21, 2011 (page 15545).
---------------------------------------------------------------------------

V. State Authority

A. Relationship to State Programs

    This final rule 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 \43\ 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 final 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.
---------------------------------------------------------------------------

    \43\ 76 FR 15456, March 21, 2011 (page 15546).
---------------------------------------------------------------------------

B. State Adoption of the Rulemaking

    No federal approval procedures for state adoption of this final 
rule are included in this rulemaking action under RCRA subtitle D. 
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 made in this document will be incorporated (or possibly 
adopted by authorized state air programs) consistent with the state's 
laws and administrative procedures.

VI. Costs and Benefits

    As discussed in previous sections, this final rulemaking 
establishes a categorical non-waste determination for OTRT. The 
determination allows OTRTs to be combusted as a product fuel in units 
subject to the CAA section 112 emission standards (provided the 
conditions of the categorical listing are met) without being subject to 
a detailed case-by-case analysis of the material by individual 
combustion facilities. The rule provides additional clarity and 
direction for generators, potential users and owners or operators of 
combustion facilities.
    The proposed OTRT rule stated that the action was definitional in 
nature, and any costs or benefits accrued to the corresponding Clean 
Air Act rules. In accordance with the Office of Management and Budget 
(OMB) Circular A-4 requirement that EPA analyze the costs and benefits 
of regulations, EPA prepared an economic assessment (EA) document \44\ 
for the proposal that examined the scope of indirect impacts for both 
costs and benefits.
---------------------------------------------------------------------------

    \44\ 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.
---------------------------------------------------------------------------

    Based on public comments, information from stakeholders and the 
Executive Order 13771 signed January 30, 2017, the Agency has expanded 
the EA for the final rule to take into account additional cost savings. 
In considering this information, EPA determined that the final OTRT 
rule EA should consider the potential aggregate cost savings to 
industry when these materials are regulated as non-waste fuels (because 
of this rulemaking), rather than as solid waste. In addition, the 
Agency is ensuring that its cost benefit analysis is consistent with 
the OMB guidance for E.O. 13771. To do that, we made necessary 
adjustments to the final OTRT rule EA.\45\
---------------------------------------------------------------------------

    \45\ U.S. EPA, Office of Resource Conservation and Recovery, 
``Assessment of the Potential Costs, Benefits and Other Impacts for 
the Final 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.
---------------------------------------------------------------------------

    For purposes of the final rule EA, combustion facilities that wish 
to add OTRT to their fuel mix now or in the future are assumed to 
operate under CAA 112 standards. OTRTs currently represent a small 
fraction of treated railroad ties combusted for fuel, but that amount 
will increase over time. The EA concludes that absent the final 
categorical rule, OTRT would be considered a solid waste and combustion 
facilities that wish to add OTRT to their fuel mix would have to incur 
the costs associated with upgrading to section 129.
    The EA concludes that the categorical rule, which designates OTRT 
as non-wastes under certain conditions, results in a cost savings from 
these avoided costs of section 129 upgrades for facilities adding OTRT 
to the fuel mix. The unit-level cost savings were estimated, on 
average, to be approximately $266,000 per year. EPA estimates that 
industry-wide undiscounted costs savings from not having to operate 
under CAA Section 129 regulations when combusting these OTRTs for 
energy on the magnitude of between $3.1 million and $24 million 
annually over the next 20 years. In addition, the assessment indicated 
that the increased regulatory clarity associated with the action could 
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.
    Another, more likely scenario is also addressed in the EA, where, 
absent a categorical non-waste fuel determination for OTRTs, combustors 
decide not to combust OTRTs and do not perform any air pollution 
control upgrades to meet section 129 standards. In this scenario, OTRTs 
are instead disposed of in landfills and virgin biomass is purchased by 
the combustor to make up for the additional heat content that OTRTs 
would provide. EPA

[[Page 5338]]

estimates that the undiscounted costs avoided by the final rule of 
landfilling the OTRT, is between $190,000 and $1.4 million annually 
over the next 20 years. Looking at these two scenarios and applying a 
7% discount rate, EPA estimates that the present value range of cost 
savings for this rule over 20 years are approximately $6.9 million on 
the low end (landfilling) and approximately $110 million on the high 
end (avoided air pollution control upgrades).

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 a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review because it may 
raise novel policy issues. Any changes made in response to OMB 
recommendations have been documented in the docket. 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 Final 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 were asked to submit 
comments on this document but none were received.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory 
action. Details on the estimated cost savings of this final rule can be 
found in EPA's analysis of the potential costs and benefits associated 
with this action.

C. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA as this action only adds 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.

D. 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 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.

E. 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 final 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.

F. 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.

G. 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 final 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.

H. 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 final rule, in conjunction with the corresponding CAA rules, 
may indirectly stimulate the increased fuel use of one or 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, which is assumed to be landscape use or being sent to 
landfills. Some crossties may also go to CISWI units. 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 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.\46\ We assessed the share of the population under 
the age of 18 living within a three-mile (approximately five 
kilometers) radius of these facilities.

[[Page 5339]]

Three miles has been used often in other demographic analyses focused 
on areas around industrial sources.\47\
---------------------------------------------------------------------------

    \46\ The extremely large number of area source boilers and a 
lack of site-specific coordinates prevented us from assessing the 
demographics of populations located near area sources. In addition, 
we did not assess child population percentages surrounding cement 
kilns that may use CTRTs/OTRTs for their thermal value.
    \47\ 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.
---------------------------------------------------------------------------

    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.\48\ 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 landfills 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, 
transportation, 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.
---------------------------------------------------------------------------

    \48\ 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.
---------------------------------------------------------------------------

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

    This action is not ``significant energy action'' because it is not 
likely to have a significance adverse effect on the supply, 
distribution or use of energy. The selected NHSMs affected by this 
final action are not generated in quantities sufficient to 
significantly (adversely or positively) impact the supply, 
distribution, or use of energy at the national level.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). 
This is because the overall level of emissions, or the emissions mix 
from boilers, are not expected to change significantly because the 
three NHSMs 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 \49\ 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 \50\ 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).
---------------------------------------------------------------------------

    \49\ 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.
    \50\ This figure is for overall population minus white 
population and does not include the Census group defined as ``White 
Hispanic.''
---------------------------------------------------------------------------

    In addition to the demographics assessment described 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 combustion 
units are likely to be similar.
     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.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 241

    Environmental protection, Air pollution control, Non-hazardous

[[Page 5340]]

secondary materials, Waste treatment and disposal.

    Dated: January 26, 2018.
E. Scott Pruitt,
Administrator.

    For the reasons stated in the preamble, EPA is amending title 40, 
chapter I, of the Code of Federal Regulations as follows:

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

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

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


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, including 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, including 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/or copper naphthenate treated railroad ties that 
are processed and then combusted in the following types of units. 
Processing must include, at a minimum, metal removal and shredding or 
grinding.
    (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, designed to burn biomass and 
fuel oil as part of normal operations and not solely as part of start-
up or shut-down operations, but are modified (e.g., oil delivery 
mechanisms are removed) in order to use natural gas instead of fuel 
oil, 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.
    (iii) Units meeting requirements in paragraph (a)(8)(i) or (ii) of 
this section that are also designed to burn coal.
    (9) Copper naphthenate treated railroad ties that are processed and 
then combusted in units designed to burn biomass, biomass and fuel oil, 
or biomass and coal. Processing must include at a minimum, metal 
removal, and shredding or grinding.
    (10) Copper naphthenate-borate treated railroad ties that are 
processed and then combusted in units designed to burn biomass, biomass 
and fuel oil, or biomass and coal. Processing must include at a 
minimum, metal removal, and shredding or grinding.
* * * * *
[FR Doc. 2018-02337 Filed 2-6-18; 8:45 am]
BILLING CODE 6560-50-P