[Federal Register Volume 88, Number 200 (Wednesday, October 18, 2023)]
[Rules and Regulations]
[Pages 71761-71775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22878]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

[EPA-HQ-OLEM-2020-0550; FRL-7815-01-OLEM]
RIN 2050-AH13


Non-Hazardous Secondary Material Standards; Response to Petition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency is finalizing its denial 
of a rulemaking petition from American Forest and Paper Association et 
al. requesting amendments to the Non-Hazardous Secondary Materials 
regulations, initially promulgated on March 21, 2011, and amended on 
February 7, 2013, February 8, 2016, and February 7, 2018, under the 
Resource Conservation and Recovery Act. These regulations establish 
standards and procedures for identifying whether non-hazardous 
secondary materials are solid wastes when legitimately used as fuels or 
ingredients in combustion units. The petition requested the following 
amendments: Change the legitimacy criterion for comparison of 
contaminants in the non-hazardous secondary material against those in 
the traditional fuel the unit is designed to burn from mandatory to 
``should consider''; remove associated designed to burn and other 
limitations for creosote-treated railroad ties; and revise the 
definition of ``paper recycling residuals'' to remove the limit on non-
fiber materials in paper recycling residuals that can be burned as a 
non-waste fuel. The Environmental Protection Agency proposed to deny 
the petition on January 28, 2022. After review of the public comments, 
the Agency is finalizing its denial of the requested amendments. In 
addition to denying this rulemaking petition, the Agency is revising 
the definition of paper recycling residuals to limit the impact non-
fiber materials may have on the heat value of paper recycling residuals 
in order for them to be considered a non-waste fuel.

DATES: This final rule is effective on December 18, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OLEM-2020-0550. 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 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 electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Patrick Wise, Office of Resource 
Conservation and Recovery, Materials Recovery and Waste Management 
Division (MC 5303P), Environmental Protection Agency, 1200 Pennsylvania 
Avenue NW, Washington, DC 20460; telephone number: 202-566-0520; email 
address: [email protected].

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

I. General Information
    A. List of Abbreviations and Acronyms Used in This Proposed Rule
    B. What is the statutory authority for this proposed rule?
    C. Does this proposed rule apply to me?
II. Background
    A. History of Non-Hazardous Secondary Materials Rulemaking
    B. Summary of This Action
    C. Summary of the Petitioners' Requested Changes
    D. Background on Creosote-Treated Railroad Ties
III. EPA Response to Petitioners' Requested Changes
IV. Effect of This Rule on Other Programs
V. State Authority
    A. Relationship to State Programs
    B. State Adoption of the Rulemaking
VI. Costs and Benefits
VII. Children's Health
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

[[Page 71762]]

I. General Information

A. List of Abbreviations and Acronyms Used in This Rule

AAR Association of American Railroads
AF&PA American Forest and Paper Association
ASLRRA American Short Line and Regional Railroad Association
AWC American Wood Council
Btu British thermal unit
CAA Clean Air Act
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 pollutants
ISRI Institute of Scrap Recycling Industries
MACT Maximum achievable control technology
NAICS North American Industrial Classification System
NHSM Non-hazardous secondary material
OMB Office of Management and Budget
PRR Paper recycling residuals
RCRA Resource Conservation and Recovery Act
RIN Regulatory information number
SO2 Sulfur dioxide
SVOC Semi-volatile organic compound
TWC Treated Wood Council
U.S.C. United States Code

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

    The Environmental Protection Agency (EPA or ``the Agency'') is 
finalizing its denial of the requested revisions in the American Forest 
and Paper Association (AF&PA) petition \1\ and is making regulatory 
revisions to the definition of paper recycling residuals 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).
---------------------------------------------------------------------------

    \1\ Petition for Rulemaking to Amend the Legitimacy Criteria in 
40 CFR part 241,--The Categorical Non-Waste Fuels Classification 
Criteria for Creosote Treated Railroad Ties and Other Treated 
Railroads Ties, and the Definition of Paper Recycling Residuals, 
December 7, 2018, available in docket (EPA-HQ-OLEM-2020-0550).
---------------------------------------------------------------------------

C. Does this final rule apply to me?

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

    Generators and Potential Users \a\ of Categorical Non-Waste Fuels
------------------------------------------------------------------------
        Primary industry category or subcategory             NAICS \b\
------------------------------------------------------------------------
Utilities...............................................             221
Manufacturing...........................................      31, 32, 33
Wood Product Manufacturing..............................             321
Sawmills................................................          321113
Wood Preservation (includes railroad tie creosote                 321114
 treating)..............................................
Paper Manufacturing.....................................             322
Cement Manufacturing....................................           32731
Rail Transportation (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 which the 
EPA is aware of 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.

II. Background

A. History of the Non-Hazardous Secondary Materials Rulemaking

    The non-hazardous secondary materials (NHSM) regulations establish 
standards and procedures for identifying when non-hazardous secondary 
materials burned in combustion units are solid wastes. 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 hinges 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 a 
material or any portion thereof 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 (NRDC v. EPA, 489 
F.3d 1250, 1258). If the material is not a solid waste, combustion 
units are required to meet the CAA section 112 emission standards. 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'' (42 U.S.C.

[[Page 71763]]

7429(g)(6)). The Solid Waste Disposal Act, as amended, is commonly 
referred to as RCRA.
    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 advance notice of proposed rulemaking (ANPRM), 
which was published in the Federal Register on January 2, 2009 (74 FR 
41). The EPA then published an NHSM proposed rule on June 4, 2010 (75 
FR 31844), which the EPA finalized on March 21, 2011 (76 FR 15456).
    In the March 21, 2011 rule, the EPA finalized standards and 
procedures to be used to identify whether NHSMs are solid wastes when 
used as fuels or ingredients in combustion units. ``Secondary 
material'' was defined for the purposes of that rulemaking as any 
material that is not the primary product of a manufacturing or 
commercial process, and can include post-consumer material, off-
specification commercial chemical products or manufacturing chemical 
intermediates, post-industrial material, and scrap (codified at 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 at 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 at 40 CFR 241.2).
    A key concept included in the March 21, 2011 rule is that NHSMs 
used as non-waste fuels in combustion units regulated under CAA section 
112 must meet the legitimacy criteria specified in 40 CFR 241.3(d)(1); 
otherwise, NHSMs must be combusted in incinerator units regulated under 
CAA section 129. Application of the legitimacy criteria helps ensure 
that the fuel product is being legitimately and beneficially used and 
not simply being discarded through combustion. To meet the legitimacy 
criteria, the NHSM must be managed as a valuable commodity, have a 
meaningful heating value and be used as a fuel in a combustion unit 
that recovers energy, and contain contaminants or groups of 
contaminants at concentration levels comparable to (or lower than) 
those in traditional fuels which the combustion unit is designed to 
burn. The NHSM legitimacy criteria have been in place since 2011 and 
were upheld by the D.C. Circuit Court in Solvay v. EPA. 608 Fed. Appx. 
10 (D.C. Cir. 2015) (45 ELR 20107 Nos. 11-1189, (D.C. Cir., 06/03/
2015)).
    Based on these criteria, the March 21, 2011 rule identified the 
following NHSMs as not being solid wastes:
     The NHSM that meets the legitimacy criteria and is used as 
a fuel and that remains within the control of the generator (whether at 
the site of generation or another site the generator has control over) 
(40 CFR 241.3(b)(1));
     The NHSM that meets the legitimacy criteria and is used as 
an ingredient in a combustion unit (whether by the generator or outside 
the control of the generator) (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
     On a case-by-case petition basis, NHSM that has been 
determined to have been 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 2013, the EPA amended the NHSM rules to ``clarify several 
provisions in order to implement the non-hazardous secondary materials 
rule as the Agency originally intended.'' \2\ While the 2013 final rule 
did not contain any provisions specific to creosote-treated railroad 
ties (CTRT), the EPA noted that AF&PA and the American Wood Council 
submitted a letter with supporting information on December 6, 2012, 
seeking a categorical non-waste determination for CTRT combusted in any 
unit.\3\ The EPA discussed at the time that the Agency was reviewing 
the petition and also asked petitioners to provide additional 
information regarding CTRT, including industry sectors that burn CTRT; 
types of combustion units; types of traditional fuels that could 
otherwise be burned in these combustion units; extent of use of CTRT in 
non-industrial boilers; and laboratory analyses of CTRT for the 
contaminants, as defined under 40 CFR 241.2, known to be significant 
components of creosote, such as polycyclic aromatic hydrocarbons. The 
EPA also provided notice that, assuming the additional information 
supported the petitioners' representations, the Agency intended to 
propose a categorical non-waste fuel determination for CTRT.
---------------------------------------------------------------------------

    \2\ Commercial and Industrial Solid Waste Incineration Units: 
Reconsideration and Final Amendments; Non-Hazardous Secondary 
Materials That Are Solid Waste; Final Rule. 78 FR 9112, February 7, 
2013.
    \3\ 78 FR 9173, February 7, 2013.
---------------------------------------------------------------------------

    On February 8, 2016 (81 FR 6687), the EPA published final NHSM rule 
amendments that provided a categorical non-waste fuel determination for 
CTRT that undergo, at a minimum, metal removal and shredding or 
grinding and are used as fuel in 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.\4\ In addition, the final rule 
included a special provision for units at major source pulp and paper 
mills or power producers subject to 40 CFR part 63, subpart DDDDD that 
were designed to burn biomass and fuel oil as part of normal 
operations, but are modified (e.g., oil delivery mechanisms are 
removed) in order to use natural gas instead of fuel oil. These units 
may continue to combust the CTRT as product fuel if the following 
conditions are met: (A) CTRT must be burned in an existing (i.e., 
commenced construction prior to April 14, 2014) stoker, bubbling bed, 
fluidized bed, or hybrid suspension grate boilers; and (B) CTRT can 
comprise no more than 40 percent of the fuel that is used on an annual 
heat input basis.
---------------------------------------------------------------------------

    \4\ 81 FR 6723, February 8, 2016.
---------------------------------------------------------------------------

    A similar categorical non-waste fuel determination approach was 
applied to creosote-borate and mixtures of creosote and certain non-
creosote treated railroad ties (i.e., other treated railroad ties, or 
OTRT) in the February 7, 2018 NHSM rule amendments.\5\
---------------------------------------------------------------------------

    \5\ 83 FR 5318-19, February 7, 2018.
---------------------------------------------------------------------------

B. Summary of This Action

    This action consists of two parts. First, the Agency is finalizing 
its response to a rulemaking petition (``the petition'') requesting 
amendments to the NHSM regulations, initially promulgated on March 21, 
2011, and amended on February 7, 2013, February 8, 2016, and February 
7, 2018 under RCRA. Second, the Agency is finalizing a revised 
definition of PRR. These two parts of this action are separate and 
distinct, and each part operates independently from the other.
    In addition, within the first part (in which the Agency is 
finalizing its response to the petition), the Agency intends that each 
of the individual components of the petition and EPA's responses to 
those components, are also severable.

C. Summary of the Petitioners' Requested Changes

    The petition was received on December 7, 2018; petitioners included 
AF&PA, the Association of American Railroads (AAR), Treated Wood 
Council (TWC), American Short Line and Regional Railroad Association

[[Page 71764]]

(ASLRRA), and American Wood Council (AWC). The petition requested the 
following amendments to the NHSM regulations: (1) Change from mandatory 
to ``should consider'' the legitimacy criterion for comparison of 
contaminants in the NHSM to the traditional fuel the unit is designed 
to burn found at 40 CFR 241.3(d)(1)(iii); (2) remove associated 
designed to burn and other limitations for creosote-treated railroad 
ties found at 40 CFR 241.4(a)(7)-(10); and (3) revise the definition of 
paper recycling residuals that can be burned as non-waste fuel found at 
40 CFR 241.2 to remove the limit on non-fiber materials. In issuing 
this petition denial, the EPA has considered and addressed each of the 
issues raised in the petition throughout this notice. Arguments raised 
in pages 13-16 of the petition regarding the contaminant comparison 
criteria are addressed in Section III.A. of the preamble; arguments 
raised on pages 16-17 of the petition regarding CTRT storage times are 
addressed in Section III.C. of the preamble; arguments raised in pages 
18-20 of the petition regarding environmental benefits of removing 
restrictions on the combustion of CTRT are addressed in Sections III.A 
and III.B of the preamble; arguments raised in pages 20-22 of the 
petition regarding the definition of paper recycling residuals are 
addressed in Section III.D of the preamble.

D. Background on Creosote-Treated Railroad Ties

    CTRT are still produced in large numbers today, and roughly 10-20 
million railroad ties are removed from service each year in the U.S.\6\ 
After railroad ties are removed from service, they may be stored for 
varying periods of time before being transferred for sorting/
processing. Based on information provided by industry,\7\ the 
processing of the railroad ties into fuel by the reclamation/processing 
companies involves several steps (metal removal, shredding, screening, 
etc.), which have already been described in the proposed petition 
response. Once the processing of CTRT is complete, the CTRT are sold 
directly to the end-use combustor for energy recovery, where they are 
typically combusted within a few days or weeks of receipt.
---------------------------------------------------------------------------

    \6\ 2018 Railroad Tie Survey, Association of American Railroads, 
available in the docket EPA-HQ-OLEM-2020-0550.
    \7\ AFPA Rail Tie Petition Request December 6, 2012, EPA-HQ-
RCRA-2013-0110-0002.
---------------------------------------------------------------------------

    Use of CTRT as an alternative fuel has both positive and negative 
environmental implications. Combusting CTRT for energy recovery may 
reduce fossil fuel use,\8\ increase the heat value of the fuel mix, 
improve the combustion temperature and conditions,\9\ and divert waste 
ties from landfill. However, CTRT has elevated levels of various 
contaminants when compared to coal (76 FR 15483, March 21, 2011), fuel 
oil, and biomass (81 FR 6687, February 8, 2016). Thus, the 2016 NHSM 
non-waste determination is limited to CTRT that are used as fuel in 
specific types of units where CTRT have contaminants at levels 
comparable to or lower than the traditional fuel that combustion units 
are designed to burn.
---------------------------------------------------------------------------

    \8\ While creosote is a coal derivative, because the creosote 
has already been used once as a preservative on railway ties, 
burning those ties still may reduce the need for burning of fossil 
fuels.
    \9\ In addition, Freeman et al., 2000 indicates that co-firing 
CTRT with coal at 10% the annual heating value may reduce emissions 
of certain pollutants. However, that study is very limited and 
cannot be extrapolated to the use of CTRT as a fuel in general. 
Little is known about impacts of variability in CTRT or coal 
composition and how these would impact emissions for any given 
combustor design or control device configuration. For more 
information, see Creosote Treated Railroad Ties and Coal Co-firing 
Technical Support Document, available in the docket, EPA-HQ-OLEM-
2020-0550-0004.
---------------------------------------------------------------------------

    In addition, in the January 28, 2022 proposed petition response, 
the EPA discussed potential problems associated with processing CTRT 
for use as fuel and requested public comment on the frequency and 
severity of such issues. Grinding CTRT can create dust that may blow 
onto neighboring properties. Processing CTRT into fuel can also be 
associated with other, more-generalized issues like excess noise from 
grinding, loud night-time operations, and the smell of creosote.
    However, Tribal, State, and local governments have authority under 
their solid waste and water programs, as well as local ordinances, to 
address any citizen complaints associated with the management and 
processing of CTRT prior to their use as a non-waste fuel, including 
problems associated with dust, excess noise, and runoff. In most cases, 
CTRT remain solid waste until processed to produce a non-waste fuel per 
40 CFR 241.3(b)(4) and thus remain under such solid waste regulatory 
authority. In addition, a Federal non-waste determination under 40 CFR 
part 241 does not affect a State's authority to regulate a non-
hazardous secondary material as a solid waste under the State's RCRA 
Subtitle D solid waste management program.
    It should also be noted that environmental concerns associated with 
processing and management may impact a material's classification as a 
non-waste fuel. In order to fulfill the ``valuable commodity'' 
legitimacy criterion required of NHSM burned as fuel (40 CFR 
241.3(d)(1)(i)), the material must be ``managed in a manner consistent 
with the analogous fuel or otherwise be adequately contained to prevent 
releases to the environment.'' Likewise, when no analogous fuel exists, 
the material must be ``adequately contained so as to prevent releases 
to the environment.''
    The EPA requested public comment on the potential health and 
environmental risks associated with managing and processing CTRT prior 
to combustion and potential approaches to addressing these issues, but 
the Agency received no public input on these matters. Absent sufficient 
information surrounding these issues and considering the existing 
authority of State and local governments to address many of these 
issues, the EPA is declining to take further action on this issue at 
this time.

III. EPA Response to Petitioners' Requested Changes

    This action is based on the petition and its supporting materials, 
the Agency's review and evaluation of this information, information 
submitted by other stakeholders, and relevant information compiled by 
the Agency. All materials and information that form the basis for this 
decision are available in the public docket supporting this action. The 
petition's arguments and supporting information, in addition to other 
public comments received, are summarized and discussed below, followed 
by the Agency's response.

A. Request To Change the Contaminant Comparison Criterion From 
Mandatory to ``Should Consider''

1. Petitioners' Request
    40 CFR 241.3(d)(1)(iii) currently states that, ``The non-hazardous 
secondary material must contain contaminants or groups of contaminants 
at levels comparable in concentration to or less than those in 
traditional fuel(s) that the combustion unit is designed to burn'' 
(emphasis added). Petitioners requested the following revision in the 
regulatory language: ``Persons should consider whether the non-
hazardous secondary material contains contaminants or groups of 
contaminants at levels comparable in concentration to or lower than 
those in traditional fuel(s) that the combustion unit is capable of 
burning . . . The factor in this paragraph does not have to be met for 
the non-hazardous secondary material to be considered a non-waste 
fuel'' (emphasis added).
    Petitioners' rationale for this suggested change focused on a July 
7, 2017 decision by the U.S. Court of

[[Page 71765]]

Appeals for the D.C. Circuit that rejected mandatory compliance with 
the contaminant comparison criterion portion of the legitimacy test in 
the context of the RCRA rules defining ``solid wastes'' under RCRA's 
Subtitle C hazardous waste program (``DSW rule''). American Petroleum 
Institute v. Environmental Protection Agency, 862 F.3d 50 (D.C. Cir. 
2017) (``API''). Petitioners argued that, in light of the Court's DSW 
rule decision, the continued mandatory use of the contaminant 
comparison criterion in the NHSM rule, including limiting railroad tie 
non-waste fuel classifications to certain types of combustion units, 
can no longer be justified.
    Petitioners referenced preamble language the EPA used in the 2015 
DSW final rule regarding the contaminant comparison criterion and said 
that ``[t]his language is consistent with the Identification of Non-
Hazardous Secondary Materials that are Solid Wastes final rule (76 FR 
15456, March 21, 2011)'' (80 FR 1727, January 13, 2015). From this 
preamble language petitioners concluded that the EPA has acknowledged 
the equivalence of the contaminant comparison factors in the two rules 
(i.e., Factor 4 in the DSW rule and third legitimacy criterion in the 
NHSM rule).
    In 2017, the API Court invalidated the fourth factor in the DSW 
rule, finding that ``[n]ever in the rulemaking does EPA make out why a 
product that fails those criteria is likely to be discarded in any 
legitimate sense of the term.'' 862 F.3d at 62. Petitioners say that 
the Court also challenged the EPA's ``bare assertion that high levels 
of hazardous constituents . . . could indicate discard,'' and noted 
that the contaminant comparison at issue was ``not a reasonable tool 
for distinguishing products from wastes.'' Id at 60, 63 (internal 
quotes omitted).
    Petitioners argued that the API holding, with its critique of the 
EPA's application of this element of the definition of legitimate 
recycling in the DSW rule, applies with equal force to the NHSM 
legitimacy criteria set forth at 40 CFR 241.3(d). See id at 63. 
Therefore, petitioners alleged that, based on the reasoning and holding 
in API, the contaminant comparison criterion currently contained in the 
NHSM rule's legitimacy criteria and the corresponding NHSM rules for 
railroad ties treated with creosote and other wood preservatives can no 
longer be used as mandatory elements to determine whether a secondary 
material is discarded or not.
    Furthermore, petitioners asserted that the EPA has recognized that 
the contaminant comparison should not be a determining factor for 
whether a material is being discarded. In its 2016 Rule on Additions to 
List of Categorical Non-Waste Fuels, the EPA expressly noted that 
``CTRTs do not become wastes solely because of the switch to natural 
gas'' (81 FR 6687, 6731, February 8, 2016). In that rule, the EPA 
reasoned that facilities that have demonstrated the ability to burn 
fuel oil and biomass should not be penalized for switching to natural 
gas, a fuel that creates less air pollution. In addition, petitioners 
stated that the EPA properly determined that resinated wood should 
qualify as a categorical non-waste fuel under the NHSM rule, despite 
expressly recognizing that this material ``may not meet the regulatory 
contaminant legitimacy criteria in every situation'' (78 FR 9112, 9156, 
February 7, 2013). Petitioners claimed that this prior EPA precedent is 
fully consistent with the Court's decision in API and underscores the 
need to eliminate the contaminant comparison as a mandatory factor in 
the NHSM rule's legitimacy criteria generally, and as a condition as 
applied to individual NHSMs.
2. Public Comment
    Commenters continued to argue that the 2017 API decision is 
applicable to the NHSM contaminant comparison criterion, iterating 
similar positions taken in the original petition. In particular, 
commenters contended that the sole statutory definition of ``solid 
waste'' in RCRA means that the contaminant comparison test must be 
applied identically for hazardous and non-hazardous materials. Because 
the test was invalidated for hazardous secondary material in the 2017 
API decision, they argued the contaminant comparison criterion should 
also be eliminated as a mandatory criterion for non-hazardous secondary 
material being burned as a non-waste fuel. Commenters likewise stated 
that a non-mandatory standard should be permissible for materials that 
are not hazardous when discarded if a non-mandatory test is allowable 
for materials that are hazardous when discarded. Commenters also stated 
that combustion units would still be regulated by CAA section 112 
standards if the contaminant comparison test was not mandatory.
3. EPA Response
    The argument that the 2017 API decision invalidates the contaminant 
comparison criterion for the NHSM program fails because the contaminant 
standards in each rule were established for different purposes and in 
different contexts.
    The DSW rule establishes standards for legitimate recycling of 
hazardous secondary materials into products (not fuels). The exclusions 
in the DSW rule address reclamation, and specifically omit burning for 
energy recovery. Unlike NHSMs, hazardous secondary materials that are 
burned for energy recovery are always solid waste,\10\ unless the 
material is a commercial chemical product that is itself a fuel.\11\ 
Combustion is an inherently destructive process, even when energy is 
recovered, and unlike other types of recycling, there is no final 
product to consider in determining the impact of elevated hazardous 
constituents. The contaminant comparison in 40 CFR 260.43(b) compares 
hazardous constituents in the product of the recycling process to the 
corresponding constituents in the analogous product made from virgin 
material. While 40 CFR 260.43(b) specifies that this factor ``does not 
have to be met for the recycling to be considered legitimate,'' the 
regulation also explains that ``[i]n evaluating the extent to which 
this factor is met and in determining whether a process that does not 
meet this factor is still legitimate, persons can consider exposure 
from toxics in the product, the bioavailability of the toxics in the 
product and other relevant considerations.'' In other words, the 
definition of legitimate recycling in 40 CFR 260.43, as it relates to 
hazardous constituents, focuses on the effect those hazardous 
constituents have on the risks posed by the product of recycling.
---------------------------------------------------------------------------

    \10\ The EPA notes that the statutory objectives associated with 
designating a solid waste as discarded warrant different 
implementation strategies depending on the context. See Utility Air 
Regulatory Group v. EPA, 573 U.S. 302, 320 (2014) (finding that 
statutory terms, even those that are defined in the statute, ``may 
take on distinct characters from association with distinct statutory 
objects calling for different implementation strategies'').
    \11\ See 40 CFR 261.2(c)(2), RCRA section 3004(q); Natural 
Resources Defense Council v. EPA, 755 F.3d 1010 (June 27, 2014)) and 
Sierra Club v. EPA, 755 F.3d 968.
---------------------------------------------------------------------------

    In contrast, the NHSM rule was established solely to determine 
whether an NHSM that is combusted as a fuel or an ingredient is a waste 
or a non-waste for purposes of applying appropriate emission standards 
under CAA section 129 or CAA section 112. Without the contaminant 
criterion, an NHSM could contain contaminant levels that are 
significantly higher than the traditional fuel(s) they are meant to 
replace and still be considered a non-waste fuel. So, for example, if 
CTRT-derived pellets could be marketed to any wood-burning boiler, such 
as those sometimes used in

[[Page 71766]]

schools,\12\ then those boilers would be burning a material with higher 
levels of contaminants than the clean wood they were designed to burn, 
potentially exposing the children in those schools with wood-burning 
boilers to unexpected air pollutants. Burning is an inherently 
destructive process, even if there is energy recovery. Thus, through 
the NHSM rules, the Agency evaluates whether burning an NHSM for energy 
recovery also has the effect of destroying contaminants that would not 
otherwise be present in the corresponding traditional fuel, indicating 
discard is occurring. The presence of higher levels of contaminants 
underscores the appropriateness of applying CAA section 129 standards 
to the combustion of the material in question, as these standards are 
more appropriate for wastes, which are likely to contain more 
contaminants than traditional fuels.
---------------------------------------------------------------------------

    \12\ See, for example, Biomass Boilers in Public Schools and 
Buildings, https://vecan.net/iniatives/biomass-boilers-public-schools-buildings/, and Wood Pellet Heating for Schools https://www.maineenergysystems.com/wood-pellet-heating-for-schools/, both 
retrieved 06/20/2023.
---------------------------------------------------------------------------

    NHSM standards for categorical non-wastes also differ significantly 
from the DSW rule because the NHSM standards allow consideration of 
``other relevant factors'' in determining whether the contaminant 
comparison criterion is met (see 40 CFR 241.4(b)(5)(ii)). Thus, the 
NHSM standards already provide flexibility to meet the contaminant 
comparison criterion, where appropriate. The API Court's rejection of 
the mandatory contaminant comparison for hazardous wastes in the DSW 
rule turned, in large part, on what the Court viewed as a rigid and 
severe standard. The Court felt that the requirement ``sets the bar at 
the contaminant level of the analogue without regard to whether any 
incremental contaminants are significant in terms of health and 
environmental risks.'' 862 F.3d 50, 60 (D.C. Cir. 2017). However, the 
Court went on to commend an exception to that test in which a recycler 
could satisfy this legitimacy criterion with evidence of ``lack of 
exposure from toxics in the product, lack of the bioavailability of 
toxins in the product, or other relevant considerations which show that 
the recycled product does not contain levels of hazardous constituents 
that pose a significant human health or environmental risk.'' Id. 
(quoting 40 CFR 260.43(a)(4)(iii) (2016)). Ultimately, the Court found 
the exception to be insufficient ``due to the draconian character of 
the procedures.'' Id. at 61. That is, if a recycler failed to satisfy 
any step in the exception process, an otherwise legitimate product 
would be considered to be hazardous waste. The NHSM regulations avoid 
these problems by allowing the Agency to consider ``other relevant 
factors,'' which offers flexibility without the ``draconian'' 
procedures of the 2015 DSW rule. Petitioners recognize this fact by 
noting that the EPA has already applied such flexibility when the 
Agency originally promulgated 40 CFR 241.4(a)(7)(ii), which recognized 
the fact that CTRT burned as fuel in certain units at major source pulp 
and paper mills or power producers which were constructed prior to 
April 14, 2014 and burn CTRT as less than 40% of its fuel source would 
be considered non-waste fuel, even if those units have been modified to 
burn natural gas. Likewise, the Agency previously exercised this 
flexibility in establishing the categorical non-waste listing for 
resinated wood; however, that context differed in that the EPA 
determined that the management of resinated wood prior to combustion as 
a fuel is equivalent to the management of resinated wood being used as 
a raw material. As such, the Agency concluded that, though resinated 
wood may not fulfill the legitimacy criteria in all cases, ``resinated 
wood that is used as fuel represents an integral component of the wood 
manufacturing process and, as such, is not being discarded when burned 
as fuel.'' The use of resinated wood as a fuel is integrated into the 
wood production process in such a way that the relevant manufacturing 
facilities would have to be significantly re-engineered if they could 
not use resinated wood for its fuel value (78 FR 9155, February 7, 
2013). In contrast, units that burn CTRT are far removed from the CTRT 
production process, and are also able to burn other types of fuels, so 
the Agency maintains that the more stringent provisions in the 
categorical non-waste listing for CTRT (as compared to that for 
resinated wood) are appropriate. The EPA also notes that the Agency has 
not reopened or requested comment on this provision, but cites it as a 
demonstration that the Agency can and has used flexibility to address 
case-specific circumstances where appropriate.
    Commenters imply that the existence of such flexibility requires 
the EPA to disregard relative contaminant levels when comparing NHSMs 
to traditional fuels because of other implications related to a 
material's waste status. However, any ``other relevant factors'' 
considered in making a waste determination must be relevant to the core 
question of whether the material is a solid waste when combusted. Some 
commenters seem to propose looking to greenhouse gas emissions and 
landfill capacity as ``other relevant factors,'' but neither of these 
topics dictate whether the particular material in question is combusted 
as a waste. The extent to which a particular disposal practice of NHSM 
does or does not release greenhouse gases or consume landfill capacity 
once discarded does not impact whether the NHSM is discarded when 
combusted.
    Finally, in response to comments arguing that CAA section 112 
standards would still apply to units combusting NHSM with significantly 
elevated levels of contaminants when compared to traditional fuels, the 
EPA does not agree that these elevated levels of contaminants would be 
addressed by the CAA section 112 standards, which were intended for 
units that burn non-waste fuel. Emission standards for dioxins, 
SO2, NOX, etc. for non-major sources are 
addressed under the CAA section 129 standards but are not addressed by 
area source boiler standards under CAA section 112, which require only 
tune-ups. Therefore, for all of the reasons stated above, the API 
decision does not directly apply because the context of burning NHSM 
differs fundamentally from hazardous waste recycling (which, to 
reiterate, does not include burning for energy recovery).
    To end, we also note that the NHSM legitimacy criteria have been in 
place since 2011 and were upheld by the D.C. Circuit Court in Solvay v. 
EPA. 608 Fed. Appx. 10 (D.C. Cir. 2015) (45 ELR 20107 Nos. 11-1189, 
(D.C. Cir., 06/03/2015)). A substantive change to the contaminant 
comparison criterion would allow NHSM generators to ``consider'' 
significantly higher levels of contaminants in their NHSM-derived fuel, 
without any threshold or indication of when such a consideration might 
result in an NHSM being a solid waste. Such a substantive change would 
also create regulatory uncertainty for the combustion units that burn 
this material and rely on an accurate non-waste determination for their 
CAA regulatory applicability determinations. The Agency is, therefore, 
denying the petitioners' request regarding the contaminant comparison 
criterion.

B. Request To Remove Associated Designed To Burn and Other Limitations 
for Creosote-Treated Railroad Ties

1. Petitioners' Request
    As discussed above, 40 CFR 241.3(d)(1)(iii) states that ``[t]he 
non-hazardous secondary material must contain contaminants or groups of 
contaminants at levels comparable in

[[Page 71767]]

concentration to or less than those in the traditional fuel(s) that the 
combustion unit is designed to burn . . .'' (emphasis added). As 
currently applied, the petitioners believe the designed to burn 
criterion means that the exact same railroad tie is considered a solid 
waste when burned in one unit, but a non-waste fuel when burned in 
another--depending solely on the type of fuel the boilers are designed 
to combust. The petition stated that the EPA has acknowledged the 
character of the NHSM does not change depending on the design of the 
boiler it goes to, and has offered no rationale for how the existence 
of a fuel oil nozzle in a boiler (i.e., a boiler originally designed to 
burn fuel oil, but later retrofitted to burn natural gas) informs the 
question of whether CTRT are being legitimately used as fuel, or in 
fact are simply being discarded in a hypothetical ``sham recycling'' 
operation. Accordingly, the petition requested that the EPA remove the 
limitations in the CTRT categorical non-waste listing that are related 
to boiler design (i.e., 40 CFR 241.4(a)(7)(i) and (ii)).
    In addition, petitioners argued, the EPA has imposed other 
restrictions unrelated to the characteristics of the NHSM itself--
including a requirement that the facility in question must have been 
built before April 2014 and that the amount of NHSM combusted in that 
facility may not exceed 40% of the total fuel mix in a given year. 
Petitioners claimed that, in adding these various requirements 
regarding the characteristics of the combustion unit, the 
characteristics of the material and the motivation of the recycler are 
essentially rendered irrelevant to the determination of whether the 
material is a solid waste. Petitioners contend that this is contrary to 
RCRA case law and an arbitrary and unreasonable basis on which to 
decide whether the material is, in fact, being discarded or 
legitimately used as fuel.
    Petitioners indicated that, as the agency charged with 
environmental protection, the EPA should encourage the widespread use 
of CTRT and other similarly situated NHSM as fuel, rather than restrict 
that use and condemn valuable fuel sources to landfills. Furthermore, 
petitioners stated that the regulatory revisions requested in the 
petition promote environmental sustainability, consistent with the 
EPA's Waste Management Hierarchy, eliminate undue and burdensome 
regulation, and reduce costs associated with such regulatory burdens.
2. Public Comment
    Petitioners, through their comments, continued to argue for the 
removal of the associated designed to burn and other limitations for 
CTRT combusted as fuels.
    These commenters stated that the EPA's regulation of CTRT is 
neither reasonable nor appropriate according to the Administrative 
Procedures Act. Commenters expanded upon this point by explaining that 
two identical CTRT removed from service would be regulated differently 
if one were burned in a boiler designed to burn biomass and fuel oil 
and the other in a unit designed to burn biomass and natural gas. 
Commenters further noted that if a boiler designed to burn biomass and 
fuel oil was built before 2014 and converted from fuel oil to natural 
gas, that boiler would be able to burn CTRT as a non-waste fuel, while 
a new boiler designed to burn biomass and natural gas would not. 
Commenters also noted that the EPA has declared resinated wood and coal 
refuse to be non-waste fuels, even though resinated wood contains 
elevated formaldehyde levels compared to virgin biomass and coal refuse 
could be combusted in boilers not designed to burn coal. This decision 
by the EPA allows resinated wood and coal refuse to be combusted in any 
boiler, while CTRT combustion must follow additional conditions to be 
burned as a non-waste fuel only in specific boilers as designated in 40 
CFR 241.4(a)(7).
    One commenter also argued that, if a unit meets its permit 
requirements and the contaminant comparison criterion is met, the 
designed to burn qualification should be irrelevant, and that the CAA 
directs the EPA to focus on emissions from the combustion of fuels 
rather than on the nature of the fuel combusted.
3. EPA Response
    Regarding petitioners' claim that the same NHSM is treated 
differently in different units, such a claim ignores the underlying 
premise of the NHSM rules. As explained in the program's original March 
21, 2011 rulemaking (76 FR 15455), the NHSM program exists to determine 
whether an NHSM that is combusted is a waste or a non-waste for 
purposes of applying appropriate emission standards under CAA section 
129 or CAA section 112 to the unit burning the NHSM. An NHSM that is 
burned in a unit that is designed to burn a comparable traditional fuel 
is, because of that comparability, a non-waste fuel. When an NHSM is 
burned in a unit that is not designed to burn a comparable traditional 
fuel (e.g., that is designed to burn fuel with lower levels of 
contaminants than found in the NHSM), that combustion is acting as a 
means of destroying those elevated contaminants and therefore is more 
appropriately regulated as solid waste incineration. Thus, it is 
entirely appropriate that an NHSM would be considered a non-waste fuel 
when burned in a unit designed to burn a comparable traditional fuel, 
and a solid waste when burned in a unit that is not designed to burn a 
comparable traditional fuel. Contaminants or groups of contaminants in 
the NHSM must occur at levels comparable to or lower than those in the 
traditional fuel the unit is designed to burn. As the Agency determined 
when it established the categorical non-waste listing for CTRT (81 FR 
6687, February 8, 2016), under 40 CFR 241.4(a)(7)(i), each unit must be 
designed to burn both biomass and fuel oil, since contaminant levels in 
CTRT (e.g., SVOCs) are considerably higher than in biomass alone. 
Without the designed to burn criterion, contaminant levels could be 
compared to any traditional fuel or combination of traditional fuels, 
resulting in a unit burning contaminants under the boiler provisions in 
CAA section 112 that the unit would otherwise never have been eligible 
to handle.\13\ The EPA has not reopened or requested comment on the 
contaminant concentrations of a CTRT in this action and continues to 
rely on the determination made in the original CTRT categorical non-
waste listing (81 FR 6687, February 8, 2016).
---------------------------------------------------------------------------

    \13\ This issue would be a concern even under the petitioners' 
requested change to make the contaminant comparison criterion ``to 
be considered'' rather than mandatory.
---------------------------------------------------------------------------

    It should be noted that as a result of the 2013 NHSM rule, the 
regulations already provide considerable flexibility in implementing 
the designed to burn criterion. Persons making contaminant level 
comparisons may choose any traditional fuel that is physically capable 
of being burned, or is actually burned, in the particular type of 
boiler, whether or not the combustion unit is permitted to burn that 
traditional fuel. Broad groups of similar traditional fuels may be used 
when comparing contaminant levels (e.g., coal, biomass, fuel oil, and 
natural gas). The regulatory language in 40 CFR part 241 makes it clear 
that a unit is considered designed to burn a traditional fuel if it can 
burn the fuel, regardless of whether it has burned, or is permitted to 
burn, such a fuel.
    Petitioners suggest replacing language in the CTRT rules regarding 
which units are ``designed to burn'' CTRT with units ``operating in 
compliance with all

[[Page 71768]]

applicable permits.'' However, the NHSM rules are used to determine 
which CAA permits are applicable to a unit combusting NHSM, making the 
suggested reference to ``applicable permits'' circular and meaningless.
    In regard to petitioners' comments on the EPA's decision to include 
in the non-waste determination CTRT burned as fuel in units at major 
source pulp and paper mills or power producers subject to 40 CFR part 
63, subpart DDDDD that had been originally designed to burn biomass and 
fuel oil, but had switched to natural gas (see 40 CFR 241.4(a)(7)(ii)), 
the EPA once again notes that the Agency neither reopened nor took 
comment on this provision. The EPA notes that the petition only raised 
the issue of the requirements that limit the non-waste determination 
for 40 CFR 241.4(a)(7)(ii) to CTRT combusted in facilities that had 
been built before April 2014 in amounts that do not exceed 40% in the 
context of their opposition to any requirements under the non-waste 
determination that are related to the combustion unit.\14\ As discussed 
above, petitioners' claim ignores the underlying premise of the NHSM 
rules. As explained in the program's original March 21, 2011 rulemaking 
(76 FR 15455), the NHSM program exists to determine whether an NHSM 
that is combusted is a waste or a non-waste for purposes of applying 
appropriate emission standards under CAA section 129 or CAA section 112 
to the unit burning the NHSM. Thus, in general, restrictions related to 
ensuring that an NHSM is burned in a unit that was designed to burn a 
comparable fuel in order to be considered a non-waste fuel under the 
CAA are entirely appropriate, because it is the ``designed to burn'' 
criteria that help ensure that the NHSM is burned in units that would 
otherwise burn comparable traditional fuels (and therefore the NHSM is 
not being burned simply as a means of destroying contamination). The 
EPA need not reconsider the specific requirements in 40 CFR 
241.4(a)(7)(ii) beyond the ``designed to burn'' provision that was 
discussed in detail in the petition. No challenge to the 40 CFR 
241.4(a)(7)(ii) regulation was filed and the time period to challenge 
that rule has long passed under the judicial review provision of RCRA 
section 7006, which requires such challenges to be filed within 90 days 
of the rule's promulgation. The opportunity to petition the Agency for 
changes to any RCRA rule is always available to members of the public 
(as is the current case), but such petitions are evaluated typically 
based on new information identified by petitioners (as well as 
information identified by the Agency, and those commenting on a 
proposed Agency action) as the basis for the requested changes to a 
regulation. No such information was provided in the petition specific 
to this provision. Instead, Petitioners simply provide a general 
assertion that the provision is an ``arbitrary and unreasonable basis 
on which to decide whether the material is, in fact, being discarded or 
legitimately used as fuel.'' \15\ In the future, if a member of the 
public were to petition the EPA to reconsider the specific requirements 
in 40 CFR 241.4(a)(7)(ii) beyond the ``designed to burn'' provision, 
the EPA would develop a separate regulatory action that considers all 
possible regulatory options for this categorical non-waste 
determination, including the option of sunsetting the provision at 40 
CFR 241.4(a)(7)(ii) and leaving the requirements of 40 CFR 
241.4(a)(7)(i) in place, including the ``designed to burn'' criteria.
---------------------------------------------------------------------------

    \14\ AF&PA et al., Petition for Rulemaking to Amend the 
Legitimacy Criteria in 40 CFR part 241,--The Categorical Non-Waste 
Fuels Classification Criteria for Creosote Treated Railroad Ties and 
Other Treated Railroads Ties, and the Definition of Paper Recycling 
Residuals, December 7, 2018, page 16.
    \15\ AF&PA et al., Petition for Rulemaking to Amend the 
Legitimacy Criteria in 40 CFR part 241,--The Categorical Non-Waste 
Fuels Classification Criteria for Creosote Treated Railroad Ties and 
Other Treated Railroads Ties, and the Definition of Paper Recycling 
Residuals, December 7, 2018, page 16.
---------------------------------------------------------------------------

    However, this provision does demonstrate that the EPA can and has 
used the Agency's authority to consider ``other relevant factors'' in 
making a categorical non-waste fuel determination in cases where one of 
the legitimacy criteria is not met (see 40 CFR 241.4(b)(5)(ii)). It is 
important to recognize that the provisions of 40 CFR 241.4(a)(7)(ii) 
were proposed, based on the information available to the Agency at the 
time, to apply to boilers that were existing at the time the rule was 
promulgated to avoid penalizing the units originally designed to burn 
both biomass and fuel oil that switched to cleaner-burning fuel.\16\ 
Facilities constructed after that point would fall under the main 
provision found at 40 CFR 241.4(a)(7)(i) and would be able to take the 
existing regulations under consideration when deciding their 
operations. Thus, the conditions imposed on CTRT combusted in natural 
gas-fired units under 40 CFR 241.4(a)(7)(ii) are part of the relevant 
factors the EPA used to determine whether discard has occurred (see 81 
FR 6724-25, February 8, 2016).
---------------------------------------------------------------------------

    \16\ 81 FR 6724, February 8, 2016.
---------------------------------------------------------------------------

    Commenters claim that the environmental implications of not 
combusting CTRT, such as a potential increase in landfilling of CTRT 
and subsequent increase in greenhouse gas emission from the landfilled 
CTRT, obligate the EPA to withdraw designed to burn criteria from the 
categorical non-waste listing for CTRT due to ``other relevant 
factors.'' However, any ``other relevant factors'' considered in 
weighing a categorical non-waste listing must be relevant to the core 
question of whether the material is a solid waste when combusted. Some 
commenters propose looking to greenhouse gas emissions and landfill 
capacity as ``other relevant factors,'' but neither of these topics 
dictate whether the particular material in question is combusted as a 
waste; therefore, both considerations are outside the scope of this 
Petition Denial. The ``other relevant factors'' must still be applied 
in the context of determining whether a material is a waste or not. 
Ignoring designed to burn and other criteria would violate the 
fundamental principles of solid waste identification legitimacy 
criteria codified in the NHSM regulations and upheld by the D.C. 
Circuit Court, as noted at 87 FR 4536, 4542 (January 28, 2022). The 
extent to which a particular disposal practice of NHSM does or does not 
release greenhouse gases or consume landfill capacity does not impact 
whether the NHSM is discarded when combusted.
    The petitioners' comments also cite two examples of NHSMs--
resinated wood and coal refuse--that do not have designed to burn and 
existing boiler conditions associated with the categorical 
determination (see 40 CFR 241.4(a)(2) and (3)). The EPA has responded 
to a similar comment on the 2016 NHSM rule (see 81 FR 6731, February 8, 
2016), noting how, unlike CTRT, resinated wood's use as a fuel was 
integrated into the production process and that resinated wood 
production facilities were specifically designed to utilize the 
material for its fuel value (for more, see section III.A.3 (above) and 
76 FR 15500, March 21, 2011). As for coal refuse, data available 
suggest that this material is used in a small selection of coal refuse 
plants and as a secondary fuel at some additional bituminous coal 
combusting electric power plants (76 FR 80486, December 23, 2011). 
Further, the coal refuse is limited to legacy pile coal, which are 
processed in the same manner as currently generated coal refuse (a 
traditional fuel) and exhibit similar contaminant content. These 
situations

[[Page 71769]]

are very dissimilar to the case of CTRT combusted in a biomass boiler 
that would otherwise burn clean biomass because CTRT contain 
contaminants (in particular, PAHs) at levels multiple magnitudes higher 
than clean biomass (81 FR 6717, February 8, 2016).\17\ Thus, both these 
categorical non-waste determinations take into account the specific 
types of materials and combustion units involved and the reasoning 
cannot be extrapolated to all combustion units that might burn CTRT, 
absent the designed to burn criteria.
---------------------------------------------------------------------------

    \17\ For more information, see the Summary of Public Comments 
and Responses for the Proposed Response to the Petition to Revise 
the Non-Hazardous Secondary Material Standard, located in the docket 
EPA-HQ-OLEM-2020-0550.
---------------------------------------------------------------------------

    The designed to burn criterion is fundamental to the NHSM program 
since it is the primary mechanism for identifying which traditional 
fuel should be used as the basis of determining whether contaminant 
levels in the NHSM are comparable to or less than the traditional 
fuel(s) being replaced. Without the designed to burn criterion, CTRT 
could be combusted in any biomass-only boiler, including biomass 
boilers that are area sources under the CAA. These boilers would likely 
have higher HAP emissions when burning CTRT rather than biomass because 
these contaminants are present in greater concentrations in CTRT as 
generated. As previously noted, emission standards for dioxins, 
SO2, NOX, etc. for non-major sources are 
addressed under the CAA section 129 standards but are not addressed by 
area source boiler standards under CAA section 112 which require only 
tune-ups. The Agency is therefore denying petitioners' request 
regarding the designed to burn criterion. See section III.A above for a 
discussion on the contaminant comparison criterion.

C. Preamble Discussion of Storage Times for Railroad Ties

1. Petitioners' Request
    In addition to the requested regulatory changes, the petition 
raised an issue related to railroad tie storage timeframes as it 
impacts NHSM eligibility as discussed in the 2016 NHSM rule. In the 
preamble to that rule, the EPA discussed its presumption that storage 
of CTRT for long periods of time (e.g., a year or longer) without an 
end-use determination is not ``reasonable,'' and indicates that the 
material has been discarded. Petitioners interpreted this preamble 
language to establish a bright-line limit of one year for CTRT 
accumulation in the railroad right-of-way, and asserted that this 
perceived time limit is incompatible with the realities of railroad 
operations. That is, unlike discrete facilities from which valuable 
secondary materials are easily reclaimed, the railroad right-of-way 
extends over thousands of miles across the United States. Petitioners 
said that many locations where CTRT are removed are not readily 
accessible except by rail, and tie pickup interrupts freight and 
passenger train service and competes with safety[hyphen]related 
operations such as track maintenance and inspection. Train service and 
safety are regulated by the Surface Transportation Board and Federal 
Railroad Administration, respectively. Petitioners indicated that, due 
in part to those agencies' requirements, service and safety must take 
precedence over tie recovery. Petitioners asserted that these 
challenges make it unrealistic to collect used CTRT within one year of 
removal from service--but for reasons completely unrelated to the 
determination of whether CTRT are managed as a ``valuable commodity'' 
under the NHSM framework. Petitioners also noted that the EPA has 
recognized that ``the reasonable timeframe for storage may vary by 
industry'' (81 FR 6725, February 8, 2016). In the context of railroad 
tie management, petitioners asserted that three or more years is a 
reasonable timeframe for storage of removed CTRT in the right-of-way.
2. Public Comment
    Comments relating to the perceived one-year limit on CTRT 
accumulation in the right-of-way largely reiterated the arguments 
presented in the original petition.
    One comment argued that the economic value of removed CTRT 
indicates that the CTRT are not discarded. This commenter claimed that 
the sale or transfer of CTRT to a third party invalidates claims of 
discard, even if final disposition and party of sale have not been 
determined prior to removal. Thus, they claimed, accumulated CTRT are 
valuable and therefore not discarded under the plain language meaning 
of the word.
    Likewise, multiple commenters argued that railroad operational 
realities make the perceived one-year storage time limit infeasible for 
safety and logistical reasons. Commenters claimed that a one-year time 
limit for CTRT in the right-of-way would be unworkable due to remote 
rail locations and prioritization of safety requirements and 
maintenance activities over removal of accumulated CTRT.
    Finally, one commenter interpreted the EPA's preamble language from 
the 2016 NHSM rule to indicate that CTRT cannot be considered discarded 
until at least one year after removal from service. Their comment 
claimed that the lack of an explicit statement that CTRT are discarded 
immediately upon removal in the 2016 rule indicates that the EPA cannot 
now reasonably conclude that discard may occur sometime less than one 
year after tie removal.
3. EPA Response
    Storage time of unprocessed CTRT in the right-of-way has little 
impact for the purposes of determining whether the CTRT can qualify as 
a non-waste fuel under the Federal NHSM regulations. The EPA believes 
that petitioners' recurring comments surrounding storage times and 
discard originates from a misunderstanding of the 2016 rule's preamble 
language. Therefore, this section of the preamble--which relies upon 
the rationale provided in the 2016 rule--explains why the EPA is 
denying petitioners' three-year fixed storage timeframe consideration 
and addresses petitioners' misunderstanding of this issue by 
elaborating how and why accumulation timeframes in the right-of-way do 
not affect CTRT's eligibility to be combusted as non-waste fuel under 
the NHSM program.
    First and foremost, qualification of CTRT as a non-waste fuel under 
the categorical non-waste determination at 40 CFR 241.4(a)(7) does not 
consider storage times. Granted, when the EPA considers a petition for 
a categorical non-waste listing under 40 CFR 241.4(b), reasonable 
storage timeframes are required as a component of the ``managed as a 
valuable commodity'' legitimacy criterion. However, once the 
determination has been made that the petition for a non-waste 
categorical listing meets this requirement, future demonstration of 
those reasonable storage timeframes is not required. Indeed, this is a 
major incentive for requesting a categorical non-waste fuel 
determination; qualifying operators that meet the provisions of the 
categorical listing (in this case, at 40 CFR 241.4(a)(7)) enjoy 
streamlined management (e.g., do not need to make a site-specific 
demonstration that the NHSM meets the legitimacy criteria) because it 
has already been demonstrated--through the process of establishing the 
categorical determination--that the NHSM in question meets the program 
requirements. Thus, entities managing CTRT under the categorical 
listing are not required to document the CTRT's storage timeframes and 
are not limited by a bright-line restriction of one year of 
accumulation in the right-of-way. (It

[[Page 71770]]

should be noted, however, that extended lengths of storage of CTRT in 
the right-of-way could constitute disposal under State solid waste 
regulations, making the CTRT subject to State solid waste management 
requirements.)
    Should an operator wish to combust CTRT as a non-waste fuel under 
the NHSM program outside the confines of the categorical determination 
at 40 CFR 241.4(a)(7), storage time for CTRT in the right-of-way is 
still unlikely to have a meaningful impact on the material's 
eligibility. In this scenario, the operator could choose to employ the 
self-determination process outlined in 40 CFR 241.3(b)(4) for NHSM that 
are discarded but subsequently processed and meet the legitimacy 
criteria at 40 CFR 241.3(d)(1). As noted in the February 8, 2016 rule's 
preamble, the amount of time for industry to determine value and end 
use of CTRT (whether sent to a landfill, used as fuel, or another non-
fuel purpose) sometimes exceeds one year (81 FR 6725). Generally 
speaking, however, long periods of time without determining end use can 
be indicative of discard, though there is no bright-line time period 
which triggers a discard determination. The fact that CTRT removed from 
service sometimes sit for extended periods--regardless of whether that 
period is more than or less than a year--indicates that they should be 
viewed critically when determining discard status. Further, it is the 
EPA's understanding (according to the descriptions provided in both the 
petition and public comments) that it is standard industry practice to 
transfer CTRT to a reclaimer or other third party. These CTRT would be 
considered discarded until processed into a non-waste fuel, since NHSMs 
that are transferred off-site for reclamation and reuse as a fuel are 
considered discarded and must be processed and meet the legitimacy 
criteria. The assertion that the CTRT are a valuable commodity in a 
robust market does not change the fact that the CTRT have been 
discarded. NHSMs may have value in the marketplace and still be solid 
wastes until processed.
    It should be noted that discarded NHSM may be subject to Tribal, 
State, and local solid waste requirements, regardless of their intended 
future use as a non-waste fuel under the Federal NHSM program. Though 
the designation of discard may be functionally irrelevant for CTRT that 
are subsequently processed and verified to meet the legitimacy criteria 
for non-waste fuels, CTRT that are determined to be solid waste would 
still be subject to all relevant solid waste regulations. Indeed, the 
EPA explicitly addressed this issue at 40 CFR 241.3(b)(4), which states 
that until the discarded non-hazardous secondary material is processed 
to produce a non-waste fuel or ingredient, the discarded non-hazardous 
secondary material is considered a solid waste and would be subject to 
all appropriate Federal, State, and local requirements.
    Thus, a designation of discard does not preclude using the NHSM as 
a non-waste fuel, so long as the processing requirement and legitimacy 
criteria are met. Crucially, the relevant regulations at 40 CFR 
241.3(b)(4) go on to stipulate that the legitimacy criteria apply after 
the non-hazardous secondary material is processed to produce a fuel or 
ingredient product. Consideration of reasonable timeframes would 
therefore look to the period of storage following processing (e.g., 
grinding CTRT to resize the material and removing metal contaminants 
such as rail spikes), which the EPA understands to usually be short. 
Moreover, the EPA has not established a bright-line limit on reasonable 
storage times and has previously explicitly stated that what 
constitutes a reasonable timeframe for storage will vary by industry 
(see, e.g., 76 FR 15520, March 21, 2011). Accordingly, CTRT could be 
combusted as a non-waste fuel after being stored for more than one 
year, so long as storage of the processed CTRT is limited to reasonable 
timeframes.
    Thus, the EPA believes that previous dialogue between the Agency, 
petitioners, and commenters on timeframes for storage of CTRT in the 
right-of-way has little, if any, practical effect on the combustion of 
CTRT as non-waste fuel under the Federal NHSM program. Accordingly, the 
EPA is denying petitioners' request to establish a rigid three-year 
timeframe for rail tie storage in the right-of-way, and instead the 
Agency will maintain the existing standard to allow for flexibility and 
has provided the preceding explanation in an attempt to resolve 
petitioners' misunderstanding.
    Finally, it should be noted that other laws or regulations may 
still apply to CTRT placed in the right of way. CTRT stored in the 
right of way could be considered discarded and would in such cases be 
subject to all relevant Federal, Tribal, State, and local solid waste 
requirements. These regulations may vary by location, and State solid 
waste designations are not required to match those of the Federal 
rules. Broader issues associated with the accumulation of CTRT in the 
right of way would fall under the jurisdiction of these regulations. 
Additionally, some States (e.g., California, New York) have specific 
laws or regulations for creosote and/or products treated with creosote.

D. Request To Amend the Definition of ``Paper Recycling Residuals''

1. Petitioners' Request
    Petitioners also requested that the EPA revise the definition of 
``paper recycling residuals'' (PRR) to amend the description and remove 
the definitional condition that PRR that ``contain more than small 
amounts of non-fiber materials . . . are not paper recycling 
residuals'' (40 CFR 241.2, emphasis added). Petitioners believed that 
this condition is overly vague and directly at odds with the Court's 
decision in API.
    Petitioners requested that the second sentence in the definition 
precluding materials that contain ``more than small amounts of non-
fiber materials'' from qualifying as PRR should be removed. They argued 
that this condition suggests that the list of non-fiber materials 
identified in the definition are somehow viewed as contaminants in PRR. 
But, as discussed above, petitioners argue that in vacating the 
contaminant comparison criterion in the DSW rule, the D.C. Circuit made 
clear that the mere presence of some contaminants in a material 
destined for legitimate recycling is not the basis for finding that the 
material has been ``discarded'' and thus subject to regulation as a 
solid waste.
    In addition to arguing that this condition is inconsistent with the 
D.C. Circuit's holding in API, the petitioners believe that the ``small 
amount'' limitation is overly vague. While members of the regulated 
community affirm that they have used good faith efforts in determining 
that PRR burned as fuel meet this condition, they also note that ``a 
statute which either forbids or requires the doing of an act so vague 
that men of common intelligence must necessarily guess at its meaning 
and differ as to its applications, violates the first essential of due 
process of law.'' FCC v. Fox Television Stations, Inc., 567 U.S. at 
239, 253 (2012) (internal citation omitted). According to petitioners, 
the ``small amount'' criterion in the definition of PRR falls squarely 
within this ``impermissibly vague'' infirmity and should be removed 
from the definition to help ensure that ``those enforcing the law do 
not act in an arbitrary or discriminatory way.'' FCC, 567 U.S. at 253 
(internal citation omitted).
    Furthermore, petitioners argue that the current definition 
describing PRR as ``composed primarily of wet strength

[[Page 71771]]

and short wood fibers'' is not correct, as the re-pulping of recovered 
fibers can result in a variety of strengths and sizes of fibers in PRR, 
so the current limitation to ``wet strength and short wood fibers'' is 
unnecessarily restrictive. Some residuals from recycling paper, 
paperboard and corrugated containers are composed of fibers other than 
wet strength fibers or short-wood fibers, but nonetheless cannot be 
used to make new paper or paper products and therefore are burned for 
their energy value.
    In January 2022, the EPA proposed to deny this request, and in the 
same notice proposed an amended definition of PRR. This new definition 
replaced the less-specific ``small amounts'' language restricting PRR 
non-fiber content with more specific language that would have limited 
the amount of non-fiber content to 2% or less, by weight.\18\ The 
revised definition in the proposed rule also adopted descriptive 
changes requested in the petition to more accurately reflect the nature 
of PRR.
---------------------------------------------------------------------------

    \18\ This standard was derived from the 2021 ISRI Scrap 
Specifications Circular, which sets an industry standard for 
``furnish'' i.e., the paper materials being fed into the paper 
recycling process. The Circular sets a standard allowing no more 
than 2% non-fiber content in furnish.
---------------------------------------------------------------------------

2. Public Comment on EPA's Proposed Definition of PRR
    One commenter argued that a non-fiber limit for paper recycling 
residuals was not necessary, reiterating a similar assertion presented 
in the original petition. The commenter stated that environmental and 
health risks from burning PRR containing non-fiber material would 
already be covered under CAA permit conditions, and thus adding a non-
fiber limit to PRR would be redundant.
    Two commenters stated that the EPA's proposed change to the 
definition of paper recycling residuals incorporating a limit of 2% by 
weight of non-fiber materials was an inappropriate application of an 
Institute of Scrap Recycling Industries (ISRI) industry standard. The 
commenters explained that the 2% ISRI figure referred to the limit on 
prohibitive materials for ``furnish'' (i.e., incoming mixed paper to be 
recycled), not to the outgoing paper recycling residuals created by the 
recycling process. Applying this standard to paper recycling residuals 
would therefore not be an appropriate application of the standard.
    Several commenters also argued that any numeric limit on non-fiber 
material would be difficult for facilities to meet. This is due, in 
part, to the lack of a standard test method for measuring the non-fiber 
content of PRR. Furthermore, one commenter noted that the 2% numeric 
standard itself could not have been met under typical conditions: PRR 
typically have more than 2% non-fiber content, albeit this amount also 
varies by mill.
    Rather than the 2% by weight threshold for non-fiber materials 
proposed, one commenter suggested that a meaningful heating value would 
be a more appropriate standard. Commenters argued that heating value is 
central in distinguishing an NHSM that is combusted as a legitimate 
fuel from an NHSM combusted for discard, and a heating value standard 
would thus be a more appropriate standard for managing the concern that 
non-fiber material does not provide for energy recovery. The commenter 
also noted, contrary to the EPA's statement in the proposed rule, that 
non-fiber materials like waxes, adhesives, and plastics actually raise 
the heating value of PRR. This means that PRR with higher amounts of 
non-fiber material may have higher heating values. The commenter then 
suggested that the definition of PRR should be modified to state that 
PRR may be considered a non-waste fuel if the meaningful heating value 
of the materials is preserved. As a specific numerical alternative, the 
commenter also suggested that a value of greater than or equal to 6,300 
Btu/lb on a dry basis, either annually or over a long-term average 
basis, would be an appropriate heating value standard. Commentors set 
this value using AF&PA member data and EPA Boiler MACT database data. 
Commenters stated that the value was chosen to be at the low end of the 
range of data available, rather than the midpoint of the range, to 
ensure that the numeric standard would be attainable.
    One commenter agreed with the EPA that the current definition of 
PRR in 40 CFR 241.2 (``the secondary material generated from the 
recycling of paper, paperboard and corrugated containers composed 
primarily of wet strength and short wood fibers'') was too limiting and 
should be changed. However, the commenter argued that the EPA's 
proposed change to ``the secondary material generated from the 
recycling of paper, paperboard and corrugated containers composed 
primarily of fibers that are too small or weak to be used to make new 
paper and paperboard products'' (emphasis added) was also too limiting. 
The commenter suggested that the definition be rewritten to read ``the 
secondary material generated from the recycling of paper, paperboard 
and corrugated containers that includes fibers generally too small or 
weak to be used to make new paper and paperboard products'' (emphasis 
added). The commenter argued that, while mill equipment extracts most 
of the fiber that can be made into paper and paperboard, some longer 
and stronger fibers can evade the process and end up in the PRR. The 
commenter also noted that mills have an economic incentive to capture 
the valuable fibers to make them into new products instead of 
combusting these fibers for energy recovery.
3. EPA Response
    The EPA disagrees with the petitioner's original arguments, 
reiterated in comments, for removing language limiting the amount of 
non-fiber materials in PRR burned as a non-waste fuel. The reasoning 
for not including the non-fiber materials as PRR was not focused on 
discard due to contaminants present, but rather, discard due to lack of 
heating value and not contributing to energy recovery. In the April 14, 
2014 proposed rule, the EPA requested, but did not receive, information 
regarding the percent of non-fiber materials commonly present in PRR 
and their heating value (79 FR 21017). Lacking information to the 
contrary, the Agency determined that PRR with higher amounts of non-
fiber materials would likely have a lower heating value. Combustion of 
materials with low heating values is typically considered discard. PRR 
already have a relatively low heating value (as fired, average 3,700 
Btu/lb on a wet basis),\19\ so the Agency reasoned that large amounts 
of non-fiber materials would lower the heating value of the material, 
further raising the question of burning as discard.
---------------------------------------------------------------------------

    \19\ 81 FR 6716, February 8, 2016.
---------------------------------------------------------------------------

    However, in the January 2022 proposed rule, the EPA sought to set a 
numerical threshold for non-fiber materials content, rather than 
prohibit them entirely or rely on the term ``small amounts.'' As 
indicated above, information on such threshold amounts of non-fiber 
materials was not received from industry prior to publication of the 
January 2022 proposed rule, and a review of current scientific studies 
also did not reveal specific amounts. As an alternative, although not 
directly used for PRR as fuels, the Scrap Specifications Circular 
(2021); Institute of Scrap Recycling Industries Guidelines for Paper 
Stock identifies a 2% prohibitive material content limit for mixed 
paper stock used for re-

[[Page 71772]]

pulping paper.\20\ In the circular, prohibitive material is material 
which by its presence, in excess of the amount allowed, will make the 
furnish unusable as the grade specified, as well as any materials that 
may be damaging to equipment. In evaluating the grades of paper 
identified in the circular, the maximum allowance of prohibitive 
materials in mixed paper (which consists of all paper and paperboard of 
various qualities not limited to the type of fiber content) is 2%. The 
Agency previously concluded that this prohibitive material measure 
could provide an analogous measure for non-fiber materials contained 
within PRR. Accordingly, the EPA proposed to set a maximum non-fiber 
content standard for PRR of 2% by weight.
---------------------------------------------------------------------------

    \20\ ISRI Scrap Specifications Circular (2021), page 34; http://www.scrap2.org/specs/.
---------------------------------------------------------------------------

    However, information provided to the Agency in comments on the 
January 2022 proposed rule provided new information previously 
unavailable to the Agency. Commenters' data indicates that many of the 
constituents of non-fiber content in PRR are more likely to raise the 
heating value of PRR. Commenters also argued that the ISRI standard for 
non-fiber content of paper recycling inputs would be inappropriate to 
apply to material outputs from the paper recycling process and claimed 
that the difficulty of complying with the proposed standard could lead 
paper recycling mills to dispose of PRR in landfills instead.
    Accordingly, the EPA is replacing the proposed 2% by weight 
standard with a performance-based threshold to address the heating 
value concerns and associated consideration of potential discard. 
Requiring PRR combusted under the categorical non-waste listing at 40 
CFR 241.4(a)(6) to have a minimum heating value is intended to prevent 
residuals with poor heating value from being used as a fuel in a 
combustion unit, as this use case would constitute disposal rather than 
use as a legitimate fuel.
    The Agency maintains that residuals from processes such as mixed 
paper waste recycling with significant quantities of non-fiber 
materials (e.g., clays, starches) could be considered to be a solid 
waste fuel when combusted when those materials lack meaningful heating 
value.\21\ Under the amended definition of PRR, the determination of 
non-waste fuel status would depend more directly on the heating value 
of the material stream in question, but could still be deemed waste if 
non-fiber content drives down heating value below the minimum 
threshold.\22\
---------------------------------------------------------------------------

    \21\ 81 FR 6718, February 8, 2016.
    \22\ The EPA recognizes that plastic films, foam and waxes could 
increase the heating value of a recycling residual stream. While no 
upper boundary on the heat content of PRR is being established, the 
EPA notes that the definition of PRR including the term ``composed 
primarily of fibers'' would prevent application of the PRR 
definition to materials that are composed mostly of plastics, foams 
and waxes removed during the recycling of recovered paper, 
paperboard and corrugated containers.
---------------------------------------------------------------------------

    This unique heating value threshold for PRR is appropriate and 
consistent with previous Agency statements regarding the use of PRR as 
non-waste fuel for energy recovery. The EPA maintains that unique 
heating value expectations are appropriate for PRR because the boilers 
that combust this material are specifically designed to cost-
effectively recover energy from it (see 79 FR 21018-9, April 14, 2014). 
Data received in comments corroborate that the selected threshold would 
ensure low heating value PRR are not discarded under the guise of fuel 
combustion, while also being achievable for the limited number of mills 
that currently combust this material.
    Furthermore, the definition of PRR as ``composed of primarily wet 
strength and short wood fibers'' was based on previously submitted 
industry information (81 FR 6721, February 8, 2016). However, based on 
the information submitted in this petition, the Agency agrees that the 
reference to ``primarily wet strength and short wood fibers'' is too 
limiting and inadvertently excludes fibers of different strength and 
size that may provide heating value. Nevertheless, the commenter's 
suggestion to further change the EPA's revised language in the January 
28, 2022, proposal from ``composed primarily of fibers that are too 
small or weak to be used to make new paper and paperboard products'' 
(emphasis added) to ``that includes fibers generally too small or weak 
to be used to make new paper and paperboard products'' (emphasis added) 
is not an acceptable change. This commenter-proposed language would not 
be a specific enough definition to provide assurance that non-fiber 
material in PRR would be minimized when PRR are combusted as fuel. 
Commenters argue that the EPA's proposed definition is ``unnecessarily 
limiting,'' but a definition that upholds the integrity of PRR is 
necessary to ensure that non-fiber material is not overloaded and 
labelled as PRR, which could show an indication of discard rather than 
use as a legitimate fuel. Therefore, we are finalizing the proposal to 
change the language to ``fibers that are too small or weak to be used 
to make new paper and paperboard products.''
    Accordingly, the Agency finalizes the revised definition of PRR as 
set out in the amendatory section at the end of this document.

IV. Effect of This Action on Other Programs

    The primary action of this final rulemaking is to revise the 
definition of Paper Recycling Residuals in the NHSM regulations at 40 
CFR 241.2. Accordingly, this action affects other programs only insofar 
as they rely on the definitions outlined in part 241. In particular, 
Clean Air Act permitting regulations refer to the RCRA definition of 
solid waste in determining whether a combustion unit is a solid waste 
incinerator or an industrial furnace for permitting purposes. Thus, the 
changes to the definition of PRR implemented by this rule apply to CAA 
permitting nationwide (i.e., do not depend upon State adoption).
    In order to qualify as a categorical non-waste fuel under 40 CFR 
241.4(a) and thereby be combusted in a unit not permitted to incinerate 
solid waste under the CAA, a material would have to meet the relevant 
definition in 40 CFR 241.2 and fulfill any additional requirements 
listed in the relevant categorical non-waste listing at 241.4. 
Additionally, though the NHSM regulations do not include specific 
record-keeping requirements, the CAA regulations at 40 CFR 60.2175(v) 
(for new sources) or 40 CFR 60.2740(u) (for existing sources) require 
that units combusting materials designated as categorical non-waste 
fuels under the NHSM program must keep records demonstrating that the 
material is a listed non-waste fuel under 40 CFR 241.4(a). In order to 
fulfill that requirement, the material would have to meet the 
definition of the categorical non-waste (at Sec.  241.2) as well as any 
additional requirements included in the NHSM listing itself (at Sec.  
241.4(a)). Under the current RCRA and CAA regulations, as implemented 
through Title V permits, an operator combusting a material as a 
categorical non-waste fuel must show that the material meets the 
definition of the categorical non-waste listing they are claiming. 
Based on the revised definition of Paper Recycling Residuals, the 
relevant CAA permitting authority may require the operator to document 
the fact that the PRR's heating value is above the definitional 
threshold of 6,300 Btu/lb on a dry basis. Given the fact the operator 
must know fuel value of the PRR for proper operation of the boiler, 
such a potential permit condition is expected to have a negligible 
burden. The exact nature and frequency of the sampling

[[Page 71773]]

performed to document the fact that the PRR meet the revised definition 
in 40 CFR 241.2 will vary according to numerous site-specific factors 
and therefore is best left to the discretion of the relevant permitting 
authority. It should also be noted that the definition of PRR refers to 
``secondary material generated from the recycling of paper, paperboard 
and corrugated containers,'' so inclusion of materials that are not 
part of the usual paper, paperboard, or corrugated container recycling 
processes is definitionally disallowed.
    Beyond amending the definition of PRR, this action 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), February 8, 2016 (81 FR 6688) and 
February 7, 2018 (83 FR 5317). Refer to section VIII of the preamble to 
the March 21, 2011 NHSM final rule for the discussion on the effect of 
the NHSM rule on other programs.

V. State Authority

A. Relationship to State Programs

    This action and change to the definition of PRR 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 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 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.

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

    This action is definitional in nature, and any costs or benefits 
accrue to the corresponding Clean Air Act rules. In accordance with the 
Office of Management and Budget (OMB) Circular A-4 requirement that the 
EPA analyze the costs and benefits of regulations, the EPA prepared a 
regulatory impact analysis document for this action that examines the 
scope of indirect impacts.

VII. Children's Environmental Health

    Executive Order 13045 requires that economically significant rules 
that may impact children's environmental health are evaluated against 
possible alternatives. Though this rule is not economically significant 
and its impacts are not expected to affect children's environmental 
health, the Agency still considers potential environmental health 
effects on children under EPA's 2021 Policy on Children's Health.
    Children's environmental health refers to the effect of 
environmental exposure during early life: from conception, infancy, 
early childhood, and adolescence through until 21 years of age. EPA's 
policy is informed by the scientific understanding that children may be 
at greater risk to environmental contaminants than adults due to 
differences in behavior and biology and that the effects of early life 
exposures may also arise in adulthood or in later generations.
    However, EPA does not believe the environmental health or safety 
risks addressed by this action present a risk to children. Because this 
rule does not change existing conditions, no environmental health 
impacts are expected to arise from this rulemaking. The change to the 
definition of PRR would not affect the overall risk to anyone, 
including children, posed by boiler emissions. This is because the 
overall level of emissions, or the emissions mix from boilers, are not 
expected to change significantly because of the change in definition of 
PRR.
    In the event of any unforeseen changes to air emissions, the EPA 
does not believe this change would disproportionately impact children. 
A demographic analysis of the populace living near major source boilers 
found that the percentage of the population in these areas that are 
children is generally the same as the national average (see 
``Assessment of the Potential Costs, Benefits, and Other Impacts for 
the Final Rule'' in the docket). Further, boilers at paper recycling 
mills that combust PRR as non-waste fuel remain subject to the 
appropriate standards established under CAA section 112. Thus, even in 
the event of a change in air emissions due to this rule, any potential 
health impacts would not be expected to disproportionately affect 
children. Additionally, this rule is definitional in nature, so any 
considerations of risk related to combustion units' CAA permits should 
be accounted for in the relevant CAA rulemakings that established those 
permitting programs.

VIII. 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 14094: Modernizing Regulatory Review

    This action is a ``significant regulatory action'' as defined in 
Executive Order 12866, as amended by Executive Order 14094, because it 
may raise legal or policy issues for which centralized review would 
meaningfully further the President's priorities or the principles set 
forth in the Executive Order. Accordingly, EPA submitted this action to 
OMB for Executive Order 12866 review. Documentation of any changes made 
in response to the Executive Order 12866 review is available in the 
docket. The EPA prepared an economic analysis of the potential impacts 
associated with this action. This analysis, ``Assessment of the 
Potential Costs, Benefits, and Other Impacts for the Final Rule'' is 
also available in the docket.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA as this action only changes the definition of PRR for the 
purposes of the NHSM regulations. There are no new recordkeeping or 
reporting requirements with this definitional change. OMB has 
previously approved the information collection activities contained in 
the existing regulations and has assigned OMB control number 2050-0205.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the EPA concludes that the impact of concern 
for this rule is any significant adverse economic impact on small 
entities and that the agency is certifying that this rule will not have 
a significant economic impact on a substantial number of small entities

[[Page 71774]]

because the rule has no net burden on the small entities subject to the 
rule. Because the petition denial maintains the status quo, there is no 
impact to any entity, including to any small entity, from the petition 
denial. In addition, the revision to the definition of PRR will reduce 
regulatory uncertainty associated with these materials and help 
increase management efficiency for all pulp and paper mills with units 
that combust PRR, including mills that meet the definition of small 
entity without requiring a change in operations. We have therefore 
concluded that this action has no net burden on the small entities 
subject to the rule.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The costs involved in this action are imposed only 
by participation in a voluntary Federal program. 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.

E. Executive Order 13132: Federalism

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

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

    This action does not have Tribal implications as specified in 
Executive Order 13175. It will neither impose substantial direct 
compliance costs on Tribal governments, nor preempt Tribal law. 
Potential aspects associated with the categorical non-waste fuel 
determinations under this 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.

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

    Executive Order 13045 directs Federal agencies to include an 
evaluation of the health and safety effects of the planned regulation 
on children in Federal health and safety standards and explain why the 
regulation is preferable to potentially effective and reasonably 
feasible alternatives. This action is not subject to Executive Order 
13045 because it is not a significant regulatory action under section 
3(f)(1) of 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. The change to the 
definition of PRR would not affect the overall risk to children posed 
by boiler emissions. This is because the overall level of emissions, or 
the emissions mix from boilers, are not expected to change 
significantly because of the change in definition of PRR, and because 
boilers at paper recycling mills that combust PRR as non-waste fuel 
remain subject to the appropriate standards established under CAA 
section 112.
    However, the EPA's Policy on Children's Health applies to this 
action. Information on how the Policy was applied is available under 
``Children's Environmental Health'' in Section VII of this preamble.

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

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. The selected NHSMs affected by this 
proposed action would not be generated in quantities sufficient to 
significantly (adversely or positively) impact the supply, 
distribution, or use of energy at the national level. Even if 100% of 
the available PRR were converted to energy (an unlikely best-case 
scenario), that would translate to a potential increase of only 0.002% 
to 0.003% in the national energy supply, and these effects would be 
localized at recycling paper mills.

I. National Technology Transfer and Advancement Act (NTTAA)

    This action involves technical standards. Therefore, the EPA 
conducted a search to identify potentially applicable voluntary 
consensus standards. However, the Agency identified no such standards 
and none were brought to its attention in comments. Therefore, the EPA 
has decided to use the 6,300 Btu/lb dry basis minimum standard for PRR 
heating value.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations (people of color and/or indigenous 
peoples) and low-income populations.
    The EPA believes that the human health or environmental conditions 
that exist prior to this action result in or have the potential to 
result in disproportionate and adverse human health or environmental 
effects on communities with environmental justice concerns. Both 
landfills and boilers are generally more likely to be located in 
disadvantaged communities, so transporting and managing NHSMs (whether 
for disposal at a landfill or combustion as a non-waste fuel in a 
boiler) is likely to have environmental health effects on these 
communities.\23\
---------------------------------------------------------------------------

    \23\ For more information on the environmental justice analysis, 
see the March 21, 2011 NHSM final rule (76 FR 15455) and 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, docket number 
EPA-HQ-RCRA-2008-0329-1834.
---------------------------------------------------------------------------

    The EPA believes that this action is not likely to change existing 
disproportionate and adverse effects on communities with environmental 
justice concerns. This is because the overall level of emissions, or 
the emissions mix from boilers, are not expected to change 
significantly because of the change in definition of PRR, and because 
boilers at paper recycling mills that combust PRR as non-waste fuel 
remain subject to the protective standards established under CAA 
section 112. Further, this RCRA action alone does not directly require 
any change in the management of these materials. Thus, any potential 
materials management changes stimulated by this action, and 
corresponding impacts to minority and low-income communities, are 
considered to be indirect impacts, and would only occur in conjunction 
with the corresponding CAA rules.

[[Page 71775]]

    The information supporting this Executive Order review is contained 
in the docket as part of the Assessment of the Potential Costs, 
Benefits, and Other Impacts of the Final Rule.

K. 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 
Secondary Materials, Waste treatment and disposal.

Michael Regan,
Administrator.

    For the reasons set forth in the preamble, the EPA amends 40 CFR 
part 241 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 revising the definition of ``Paper 
recycling residuals'' to read as follows:


Sec.  241.2  Definitions.

* * * * *
    Paper recycling residuals means the secondary material generated 
from the recycling of paper, paperboard and corrugated containers 
composed primarily of fibers that are too small or weak to be used to 
make new paper and paperboard products. Secondary material from paper 
recycling processes with a heating value below 6,300 Btu/lb on a dry 
basis due to excessive non-fiber material content (including 
polystyrene foam, polyethylene film, other plastics, waxes, adhesives, 
dyes and inks, clays, starches and other coating and filler material) 
are not paper recycling residuals for the purposes of this definition.
* * * * *
[FR Doc. 2023-22878 Filed 10-17-23; 8:45 am]
BILLING CODE 6560-50-P