[Federal Register Volume 83, Number 26 (Wednesday, February 7, 2018)]
[Rules and Regulations]
[Pages 5317-5340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02337]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 241
[EPA-HQ-OLEM-2016-0248; FRL-9969-80-OLEM]
RIN 2050-AG83
Additions to List of Categorical Non-Waste Fuels: Other Treated
Railroad Ties
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing
amendments to the Non-Hazardous Secondary Materials regulations, which
generally established standards and procedures for identifying whether
non-hazardous secondary materials are solid wastes when used as fuels
or ingredients in combustion units. In February 2013, the EPA listed
particular non-hazardous secondary materials as ``categorical non-waste
fuels'' provided certain conditions are met. This final rule adds the
following other treated railroad ties (OTRT) to the categorical non-
waste fuel list: Processed creosote-borate, copper naphthenate and
copper naphthenate-borate treated railroad ties, under certain
conditions depending on the chemical treatment.
DATES: This rule is effective February 7, 2018.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OLEM-2016-0248. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically at https://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA
West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday through Friday,
excluding legal holidays. The telephone number for the Public Reading
Room is (202) 566-1744, and the telephone number for the RCRA Docket is
(202) 566-0270.
FOR FURTHER INFORMATION CONTACT: George Faison, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, MC 5303P, Environmental Protection Agency, 1200 Pennsylvania
Ave. NW, Washington, DC 20460; telephone number: (703) 305-7652; email:
[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 Final Rule
B. What is the statutory authority for this final rule?
C. Does this action apply to me?
D. What is the purpose of this final rule?
E. Effective Date
II. Background
A. History of the NHSM Rulemakings
B. Background to This Final Rule
C. How will EPA make categorical non-waste determinations?
III. Comments on the Proposed Rule and Rationale for Final Decisions
A. Detailed Description of OTRTs
B. OTRTs Under Current NHSM Rules
C. Scope of the Final Categorical Non-Waste Listing for OTRTs
D. Rationale for Final Rule
E. Copper and Borates Literature Review and Other EPA Program
Summary
F. Summary of Comments Requested
G. Responses to Comments
IV. Effect of This Final Rule on Other Programs
V. State Authority
A. Relationship to State Programs
B. State Adoption of the Rulemaking
VI. Costs and Benefits
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
I. General Information
A. List of abbreviations and acronyms used in this final rule
AWPA American Wood Protection Association
Btu British thermal unit
C&D Construction and demolition
CAA Clean Air Act
CBI Confidential business information
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incinerator
CTRT Creosote-treated railroad ties
EPA U.S. Environmental Protection Agency
FR Federal Register
HAP Hazardous air pollutant
MACT Maximum achievable control technology
MDL Method detection limit
NAICS North American Industrial Classification System
ND Non-detect
NESHAP National emission standards for hazardous air pollutants
NHSM Non-hazardous secondary material
OMB Office of Management and Budget
OTRT Other Treated Railroad Ties
PAH Polycyclic aromatic hydrocarbons
ppm Parts per million
RCRA Resource Conservation and Recovery Act
RIN Regulatory information number
RL Reporting Limits
SBA Small Business Administration
SO2 Sulfur dioxide
SVOC Semi-volatile organic compound
TCLP Toxicity characteristic leaching procedure
UPL Upper prediction limit
U.S.C. United States Code
VOC Volatile organic compound
B. What is the statutory authority for this final rule?
The EPA is amending 40 CFR 241.4(a) to list additional non-
hazardous secondary materials (NHSMs) as
[[Page 5318]]
categorical non-waste fuels under the authority of sections 2002(a)(1)
and 1004(27) of the Resource Conservation and Recovery Act (RCRA), as
amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the
Clean Air Act (CAA) directs the EPA to establish standards for
Commercial and Industrial Solid Waste Incinerators (CISWI), which burn
solid waste. Section 129(g)(6) of the CAA provides that the term
``solid waste'' is to be established by the EPA under RCRA (42 U.S.C.
7429(g)(6)). Section 2002(a)(1) of RCRA authorizes the Agency to
promulgate regulations as are necessary to carry out its functions
under the Act. The statutory definition of ``solid waste'' is stated in
RCRA section 1004(27).
C. Does this action apply to me?
Categories and entities potentially affected by this action, either
directly or indirectly, include, but may not be limited to the
following:
Generators and Potential Users a of the New Materials To Be Added to the
List of Categorical
Non-Waste Fuels
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Primary Industry Category or Sub Category NAICS \b\
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Utilities............................................... 221
Site Preparation Contractors............................ 238910
Manufacturing........................................... 31, 32, 33
Wood Product Manufacturing.............................. 321
Sawmills................................................ 321113
Wood Preservation (includes crosstie creosote treating). 321114
Pulp, Paper, and Paper Products......................... 322
Cement manufacturing.................................... 32731
Railroads (includes line haul and short line)........... 482
Scenic and Sightseeing Transportation, Land (Includes: 487110
railroad, scenic and sightseeing)......................
Port and Harbor Operations (Used railroad ties)......... 488310
Landscaping Services.................................... 561730
Solid Waste Collection.................................. 562111
Solid Waste Landfill.................................... 562212
Solid Waste Combustors and Incinerators................. 562213
Marinas................................................. 713930
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\a\ Includes: Major Source Boilers, Area Source Boilers, and Solid Waste
Incinerators.
\b\ NAICS--North American Industrial Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities potentially impacted by this
action. This table lists examples of the types of entities of which EPA
is aware that could potentially be affected by this action. Other types
of entities not listed could also be affected. To determine whether
your facility, company, business, organization, etc., is affected by
this action, you should examine the applicability criteria in this
rule. If you have any questions regarding the applicability of this
action to a particular entity, consult the person listed in the FOR
FURTHER INFORMATION CONTACT section.
D. What is the purpose of this final rule?
The RCRA statute defines ``solid waste'' as ``any garbage, refuse,
sludge from a waste treatment plant, water supply treatment plant, or
air pollution control facility and other discarded material . . .
resulting from industrial, commercial, mining, and agricultural
operations, and from community activities.'' (RCRA section 1004(27)
(emphasis added)). The key concept is that of ``discard'' and, in fact,
this definition turns on the meaning of the phrase, ``other discarded
material,'' since this term encompasses all other examples provided in
the definition.
The meaning of ``solid waste,'' as defined under RCRA, is of
particular importance as it relates to section 129 of the CAA. If
material is a solid waste, under RCRA, a combustion unit burning it is
required to meet the CAA section 129 emission standards for solid waste
incineration units. If the material is not a solid waste, combustion
units are required to meet the CAA section 112 emission standards for
commercial, industrial, and institutional boilers, or if the combustion
unit is a cement kiln, the CAA 112 standards for Portland cement kilns.
Under CAA section 129, the term ``solid waste incineration unit'' is
defined, in pertinent part, to mean ``a distinct operating unit of any
facility which combusts any solid waste material from commercial or
industrial establishments.'' 42 U.S.C. 7429(g)(1). CAA section 129
further states that the term ``solid waste'' shall have the meaning
``established by the Administrator pursuant to the Solid Waste Disposal
Act.'' Id at 7429(g)(6). The Solid Waste Disposal Act, as amended, is
commonly referred to as the Resource Conservation and Recovery Act or
RCRA.
Regulations concerning NHSMs used as fuels or ingredients in
combustion units are codified in 40 CFR part 241.\1\ This action amends
the part 241 regulations by adding three NHSMs, summarized below, to
the list of categorical non-waste fuels codified in Sec. 241.4(a):
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\1\ See 40 CFR 241.2 for the definition of non-hazardous
secondary material.
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(1) Creosote-borate treated railroad ties, and mixtures of
creosote, borate and/or copper naphthenate treated railroad ties that
are processed and then combusted in:
(i) Units designed to burn both biomass and fuel oil as part of
normal operations and not solely as part of start-up or shut-down
operations, and
(ii) Units at major source pulp and paper mills or power producers
subject to 40 CFR part 63, subpart DDDDD, designed to burn biomass and
fuel oil as part of normal operations and not solely as part of start-
up or shut-down operations, but are modified in order to use natural
gas instead of fuel oil. The creosote-borate and mixed creosote, borate
and copper naphthenate treated railroad ties may continue to be
combusted as product fuel only if certain conditions are met, which are
intended to ensure that such railroad ties are not being discarded.
(iii) Units meeting requirements in (i) or (ii) that are also
designed to burn coal.
[[Page 5319]]
(2) Copper naphthenate treated railroad ties that are processed and
then combusted in units designed to burn biomass, biomass and fuel oil,
or biomass and coal.
(3) Copper naphthenate-borate treated railroad ties that are
processed and then combusted in units designed to burn biomass, biomass
and fuel oil, or biomass and coal.
E. Effective Date
The Administrative Procedure Act requires publication of a
substantive rule 30 days or more before the effective date unless one
of the following conditions in 5 U.S.C. 553(d) are met:
(1)A substantive rule which grants or recognizes an exemption or
relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and
published with the rule.
This final rule establishing an OTRT non-waste categorical
determination satisfies 553(d)(1) in that it relieves a restriction by
allowing OTRTs to be combusted as non-waste rather than as waste when
certain conditions are met as described below in Section III. OTRTs
represent a relatively small percentage of the railroad ties in use
with the majority being creosote treated railroad ties (CTRTs). When
the railroad ties are taken out of service and used as fuel, there is
no way to distinguish between the OTRTs and the CTRTs. In order to
ensure that CTRTs mixed with OTRTs are not considered a waste, EPA is
making this final rule effective immediately and providing regulatory
certainty.
II. Background
A. History of the NHSM Rulemakings
The Agency first solicited comments on how the RCRA definition of
solid waste should apply to NHSMs when used as fuels or ingredients in
combustion units in an advanced notice of proposed rulemaking (ANPRM),
which was published in the Federal Register on January 2, 2009 (74 FR
41). We then published an NHSM proposed rule on June 4, 2010 (75 FR
31844), which the EPA made final on March 21, 2011 (76 FR 15456).
In the March 21, 2011 (76 FR 15456) rule, the EPA finalized
standards and procedures to be used to identify whether NHSMs are solid
wastes when used as fuels or ingredients in combustion units.
``Secondary material'' was defined for the purposes of that rulemaking
as any material that is not the primary product of a manufacturing or
commercial process, and can include post-consumer material, off-
specification commercial chemical products or manufacturing chemical
intermediates, post-industrial material, and scrap (codified in 40 CFR
241.2). ``Non-hazardous secondary material'' is a secondary material
that, when discarded, would not be identified as a hazardous waste
under 40 CFR part 261 (codified in 40 CFR 241.2). Traditional fuels,
including historically managed traditional fuels (e.g., coal, oil,
natural gas) and ``alternative'' traditional fuels (e.g., clean
cellulosic biomass) are not secondary materials and thus, are not solid
wastes under the rule unless discarded (codified in 40 CFR 241.2).
A key concept under the March 21, 2011 rule is that NHSMs used as
non-waste fuels and ingredients in combustion units must meet the
legitimacy criteria specified in 40 CFR 241.3(d)(1). Application of the
legitimacy criteria helps ensure that the fuel product is being
legitimately and beneficially used and not simply being discarded
through combustion (i.e., via sham recycling). To meet the legitimacy
criteria, the NHSM must be managed as a valuable commodity, have a
meaningful heating value and be used as a fuel in a combustion unit
that recovers energy, and contain contaminants or groups of
contaminants \2\ at concentrations comparable to (or lower than) those
in traditional fuels which the combustion unit is designed to burn. For
NHSMs used as an ingredient, in addition to the other listed criteria,
the ingredient must be used to make a valuable product.
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\2\ For additional information on grouping of contaminants see
78 FR 9146.
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Based on these criteria, the March 21, 2011 rule identified the
following NHSMs as not being solid wastes:
The NHSM is used as a fuel and remains under the control
of the generator (whether at the site of generation or another site the
generator has control over) that meets the legitimacy criteria (40 CFR
241.3(b)(1));
The NHSM is used as an ingredient in a manufacturing
process (whether by the generator or outside the control of the
generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));
Discarded NHSM that has been sufficiently processed to
produce a fuel or ingredient that meets the legitimacy criteria (40 CFR
241.3(b)(4)); or
Through a case-by-case petition process, it has been
determined that the NHSM handled outside the control of the generator
has not been discarded and is indistinguishable in all relevant aspects
from a fuel product, and meets the legitimacy criteria (40 CFR
241.3(c)).
In October 2011, the Agency announced it would be initiating a new
rulemaking proceeding to revise certain aspects of the NHSM rule.\3\ On
February 7, 2013, the EPA published a final rule, which addressed
specific targeted amendments and clarifications to the 40 CFR part 241
regulations (78 FR 9112). These revisions and clarifications were
limited to certain issues on which the Agency had received new
information, as well as targeted revisions that the Agency believed
were appropriate in order to allow implementation of the rule as the
EPA originally intended. The amendments modified 40 CFR 241.2 and
241.3, added 40 CFR 241.4, and included the following: \4\
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\3\ See October 14, 2011, Letter from Administrator Lisa P.
Jackson to Senator Olympia Snowe. A copy of this letter is in the
docket for the February 7, 2013 final rule (EPA-HQ-RCRA-2008-1873).
\4\ See 78 FR 9112 (February 7, 2013) for a discussion of the
rule and the Agency's basis for its decisions.
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Revised Definitions: The EPA revised three definitions
discussed in the proposed rule: (1) ``Clean cellulosic biomass,'' (2)
``contaminants,'' and (3) ``established tire collection program.'' In
addition, based on comments received on the proposed rule, the Agency
revised the definition of ``resinated wood.''
Contaminant Legitimacy Criterion for NHSMs Used as Fuels:
The EPA issued revised contaminant legitimacy criterion for NHSMs used
as fuels to provide additional details on how contaminant-specific
comparisons between NHSMs and traditional fuels may be made.
Categorical Non-Waste Determinations for Specific NHSMs
Used as Fuels. The EPA codified determinations that certain NHSMs are
non-wastes when used as fuels. If a material is categorically listed as
a non-waste fuel, persons that generate or burn these NHSMs will not
need to make individual determinations, as required under the existing
rules, that these NHSMs meet the legitimacy criteria. Except where
otherwise noted, combustors of these materials will not be required to
provide further information demonstrating their non-waste status. Based
on all available information, the EPA determined the following NHSMs
are not solid wastes when burned as a fuel in combustion units and
categorically listed them in 40 CFR 241.4(a).\5\
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\5\ In the March 21, 2011 NHSM rule (76 FR 15456), EPA
identified two NHSMs as not being solid wastes, although persons
would still need to make individual determinations that these NHSMs
meet the legitimacy criteria: (1) Scrap tires used in a combustion
unit that are removed from vehicles and managed under the oversight
of established tire collection programs and (2) resinated wood used
in a combustion unit. However, in the February 2013 NHSM rule, the
Agency amended the regulations and listed these NHSMs as categorical
non-waste fuels.
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[[Page 5320]]
--Scrap tires that are not discarded and are managed under the
oversight of established tire collection programs, including tires
removed from vehicles and off-specification tires;
--Resinated wood;
--Coal refuse that has been recovered from legacy piles and processed
in the same manner as currently-generated coal that would have been
refuse if mined in the past;
--Dewatered pulp and paper sludges that are not discarded and are
generated and burned on-site by pulp and paper mills that burn a
significant portion of such materials where such dewatered residuals
are managed in a manner that preserves the meaningful heating value of
the materials.
Rulemaking Petition Process for Other Categorical Non-
Waste Determinations: EPA made final a process in 40 CFR 241.4(b) that
provides persons an opportunity to submit a rulemaking petition to the
Administrator, seeking a determination for additional NHSMs to be
categorically listed in 40 CFR 241.4(a) as non-waste fuels, if they can
demonstrate that the NHSM meets the legitimacy criteria or, after
balancing the legitimacy criteria with other relevant factors, EPA
determines that the NHSM is not a solid waste when used as a fuel.
The February 8, 2016 final rule amendments (81 FR 6688) added the
following to the list of categorical non-waste fuels:
Construction and demolition (C&D) wood processed from C&D
debris according to best management practices. Under this listing,
combustors of C&D wood must obtain a written certification from C&D
processing facilities that the C&D wood has been processed by trained
operators in accordance with best management practices. Best management
practices must include sorting by trained operators that excludes or
removes the following materials from the final product fuel: non-wood
materials (e.g., polyvinyl chloride and other plastics, drywall,
concrete, aggregates, dirt, and asbestos), and wood treated with
creosote, pentachlorophenol, chromated copper arsenate, or other
copper, chromium, or arsenical preservatives. Additional required best
management practices address removal of lead-painted wood.
Paper recycling residuals generated from the recycling of
recovered paper, paperboard and corrugated containers and combusted by
paper recycling mills whose boilers are designed to burn solid fuel.
Creosote-treated railroad ties (CTRT) that are processed
(which includes metal removal and shredding or grinding at a minimum)
and then combusted in the following types of units:
[cir] Units designed to burn both biomass and fuel oil as part of
normal operations and not solely as part of start-up or shut-down
operations, and
[cir] Units at major source pulp and paper mills or power producers
subject to 40 CFR part 63, subpart DDDDD, that combust CTRTs and had
been designed to burn biomass and fuel oil, but are modified (e.g., oil
delivery mechanisms are removed) in order to use natural gas instead of
fuel oil, as part of normal operations and not solely as part of start-
up or shut-down operations. The CTRTs may continue to be combusted as
product fuel only if the following conditions are met, which are
intended to ensure that the CTRTs are not being discarded: CTRTs must
be burned in existing (i.e., commenced construction prior to April 14,
2014) stoker, bubbling bed, fluidized bed, or hybrid suspension grate
boilers; and, CTRTs can comprise no more than 40 percent of the fuel
that is used on an annual heat input basis.
Based on these non-waste categorical determinations, as discussed
previously, facilities burning NHSMs that meet the categorical listing
description will not need to make individual determinations that the
NHSM meets the legitimacy criteria or provide further information
demonstrating their non-waste status on a site-by-site basis, provided
they meet the conditions of the categorical listing.
B. Background to This Final Rule
The Agency received a petition from the Treated Wood Council (TWC)
in April 2013 \6\ requesting that various nonhazardous treated wood
(including borate and copper naphthenate) be categorically listed as
non-waste fuels in 40 CFR 241.4(a). Under the April 2013 petition,
nonhazardous treated wood included: waterborne borate based
preservatives; waterborne organic based preservatives; waterborne
copper based wood preservatives (ammoniacal/alkaline copper quat,
copper azole, copper HDO, alkaline copper betaine, or copper
naphthenate); creosote; oil borne copper naphthenate;
pentachlorophenol; or dual-treated with any of the above.
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\6\ Included in the docket for the February 2016 final rule--
EPA-HQ-RCRA-2013-0110-0056.
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In the course of EPA's review of the April 2013 petition,
additional data was requested and received, and meetings were held
between TWC and EPA representatives. Overall, the EPA review determined
that there were limited data points available and the analytical
techniques for some contaminants were not appropriate to provide
information on the entire preserved wood sample as it would be
combusted. EPA also questioned the representativeness of the samples
being analyzed and the repeatability of the analyses.
In the subsequent August 21, 2015 letter from TWC to Barnes
Johnson,\7\ TWC requested that the Agency move forward on a subset of
materials that were identified in the original April 2013 petition
which are creosote borate, copper naphthenate, and copper naphthenate-
borate treated railroad ties. In the letter, TWC indicated that these
types of ties are increasingly being used as alternatives to CTRT, due,
in part, to lower overall contaminant levels and because the ability to
reuse these new types of treated ties as fuel is an important
consideration in overall rail tie purchasing decisions. Other industry
information claimed that these treatments have proven to increase decay
resistance for ties in severe decay environments and for species that
are difficult to treat with creosote alone.\8\
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\7\ Included in the docket for the February 2016 final rule.
Follow-up meetings were also held with TWC on September 14, 2015 and
December 17, 2015 summaries of which are also included in that
docket.
\8\ Railway Tie Association ``Frequently Asked Questions''
available on http://www.rta.org/faqs.
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The Agency reviewed TWC's information on the three types of treated
railroad ties, creosote borate, copper naphthenate, and copper
naphthenate-borate, submitted on September 11, 2015 and requested
additional contaminant data, which was submitted on October 5, 2015 and
October 19, 2015.\9\ Based on that information, EPA stated in the
February 2016 final rule that we believe these three treated railroad
ties are candidates for categorical non-waste listings and expected to
begin development of a proposed rule under 40 CFR 241.4(a) regarding
those listings in the near future. That proposed rule was issued
November 1, 2016 (81 FR 75781).
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\9\ These data submissions and the letter from TWC on August 21,
2015 are included in the docket for this rule.
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C. How will EPA make categorical non-waste determinations?
The February 7, 2013 revisions to the NHSM rule discuss the process
and
[[Page 5321]]
decision criteria whereby the Agency would make additional categorical
non-waste determinations (78 FR 9158). These determinations follow the
weight-of-evidence criteria set out in 40 CFR 241.4(b)(5), which the
Agency established to assess additional categorical non-waste petitions
and follow the statutory standards as interpreted by the EPA in the
NHSM rule for deciding whether secondary materials qualify as solid
wastes. Those criteria include: (1) Whether each NHSM has not been
discarded in the first instance (i.e., was not initially abandoned or
thrown away) and is legitimately used as a fuel in a combustion unit
or, if discarded, has been sufficiently processed into a material that
is legitimately used as a fuel; and, (2) if the NHSM does not meet the
legitimacy criteria described in 40 CFR 241.3(d)(1), whether the NHSM
is integrally tied to the industrial production process, the NHSM is
functionally the same as the comparable traditional fuel, or other
relevant factors as appropriate.
Based on the information in the rulemaking record and comments
received, the Agency is finalizing amendments to 40 CFR 241.4(a) by
listing three other types of treated railroad ties as categorical non-
waste fuels, in addition to CTRTs added in February 2016. Specific
determinations regarding these other treated railroad ties (OTRTs,
i.e., creosote-borate, copper naphthenate, copper naphthenate-borate;
and, mixtures of creosote, borate and/or copper naphthenate treated
railroad ties) and how the information was assessed by EPA according to
the criteria in 40 CFR 241.4(b)(5), are discussed in detail in section
III of this preamble.
The rulemaking record for this rule (i.e., EPA-HQ-RCRA-2016-0248)
includes those documents and information submitted specifically to
support a determination as to whether certain OTRTs should be listed as
a categorical non-waste fuel. However, the principles used to determine
categorical listings are based on the NHSM rules promulgated over the
past few years. While EPA is not formally including in the record for
this rule materials supporting the previous NHSM rulemakings, the
Agency is nevertheless issuing this rule consistent with the NHSM
regulations and the supporting records for those rules. This rulemaking
in no way reopens any issues resolved in previous NHSM rulemakings. It
simply responds to a petition in accordance with the standards and
procedures outlined in the existing NHSM regulations.
III. Comments on the Proposed Rule and Rationale for Final Decisions
The following sections provide the Agency rationale for its
determination that OTRTs are appropriate for listing in Sec. 241.4(a)
as categorical non-wastes when burned as a fuel in prescribed
combustion units. It also addresses major comments the Agency received
on the November 1, 2016 NHSM OTRT proposed rule (81 FR 75781). That
proposal explained the status of OTRT under current rules, discussed
information received during previous rulemakings, as well as the scope
of the proposed categorical non-waste fuel listings. The proposed
rationale for the listings is found at 81 FR 75788-96 and is
incorporated into this final rule, along with all sources referenced in
that discussion and cited therein. The final decision in this rule is
based on the information in the proposal, comments received on the
proposal and supporting materials in the rulemaking record. Any changes
from the proposed rule made to the final rule are identified below.
A. Detailed Description of OTRTs
1. Processing
As described in the proposed rulemaking (81 FR 75781, November 1,
2016 (page 75785)), industry representatives stated that the removal of
OTRTs from service and processing of those ties into a product fuel is
similar to processing of CTRTs described in the February 2016 rule.\10\
OTRTs are typically comprised of North American hardwoods that have
been treated with a wood preservative. The removal from service,
processing and use as a fuel happens through three parties: the
generator of the crossties (railroad or utility); the reclamation
company that sorts the crossties, and in some cases processes the
material received from the generator; and the combustor as third party
energy producers. Typically, ownership of the OTRTs are generally
transferred directly from the generator to the reclamation company that
sorts materials for highest value secondary uses, and then sells the
products to end-users, including those combusting the material as fuel.
Some reclamation companies sell OTRTs to processors who remove metal
contaminants and grind the ties into chipped wood. Other reclamation
companies have their own grinders, do their own contaminant removal,
and can sell directly to the combusting facilities. Information
submitted to the Agency indicates there are approximately 15 recovery
companies in North America with industry-wide revenues of $65-75
million.
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\10\ 81 FR 6688 The OTRTs removed from service are considered
discarded because they can be stored for long periods of time
without a final determination regarding their final end use. In
order for them to be considered a non-waste fuel, they must be
processed, thus transforming the OTRTs into a product fuel that
meets the legitimacy criteria. (81 FR 75788; November 1, 2016).
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After crossties are removed from service, they are transferred for
sorting/processing, but in some cases, they may be temporarily stored
in the railroad rights-of-way or at another location selected by the
reclamation company. One information source \11\ indicated that when
the crossties are temporarily stored, they are stored until their value
as an alternative fuel can be realized, generally through a contract
completed for transferal of ownership to the reclamation contractor or
combustor. This means that not all OTRTs originate from crossties
removed from service in the same year; some OTRTs are processed from
crossties removed from service in prior years and stored by railroads
or removal/reclamation companies until their value as a landscaping
element or fuel could be realized.
---------------------------------------------------------------------------
\11\ M.A. Energy Resources LLC, Petition submitted to
Administrator, EPA, February 2013.
---------------------------------------------------------------------------
Typically, reclamation companies receive OTRTs by rail. The
processing of the crossties into fuel by the reclamation/processing
companies involves several steps. Contaminant metals (spikes, nails,
plates, etc.) undergo initial separation and removal by the user
organization (railroad company) during inspection. At the reclamation
company, the crossties are then ground or shredded to a specified size
depending on the particular needs of the end-use combustor, with chip
size typically between 1-2 inches. Such grinding and shredding
facilitates handling, storage and metering to the combustion chamber.
By achieving a uniform particle size, combustion efficiency will be
improved due to the uniform and controlled fuel feed rate and the
ability to regulate the air supply. Additionally, the size reduction
process exposes a greater surface area of the particle prior to
combustion, releasing any moisture more rapidly, and thereby enhancing
its heating value. This step may occur in several phases, including
primary and secondary grinding, or in a single phase. Additional metal
removal may also occur after shredding.
Once the crossties are ground to a specific size, there is further
screening based on the particular needs of the end-use combustor.
Depending on the configuration of the facility and
[[Page 5322]]
equipment, screening may occur concurrently with grinding or at a
subsequent stage. Once the processing of OTRTs is complete, the OTRTs
are sold directly to the end-use combustor for energy recovery.
Processed OTRTs are delivered to the buyers by railcar or truck. The
processed OTRTs are then stockpiled prior to combustion in a manner
consistent with biomass fuels, with a typical storage timeframe ranging
from a day to a week. When the OTRTs are to be burned for energy
recovery, the material is then transferred from the storage location
using a conveyor belt or front-end loader. The OTRTs may be combined
with other biomass fuels, including hog fuel and bark. OTRTs are
commonly used to provide the high British thermal unit (Btu) fuel to
supplement low (and sometimes wet) Btu biomass to ensure proper
combustion, often in lieu of coal or other fossil fuels.\12\ The
combined fuel may be further hammered and screened prior to combustion.
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\12\ American Forest & Paper Association, American Wood
Council--Letter to EPA Administrator, December 6, 2012.
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In general, contracts for the purchase and combustion of OTRTs
include fuel specifications limiting contaminants, such as metals, and
prohibiting the receipt of wood treated with other preservatives such
as pentachlorophenol.
2. Treatment Descriptions
i. Copper Naphthenate
Copper naphthenate's effectiveness as a preservative has been known
since the early 1900s, and various formulations have been used
commercially since the 1940s. It is an organometallic compound formed
as a reaction product of copper salts and naphthenic acids derived from
petroleum. Unlike other commercially applied wood preservatives, small
quantities of copper naphthenate can be purchased at retail hardware
stores and lumberyards. Cuts or holes in treated wood can be treated in
the field with copper naphthenate. Wood treated with copper naphthenate
has a distinctive bright green color that weathers to light brown. The
treated wood also has an odor that dissipates somewhat over time. Oil
borne copper naphthenate is used for treatment of railroad ties since
that treatment results in the ties being more resistant to cracks and
checking. Waterborne copper naphthenate is used only for interior
millwork and exterior residential dimensional lumber applications such
as decking, fencing, lattice, recreational equipment, and other
structures. Thus, this final rule does not address waterborne copper
naphthenate.
Copper naphthenate can be dissolved in a variety of solvents: The
heavy oil solvent (specified in American Wood Protection Association
(AWPA) Standard P9, Type A) or the lighter solvent (AWPA Standard P9,
Type C). The lighter solvent is the most commonly used for railroad
ties due to its ability to penetrate the wood. Copper naphthenate is
listed in AWPA standards for treatment of major softwood species that
are used for a variety of wood products. It is not listed for treatment
of any hardwood species, except when the wood is used for railroad
ties. The minimum copper naphthenate retentions (the amount of
retention of the preservative in the tie after treatment application)
range from 0.04 pounds per cubic foot (0.6 kilograms per cubic meter)
for wood used aboveground, to 0.06 pounds per cubic foot (1 kilogram
per cubic meter) for wood that will contact the ground and 0.075 pounds
per cubic foot (1.2 kilograms per cubic meter) for wood used in
critical structural applications.\13\
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\13\ U.S. Forest Service Preservative Treated Wood and
Alternative Products in the Forest Service: https://www.fs.fed.us/t-d/pubs/htmlpubs/htm06772809/page02.htm
---------------------------------------------------------------------------
When dissolved in No. 2 fuel oil (Type C under AWPA standards),
copper naphthenate can penetrate wood that is difficult to treat.
Copper naphthenate loses some of its ability to penetrate wood when it
is dissolved in heavier oils. Copper naphthenate treatments do not
significantly increase the corrosion of metal fasteners relative to
untreated wood.
Copper naphthenate is commonly used to treat utility poles,
although fewer facilities treat utility poles with copper naphthenate
than with creosote or pentachlorophenol. Unlike creosote and
pentachlorophenol, copper naphthenate is not listed as a Restricted Use
Pesticide (RUP) \14\ by the EPA. Even though human health concerns do
not require copper naphthenate to be listed as an RUP, precautions such
as the use of dust masks and gloves are used when working with wood
treated with copper naphthenate.
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\14\ List of Restricted Use Pesticides found at: https://www.epa.gov/pesticide-worker-safety/restricted-use-products-rup-report.
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ii. Borates
Borates is the name for a large number compounds containing the
element boron. Borate compounds are the most commonly used unfixed
waterborne preservatives. Unfixed preservatives can leach from treated
wood. They are used for pressure treatment of framing lumber used in
areas with high termite hazard and as surface treatments for a wide
range of wood products, such as cabin logs and the interiors of wood
structures. They are also applied as internal treatments using rods or
pastes. At higher rates of retention, borates also are used as fire-
retardant treatments for wood. Copper naphthenate treated ties are most
effective when dual-treated with borate to prevent decay.\15\
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\15\ Railroad Tie Association. Frequently Asked Questions http://www.rta.org/faqs-main.
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Performance characteristics of borate treatment include protection
of the wood against fungi and insects, with low mammalian toxicity.
Another advantage of boron is its ability to diffuse with water into
wood that normally resists traditional pressure treatment. Wood treated
with borates has no added color, no odor, and can be finished (primed
and painted).
Inorganic boron is listed as a wood preservative in the AWPA
standards, which include formulations prepared from sodium octaborate,
sodium tetraborate, sodium pentaborate, and boric acid. Inorganic boron
is also standardized as a pressure treatment for a variety of species
of softwood lumber used out of contact with the ground and continuously
protected from water. The minimum borate (B2O3)
retention is 0.17 pounds per cubic foot (2.7 kilograms per cubic
meter). A retention of 0.28 pounds per cubic foot (4.5 kilograms per
cubic meter) is specified for areas with Formosan subterranean
termites.\16\
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\16\ U.S. Forest Service Preservative Treated Wood and
Alternative Products in the Forest Service https://www.fs.fed.us/t-d/pubs/htmlpubs/htm06772809/page02.htm.
---------------------------------------------------------------------------
Borate preservatives are available in several forms, but the most
common is disodium octaborate tetrahydrate (DOT). DOT has higher water
solubility than many other forms of borate, allowing more concentrated
solutions to be used and increasing the mobility of the borate through
the wood. With the use of heated solutions, extended pressure periods,
and diffusion periods after treatment, DOT can penetrate wood species
that are relatively difficult to treat, such as spruce. Several
pressure treatment facilities in the United States use borate
solutions. For refractory wood species destined for high decay areas,
it has now become relatively common practice to use borates as a pre-
treatment to protect the wood prior to processing with creosote.
iii. Creosote
Creosote was introduced as a wood preservative in the late 1800's
to prolong the life of railroad ties. CTRTs
[[Page 5323]]
remain the material of choice by railroads due to their long life,
durability, cost effectiveness, and sustainability. As creosote is a
by-product of coal tar distillation, and coal tar is a by-product of
making coke from coal, creosote is considered a derivative of coal. The
creosote component of CTRTs is also governed by the standards
established by AWPA. AWPA has established two blends of creosote, P1/13
and P2. Railroad ties are typically manufactured using the P2 blend
that is more viscous than other blends.
B. OTRTs Under Current NHSM Rules
1. March 2011 NHSM Final Rule
The March 2011 NHSM final rule stated that most creosote-treated
wood is non-hazardous. However, the presence of hexachlorobenzene, a
CAA section 112 hazardous air pollutant (HAP), as well as other HAPs
suggested that creosote-treated wood, including CTRTs, contained
contaminants at levels that are not comparable to or lower than those
found in wood or coal, the fuel that creosote-treated wood would
replace. In making this assessment in 2011, the Agency did not consider
fuel oil \17\ as a traditional fuel that CTRTs would replace, and
concluded at the time that combustion of creosote-treated wood may
result in destruction of contaminants contained in those materials.
Such destruction is an indication of discard and incineration, a waste
activity. Accordingly, creosote-treated wood, including CTRTs when
burned, seemed more like a waste than a commodity, and did not meet the
contaminant legitimacy criterion. This material, therefore, was
considered a solid waste when burned, and units' combusting it would be
subject to the CAA section 129 emission standards (40 CFR part 60,
subparts CCCC and DDDD).
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\17\ For the purposes of this rule, fuel oil means oils 1-6,
including distillate, residual, kerosene, diesel, and other
petroleum based oils. It does not include gasoline or unrefined
crude oil.
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Regarding borate-treated wood, after reviewing data from one
commenter which showed that the levels of contaminants in this material
are comparable to those found in unadulterated wood for the seven
contaminants for which data was presented, the Agency stated in the
March 2011 final rule that such treated-wood meets the legitimacy
criterion on the level of contaminants and comparability to traditional
fuels. The rule further stated that borate-treated wood could be
classified as a non-waste fuel, provided the other two legitimacy
criteria are met and the contaminant levels for any other HAP that may
be present in this material are also comparable to or less than those
in traditional fuels. The rule noted that such borate-treated wood
would need to be burned as a fuel for energy recovery within the
control of the generator. Finally, the rule indicated that EPA was
aware of some borate-treated wood is subsequently treated with
creosote, to provide an insoluble barrier to prevent the borate
compounds from leaching out of the wood. The Agency did not receive
data on the contaminant levels of the resulting material with both
treatments, but data presented on creosote treated lumber when
combusted in units designed to burn biomass indicated that this NHSM
would likely no longer meet the legitimacy criteria and would be
considered a solid waste when burned as a fuel.
As indicated in the rule, EPA did not have information generally
about the transfer of borate-treated wood to other companies to make a
broad determination about its use as a fuel outside the control of the
generator. Thus, under the March 2011 rule, borate-treated wood would
need to be burned as a fuel for energy recovery within the control of
the generator (76 FR 15484). Persons could make self-determinations
regarding other uses of the material as fuel including use outside the
control of the generator.
With regard to wood treated with copper naphthenate, the March 2011
rule indicated that no additional contaminant data was provided that
would reverse the position in the June 2010 proposed rule, which
considered wood treated with copper naphthenate a solid waste because
of concerns of elevated levels of contaminants (76 FR 15484, March 21,
2011). The March 2011 rule acknowledged, as in the June 2010 proposed
rule (75 FR 31862, June 4, 2010), that the Agency did not have
sufficient information on the contaminant levels in wood treated with
copper naphthenate. The rule further stated that if a person could
demonstrate that copper naphthenate treated-wood is burned in a
combustion unit as a fuel for energy recovery within the control of the
generator and meets the legitimacy criteria, or if discarded, can
demonstrate that they have sufficiently processed the material and meet
legitimacy criteria, that person can handle its copper naphthenate
treated-wood as a non-waste fuel.
2. February 2013 NHSM Final Rule
In the February 2013 NHSM final rule (78 FR 9173), EPA noted that
the American Forest and Paper Association (AF&PA) and the American Wood
Council submitted a letter with supporting information on December 6,
2012, seeking a categorical non-waste listing and clarification letter
for CTRTs combusted in any unit.\18\ The letter included information
regarding the amounts of railroad ties combusted each year and the
value of the ties as fuel. The letter also discussed how CTRTs satisfy
the legitimacy criteria, including its high Btu value.
---------------------------------------------------------------------------
\18\ American Forest & Paper Association, American Wood
Council--Letter to EPA Administrator, December 6, 2012. Included in
docket for this final rule.
---------------------------------------------------------------------------
While this information was useful, it was not sufficient for the
EPA to propose that CTRTs be listed categorically as a non-waste fuel
at that time. Therefore, EPA requested that additional information be
provided, and indicated that if this additional information supported
and supplemented the representations made in the December 2012 letter,
EPA would expect to propose a categorical non-waste listing for CTRTs.
The requested information included:
A list of industry sectors, in addition to forest product
mills, that burn railroad ties for energy recovery,
The types of boilers (e.g., kilns, stoker boilers,
circulating fluidized bed, etc.) that burn railroad ties for energy
recovery,
The traditional fuels and relative amounts (e.g., startup,
30 percent, 100 percent) of these traditional fuels that could
otherwise generally be burned in these types of units. The extent to
which non-industrial boilers (e.g., commercial or residential boilers)
burn CTRTs for energy recover, and
Laboratory analyses for contaminants known or reasonably
suspected to be present in creosote-treated railroad ties, and
contaminants known to be significant components of creosote,
specifically polycyclic aromatic hydrocarbons (i.e., PAH-16),
dibenzofuran, cresols, hexachlorobenzene, 2,4-dinitrotoluene, biphenyl,
quinoline, and dioxins.\19\ (78 FR 9173, February 7, 2013.)
\19\ The Agency requested these analyses based on the limited
information previously available concerning the chemical makeup of
CTRTs. That limited information included one sample from 1990
(showing the presence of both PAHs and dibenzofuran), past TCLP
results (which showing the presence of cresols, hexachlorobenzene
and 2,4-dinitrotoluene), Material Safety Data Sheets for coal tar
creosote (which showing the potential presence of biphenyl and
quinoline), and the absence of dioxin analyses prior to combustion
despite dioxin analyses of post-combustion emissions.
---------------------------------------------------------------------------
See 81 FR 6723-24, February 8, 2016, for the detailed responses to the
above requested information.
[[Page 5324]]
3. February 2016 NHSM Final Rule
As discussed in section II.B of this preamble, the February 2016
final rule stated that EPA had reviewed the information submitted from
stakeholders regarding CTRTs and determined that the information
supported a categorical determination for those materials under certain
conditions which were promulgated in that rule (see 40 CFR
241.4(a)(7)). The final rule preamble language also referenced an
August 21, 2015 letter to Barnes Johnson where TWC requested that the
Agency move forward on a subset of materials that were identified in
the April 2013 petition (i.e. creosote borate, copper naphthenate, and
copper naphthenate-borate) (81 FR 6738, February 8, 2016). EPA stated
that based on the information received, the Agency believed these three
types of treated railroad ties were candidates for categorical non-
waste listings and expected to begin development of a proposed rule
under 40 CFR 241.4(a) for the three materials in the near future.
C. Scope of the Final Categorical Non-Waste Listing for OTRTs
As discussed in section II.B of this preamble, the November 1, 2016
proposed OTRT rule was based on TWC submitted letters and supporting
documents requesting a categorical non-waste fuel listing for OTRTs.
The information supporting the proposal and the comments received
indicated that these materials have been processed, and meet legitimacy
criteria including management as a valuable commodity, meaningful
heating value and contaminants at levels comparable to or less than
those in the traditional fuels that these combustion units are designed
to burn as fuel. In this final rule, the Agency is listing, as
categorical non-wastes, processed OTRTs when used as fuels. The
rationale for this listing is discussed in detail in the Section D.
For units combusting copper naphthenate-borate and/or copper
naphthenate railroad ties, such materials could be combusted as non-
waste fuels in units designed to burn biomass, biomass and fuel oil, or
biomass and coal under CAA 112 standards. For units combusting railroad
ties containing creosote, including creosote-borate or any mixtures of
ties containing creosote, borate and copper naphthenate, such materials
must be burned in combustion units that are designed to burn, both,
biomass and fuel oil in order for the material to be considered a non-
waste fuel. The Agency would consider combustion units to meet this
requirement if the unit combusts fuel oil as part of normal operations
and not solely as part of start up or shut down operations. Units
combusting ties mixed with creosote that are designed to burn biomass
and fuel oil may also be designed to burn coal under this categorical
non-waste fuel listing.
Consistent with, and for the same reasons as the approach for CTRTs
outlined in the February 2016 final rule (81 FR 6725), units combusting
railroad ties treated with creosote-borate (or other combination
mixtures of railroad ties containing creosote, borate and copper
naphthenate) in units designed to burn biomass and fuel oil, could also
combust those materials in units at major pulp and paper mills or units
at power production facilities subject to 40 CFR part 63, subpart DDDDD
(Boiler MACT), that combust such ties and had been designed to burn
biomass and fuel oil, but are modified (e.g., oil delivery mechanisms
are removed) in order to use natural gas instead of fuel oil as part of
normal operations and not solely as part of start-up or shut-down
operations. These ties may continue to be combusted as a product fuel
only if certain conditions are met, which are intended to ensure that
they are not being discarded:
Must be combusted in existing (i.e., commenced
construction prior to April 14, 2014) stoker, bubbling bed, fluidized
bed or hybrid suspension grate boilers; and
Must comprise no more than 40 percent of the fuel that is
used on an annual heat input basis.\20\
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\20\ As noted in the February 2016 rule, the standards are based
on information received after the February 7, 2013 rule specifically
with regard to existing stoker, bubbling bed, fluidized bed or
hybrid suspension grate boilers in the pulp and paper and power
production industries that were switching from fuel oil to natural
gas due to lower compliance costs and the ability to use cleaner
fuels during operation. The 40% fuel use condition is based on
statements from industry indicating that CTRTs generally compromise
40% of the total fuel load. These conditions regarding types of
existing units and fuel use were designed to ensure, in this
circumstance, that the ties were not discarded. (81 FR 6724).
---------------------------------------------------------------------------
These conditions will also apply if an existing unit designed to
burn fuel oil and biomass (at a power production facility or pulp and
paper mill) is modified to burn natural gas at some point in the
future.
Units combusting ties mixed with creosote that are designed to burn
biomass and fuel oil, but have switched from fuel oil to natural gas,
may also be designed to burn coal under this categorical non-waste fuel
listing.
The approach for railroad ties treated with creosote-borate (or
other mixtures of treated railroad ties containing creosote, borate and
copper naphthenate) addresses only the circumstance where contaminants
in these railroad ties are comparable to or less than the traditional
fuels the combustion unit was originally designed to burn (both fuel
oil and biomass) but that design was modified in order to combust
natural gas. The approach is not a general means to circumvent the
contaminant legitimacy criterion by allowing combustion of any NHSM
with elevated contaminant levels, i.e., levels not comparable to the
traditional fuel the unit is currently designed to burn. As
contaminants in railroad ties treated with creosote are comparable to
the contaminant in biomass and fuel oil, units that had switched to
natural gas from fuel oil would clearly be in compliance with the
legitimacy criteria if they did not switch to the cleaner natural gas
fuel. While contaminant levels may in fact be higher when compared to
natural gas, boilers at pulp and paper mills and power production
facilities have demonstrated the ability to combust these materials
should not be penalized for switching to a cleaner fuel. Removal of oil
delivery mechanisms from units designed to burn fuel oil does not
support a conclusive decision that such ties do not meet legitimacy
criteria and are now being discarded.
Information indicating that these railroad ties alone or in the
combination mixtures are an important part of the fuel mix because of
the consistently lower moisture content and higher Btu value, benefit
the combustion units with significant swings in steam demand, therefore
suggesting that discard is not occurring. The Agency believes it
appropriate to balance other relevant factors in this categorical non-
waste determination and to decide that the switching to the cleaner
natural gas would not render these materials a waste fuel.
This determination is consistent with the February 2016 rule, and
is based on the historical usage of CTRT as a product fuel in stoker,
bubbling bed, fluidized bed and hybrid suspension grate boilers (i.e.,
boiler designs used to combust used railroad ties, see 81 FR 6732).
D. Rationale for Final Rule
1. Discard
When deciding whether an NHSM should be listed as a categorical
non-waste fuel in accordance with 40 CFR 241.4(b)(5), EPA first
evaluates whether or not the NHSM has been discarded, and if not
discarded, whether or not the
[[Page 5325]]
material is legitimately used as a product fuel in a combustion unit.
If the material has been discarded, EPA evaluates whether the NHSM has
been sufficiently processed into a material that is legitimately used
as a product fuel.
Information submitted by petitioners regarding OTRTs removed from
service and processed was analogous to that for CTRTs. Specifically,
OTRTs removed from service are sometimes temporarily stored in the
railroad right-of-way or at another location selected by the removal/
reclamation company. This means that not all OTRTs originate from
crossties removed from service in the same year; some OTRTs are
processed from crossties removed from service in prior years and stored
by railroads or removal/reclamation companies until a contract for
reclamation is in place.
EPA reiterates its position from the February 8, 2016 (81 FR 6725)
final rule regarding cases where a railroad or reclamation company
waits for more than a year to realize the value of OTRTs as a fuel. The
Agency again concludes that OTRTs are removed from service and stored
in a railroad right-of-way or location for long periods of time, that
is, a year or longer without a determination regarding their final end
use (e.g., landscaping, as a fuel or landfilled) indicates that the
material has been discarded in the first instance and is a solid waste
(see also the general discussion of discard at 76 FR 15463, March 11,
2011 rule).\21\ Regarding any assertion that OTRTs are a valuable
commodity in a robust market, the Agency would like to remind persons
that NHSMs may have value in the marketplace and still be considered
solid wastes.
2. Processing
Since the OTRTs removed from service are considered discarded
because they can be stored for long periods of time without a final
determination regarding their final end use, to be considered a non-
waste fuel they must be processed, i.e. transforming the OTRTs into a
product fuel that meets the legitimacy criteria.\22\ The Agency
concludes that the processing of OTRTs described previously in section
III.A.1 of this preamble meets the definition of processing in 40 CFR
241.2. As discussed in that section, processing includes operations
that transform a discarded NHSM into a non-waste fuel or non-waste
ingredient, including operations necessary to: Remove or destroy
contaminants; significantly improve the fuel characteristics (e.g.,
sizing or drying of the material, in combination with other
operations); chemically improve the as-fired energy content; or improve
the ingredient characteristics. Minimal operations that result only in
modifying the size of the material by shredding do not constitute
processing for the purposes of the definition. The Agency concludes
that OTRTs meet the definition of processing in 40 CFR 241.3 because
contaminant metals are removed in several steps and the fuel
characteristics are significantly improved; specifically:
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\22\ Persons who concluded that their OTRTs are not discarded
and thus are not subject to this categorical determination may
submit an application to the EPA Regional Administrator that the
material has not been discarded when transferred to a third party
and is indistinguishable from a product fuel (76 FR 15551, March 21,
2011). Persons can also make self-determinations for their NHSM.
---------------------------------------------------------------------------
Contaminants (e.g., spikes, plates, transmission wire and
insulator bulbs) are removed during initial inspection by the user
organization;
Removal of contaminant metals occurs again at the
reclamation facility using magnets; such removal may occur in multiple
stages;
The fuel characteristics of the material are improved when
the crossties are ground or shredded to a specified size (typically 1-2
inches) due to increased surface area. The final size depends on the
particular needs of the end-use combustor. The grinding may occur in
one or more phases; and
Once the contaminant metals are removed and the OTRTs are
ground, there may be additional operations to bring the material to a
specified size.
3. Legitimacy Criteria
EPA can list a discarded NHSM as a categorical non-waste fuel if it
has been ``sufficiently processed,'' and meets the legitimacy criteria.
The three legitimacy criteria to be evaluated are: (1) The NHSM must be
managed as a valuable commodity, (2) the NHSM must have a meaningful
heating value and be used as a fuel in a combustion unit to recover
energy, and (3) the NHSM must have contaminants or groups of
contaminants at levels comparable to or less than those in the
traditional fuel the unit is designed to burn.\23\
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\23\ We note that even if the NHSM does not meet one or more of
the legitimacy criteria, the Agency could still propose to list an
NHSM categorically by balancing the legitimacy criteria with other
relevant factors (see 40 CFR 241.4(b)(5)(ii).
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i. Managed as a Valuable Commodity
Data submitted \24\ indicates that OTRT processing and subsequent
management is analogous to that of CTRTs outlined in the February 8,
2016 final rule (81 FR 6725). The processing of OTRTs is correlated to
the particular needs of the end-use combustor. The process begins when
the railroad or utility company removes the old OTRTs from service. An
initial inspection is conducted where non-combustible materials are
sorted out. OTRTs are stored in staging areas until shippable
quantities are collected. Shippable quantities are transported via
truck or rail to a reprocessing center.
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\24\ See section III.D.4. of this preamble for a description of
EPA's review of all data submitted regarding meeting legitimacy
criteria.
---------------------------------------------------------------------------
At the reprocessing center, pieces are again inspected, sorted, and
non-combustible materials are removed. Combustible pieces then undergo
size reduction and possible blending with compatible combustibles. Once
the OTRTs meet the end use specification, they are then sold directly
to the end-use combustor for energy recovery. OTRTs are delivered to
the end-use combustors via railcar and/or truck similar to delivery of
traditional biomass fuels.
After receipt, OTRTs are stockpiled similar to analogous biomass
fuels (e.g., in fuel silos) to maximize dryness and minimize dust.
While awaiting combustion at the end-user, which usually occurs within
one day to a week of arrival, the OTRTs are also transferred and/or
handled from storage in a manner consistent with the transfer and
handling of biomass fuels. Procedures include screening by the end-use
combustor, combining with other biomass fuels, and transferring to the
combustor via conveyor belt or front-end loader.
Since the storage of the processed material does not exceed
reasonable time frames and the processed ties are handled/treated
similar to analogous biomass fuels by end-use combustors, OTRTs meet
the criterion for being managed as a valuable commodity.
ii. Meaningful Heating Value and Used as a Fuel To Recover Energy
EPA received the following information for the heating values of
processed OTRTs: 6,867 Btu/lb for creosote-borate; 7,333 Btu/lb for
copper naphthenate; 5,967 Btu/lb for copper naphthenate-borate; 5,232
Btu/lb for mixed railroad ties containing 56% creosote, 41% creosote-
borate, 1% copper naphthenate, 2% copper naphthenate-borate; and 7,967
Btu/lb for mixed ties containing 25% creosote, 25% creosote borate, 25%
copper naphthenate and 25% copper
[[Page 5326]]
naphthenate-borate.\25\ \26\ In the March 2011 NHSM final rule, the
Agency indicated that NHSMs with an energy value greater than 5,000
Btu/lb, as fired, are considered to have a meaningful heating
value.\27\ Thus, OTRTs meet the criterion for meaningful heating value
and used as a fuel to recover energy.
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\25\ Letter from Jeff Miller to Barnes Johnson, September 11,
2015; see docket for this rule.
\26\ These values reflect averages from 2013 and 2015 data.
Relevant lab data on Btu/lb for each types of processed OTRT can be
viewed in the September and October 2015 letters from Jeff Miller to
Barnes Johnson included in the docket.
\27\ See 76 FR 15541, March 21, 2011.
---------------------------------------------------------------------------
iii. Contaminants Comparable to or Lower Than Traditional Fuels
For each type of OTRT, EPA has compared the September 2015 data
submitted on contaminant levels by petitioners to contaminant data for
biomass/untreated wood, and fuel oil. In response to comments on the
proposal, EPA has also taken the September 2015 data and compared them
to coal. The petitioner's data included samples taken from 15 different
used creosote-borate ties, 15 different copper naphthenate-borate ties,
15 creosote ties, and 15 copper naphthenate ties. Each type of tie
sample was divided into three groups of five tie samples each. This
resulted in 12 total groups corresponding to the four different types
ties. Each group was then isolated, mixed together, processed into a
fuel-type consistency, and shipped to the laboratory for analysis.
Use of these types of ties are relatively new compared to creosote,
so few of these OTRT have transitioned to fuel use at this time, but we
expect more in the future. To simulate that transition over time, three
samples of unequally-blended tie material (56% creosote, 41% creosote-
borate, 1% copper naphthenate, 2% copper naphthenate-borate) and three
samples of equally blended tie material (25% creosote, 25% creosote-
borate, 25% copper naphthenate, 25% copper naphthenate-borate) were
analyzed. The lab analyzed three samples of each of the processed tie
treated with creosote, creosote-borate, copper naphthenate and copper
naphthenate-borate. In addition, the lab analyzed three samples of
equally-blended tie material, three samples of unevenly-blended tie
material, and three samples of untreated wood for a total of 18
samples.
In addition to September 2015 data, copper naphthenate-borate, and
copper naphthenate test data had also been submitted in conjunction
with TWC's earlier December 4, 2013 petition and are included in the
following tables. As noted in section II.B of this preamble, the 2013
data did not have details on the number of samples collected. In
addition, sulfur was measured using leachable anion techniques that do
not provide results of the total contaminant content, and heat content
was not measured. Therefore, the Agency's decisions are based on the
complete data submitted in 2015 supplemented by the 2013 data. The
results of the analysis of the 2015 and 2013 data are shown in the
following tables.
Copper Naphthenate
----------------------------------------------------------------------------------------------------------------
Copper
naphthenate Biomass/
Contaminant railroad ties untreated wood Fuel oil \b\ Coal \b\
contaminant \b\
levels \a\ \f\
----------------------------------------------------------------------------------------------------------------
Metal Elements (PPM-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony.................................... ND<1.4 ND-26 ND-15.7 0.5-10
Arsenic..................................... 0.53-0.93 ND-298 ND-13 0.5-174
Beryllium................................... ND-0.05 ND-10 ND-19 0.1-206
Cadmium..................................... ND-0.20 ND-17 ND-1.4 0.1-19
Chromium.................................... 0.22-0.50 ND-340 ND-37 0.5-168
Cobalt...................................... ND-0.81 ND-213 ND-8.5 0.5-30
Lead........................................ ND-3.5 ND-340 ND-56.8 2-148
Manganese................................... 7.1-166 ND-15,800 ND-3,200 5-512
Mercury..................................... ND<0.20 ND-1.1 ND-0.2 0.02-3.1
Nickel...................................... 0.79-1.1 ND-540 ND-270 0.5-730
Selenium.................................... 0.41-0.84 ND-9.0 ND-4 0.2-74.3
----------------------------------------------------------------------------------------------------------------
Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine.................................... ND<100 ND-5,400 ND-1,260 ND-9,080
Fluorine.................................... ND<100 ND-300 ND-14 ND-178
Nitrogen.................................... ND<500 200-39,500 42-8,950 13,600-54,000
Sulfur...................................... 190-240 ND-8,700 ND-57,000 740-61,300
----------------------------------------------------------------------------------------------------------------
Semivolatile Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................ 3.0-95 ND-50 \h\ 111 --
Acenaphthylene.............................. ND<1.3 ND-4 4.1 --
Anthracene.................................. ND-6.3 0.4-87 96 --
Benzo[a]anthracene.......................... ND<1.3 ND-62 41-1,900 --
Benzo[a]pyrene.............................. ND<1.3 ND-28 0.60-960 --
Benzo[b]fluoranthene........................ ND<1.3 ND-42 11-540 --
Benzo[ghi]perylene.......................... ND<1.3 ND-9 11.4 --
Benzo[k]fluoranthene........................ ND<1.3 ND-16 0.6 --
Chrysene.................................... ND<1.3 ND-53 2.2-2,700 --
Dibenz [a, h] anthracene.................... ND<1.3 ND-3 4.0 --
Fluoranthene................................ ND-6.5 0.6-160 31.6-240 --
Fluorene.................................... 4.5-53 \h\ ND-40 3,600 --
Indeno[1,2,3-cd] pyrene..................... ND<1.3 ND-12 2.3 --
Naphthalene................................. 8.2-80 \h\ ND-38 34.3-4,000 --
[[Page 5327]]
Phenanthrene................................ 8.2-77 0.9-190 0-116,000 --
Pyrene...................................... ND-15 0.2-160 23-178 --
16-PAH...................................... 49-298 5-921 3,900-54,700 \ h\ 6-253
PAH (52 extractable)........................ \e\ -- -- -- 14-2,090
Pentachlorophenol........................... \g\ ND<30 ND-1 -- --
Biphenyl.................................... \e\ -- -- 1,000-1,200 --
-------------------------------------------------------------------
Total SVOC \c\.......................... 77-328 5-922 4,900-54,700 20-2,343
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compound Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene..................................... ND<0.69 -- ND-75 ND-38
Phenol...................................... \e\ -- -- ND-7,700 --
Styrene..................................... ND<0.69 -- ND-320 1.0-26
Toluene..................................... ND<0.69 -- ND-380 8.6-56
Xylenes..................................... ND<0.69 -- ND-3,100 4.0-28
Cumene...................................... \e\ -- -- 6,000-8,600 --
Ethyl benzene............................... ND<0.69 -- 22-1,270 0.7-5.4
Formaldehyde................................ \e\ -- 1.6-27 -- --
Hexane...................................... \e\ -- -- 50-10,000 --
-------------------------------------------------------------------
Total VOC \d\........................... ND<3.4 1.6-27 6,072-19,810 14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on April 3, 2013, September 11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. Contaminant data
drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and
Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This
is because minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same
sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC
group, so is not reflected here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated wood, but these are not expected to be
present in treated wood formulation being analyzed based on preservative chemistry and results from previous
CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting limit, not the method detection limit.
Therefore, there are many cases where the non-detect value may be greater than another test's detected value
due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or
analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method
reporting limit (MRL), which is always greater than MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on preservative chemistry.
\h\ EPA has generally defined ``comparable to or lower than'' to mean contaminants can be presented in NHSMs
within a small acceptable range or at lower levels, relative to the contaminants found in the traditional
fuels. Thus, fuels that are produced from nonhazardous secondary materials can have contaminants that are
somewhat higher than the traditional fuel that otherwise would be burned and still qualify as being
comparable, and would not be considered a solid waste (76 FR 15481).
As indicated, railroad ties treated with copper naphthenate have
contaminants that are comparable to or less than those in biomass/
untreated wood, fuel oil or coal. Given that these railroad ties are a
type of wood biomass material, such ties can be combusted in units
designed to burn biomass, biomass and fuel oil, or biomass and coal.
Copper Naphthenate--Borate
----------------------------------------------------------------------------------------------------------------
Copper
naphthenate-
borate railroad Biomass/
Contaminant ties untreated wood Fuel oil \b\ Coal \b\
contaminant \b\
levels \a\ \f\
----------------------------------------------------------------------------------------------------------------
Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony.................................... ND<1.4 ND-26 ND-15.7 0.5-10
Arsenic..................................... 0.52-0.72 ND-298 ND-13 0.5-174
Beryllium................................... ND<.67 ND-10 ND-19 0.1-206
Cadmium..................................... ND-0.078 ND-17 ND-1.4 0.1-19
Chromium.................................... 0.11-0.78 ND-340 ND-37 0.5-168
Cobalt...................................... ND-0.74 ND-213 ND-8.5 0.5-30
Lead........................................ ND-4.0 ND-340 ND-56.8 2-148
Manganese................................... 14-170 ND-15,800 ND-3,200 5-512
Mercury..................................... ND<0.15 ND-1.1 ND-0.2 0.02-3.1
Nickel...................................... 0.46-2.0 ND-540 ND-270 0.5-730
Selenium.................................... ND-0.52 ND-9.0 ND-4 0.2-74.3
----------------------------------------------------------------------------------------------------------------
Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine.................................... ND<100 ND-5,400 ND-1,260 ND-9,080
[[Page 5328]]
Fluorine.................................... ND<100 ND-300 ND-14 ND-178
Nitrogen.................................... ND<500 200-39,500 42-8,950 13,600-54,000
Sulfur...................................... 140-170 ND-8,700 ND-57,000 740-61,300
----------------------------------------------------------------------------------------------------------------
Semivolatile Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................ 4.8-17 ND-50 111 --
Acenaphthylene.............................. ND-0.9 ND-4 4.1 --
Anthracene.................................. ND-7.2 0.4-87 96 --
Benzo[a]anthracene.......................... ND-3.7 ND-62 41-1,900 --
Benzo[a]pyrene.............................. ND-1.4 ND-28 0.60-960 --
Benzo[b]fluoranthene........................ ND-3.9 ND-42 11-540 --
Benzo[ghi]perylene.......................... ND<1.2 ND-9 11.4 --
Benzo[k]fluoranthene........................ ND-20 \h\ ND-16 0.6 --
Chrysene.................................... ND-6.6 ND-53 2.2-2,700 --
Dibenz [a, h] anthracene.................... ND<1.2 ND-3 4.0 --
Fluoranthene................................ ND-20 0.6-160 31.6-240 --
Fluorene.................................... 2.2-16 ND-40 3,600 --
Indeno[1,2,3-cd] pyrene..................... ND<1.2 ND-12 2.3 --
Naphthalene................................. 5.2-82 \h\ ND-38 34.3-4,000 --
Phenanthrene................................ 3.6-43 0.9-190 0-116,000 --
Pyrene...................................... ND-19 0.2-160 23-178 --
16-PAH...................................... 39-145 5-921 3,900-54,700 6-253
PAH (52 extractable)........................ \e\ -- -- -- 14-2,090
Pentachlorophenol........................... \g\ ND <28 ND-1 -- --
Biphenyl.................................... \e\ -- -- 1,000-1,200 --
-------------------------------------------------------------------
Total SVOC \c\.......................... 66-173 5-922 4,900-54,700 20-2,343
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compound Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene..................................... ND<0.77 -- ND-75 ND-38
Phenol...................................... \e\ -- -- ND-7,700 --
Styrene..................................... ND<0.77 -- ND-320 1.0-26
Toluene..................................... ND<0.77 -- ND-380 8.6-56
Xylenes..................................... ND<0.77 -- ND-3,100 4.0-28
Cumene...................................... \e\ -- -- 6,000-8,600 --
Ethyl benzene............................... ND<0.77 -- 22-1,270 0.7-5.4
Formaldehyde................................ \e\ -- 1.6-27 -- --
Hexane...................................... \e\ -- -- 50-10,000 --
-------------------------------------------------------------------
Total VOC \d\........................... ND<3.8 1.6-27 6,072-19,810 14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on April 3, 2013, September 11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. Contaminant data
drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and
Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This
is because minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same
sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC
group, so is not reflected here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated wood, but these are not expected to be
present in treated wood formulation being analyzed based on preservative chemistry and results from previous
CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting limit, not the method detection limit.
Therefore, there are many cases where the non-detect value may be greater than another test's detected value
due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or
analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method
reporting limit (MRL), which is always greater than MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on preservative chemistry.
\h\ EPA has generally defined ``comparable to or lower than'' to mean contaminants can be presented in NHSMs
within a small acceptable range or at lower levels, relative to the contaminants found in the traditional
fuels. Thus, fuels that are produced from nonhazardous secondary materials can have contaminants that are
somewhat higher than the traditional fuel that otherwise would be burned and still qualify as being
comparable, and would not be considered a solid waste (76 FR 15481).
As indicated, railroad ties treated with copper naphthenate-borate
have contaminants that are comparable to or less than those in biomass/
untreated wood, fuel oil (see discussion of grouping of SVOCs, 78 FR
9146, February 7, 2013) or coal. Given that these railroad ties are a
type of treated wood biomass, such ties can be combusted in units
designed to burn biomass, or biomass and fuel oil, or biomass and coal.
Creosote-Borate
[[Page 5329]]
----------------------------------------------------------------------------------------------------------------
Creosote-
borate railroad Biomass/
Contaminant ties untreated wood Fuel oil \b\ Coal \b\
contaminant \b\
levels \a\ \f\
----------------------------------------------------------------------------------------------------------------
Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony.................................... ND<1.3 ND-26 ND-15.7 0.5-10
Arsenic..................................... ND-0.80 ND-298 ND-13 0.5-174
Beryllium................................... ND-0.032 ND-10 ND-19 0.1-206
Cadmium..................................... 0.059-0.25 ND-17 ND-1.4 0.1-19
Chromium.................................... 0.10-1.1 ND-340 ND-37 0.5-168
Cobalt...................................... ND-0.22 ND-213 ND-8.5 0.5-30
Lead........................................ ND-1.8 ND-340 ND-56.8 2-148
Manganese................................... 22-140 ND-15,800 ND-3,200 5-512
Mercury..................................... ND-0.066 ND-1.1 ND-0.2 0.02-3.1
Nickel...................................... 0.71-1.8 ND-540 ND-270 0.5-730
Selenium.................................... 0.59-1.4 ND-9.0 ND-4 0.2-74.3
----------------------------------------------------------------------------------------------------------------
Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine.................................... ND<100 ND-5,400 ND-1,260 ND-9,080
Fluorine.................................... ND<100 ND-300 ND-14 ND-178
Nitrogen.................................... ND<500 200-39,500 42-8,950 13,600-54,000
Sulfur...................................... 170-180 ND-8,700 ND-57,000 740-61,300
----------------------------------------------------------------------------------------------------------------
Semivolatile Hazardous Air Pollutants
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................ 600-2,200 ND-50 111 --
Acenaphthylene.............................. 17-96 ND-4 4.1 --
Anthracene.................................. 350-2,000 0.4-87 96 --
Benzo[a]anthracene.......................... 200-1,500 ND-62 41-1,900 --
Benzo[a]pyrene.............................. 62-500 ND-28 0.60-960 --
Benzo[b]fluoranthene........................ 110-960 ND-42 11-540 --
Benzo[ghi]perylene.......................... 13-170 ND-9 11.4 --
Benzo[k]fluoranthene........................ 40-320 ND-16 0.6 --
Chrysene.................................... 210-1,300 ND-53 2.2-2,700 --
Dibenz [a, h] anthracene.................... ND-58 ND-3 4.0 --
Fluoranthene................................ 1,100-8,400 0.6-160 31.6-240 --
Fluorene.................................... 500-2,200 ND-40 3,600 --
Indeno[1,2,3-cd] pyrene..................... 14-170 ND-12 2.3 --
Naphthalene................................. 660-2,900 ND-38 34.3-4,000 --
Phenanthrene................................ 2,000-12,000 0.9-190 0-116,000 --
Pyrene...................................... 780-5,200 0.2-160 23-178 --
16-PAH...................................... 6,600-38,000 5-921 3,900-54,700 6-253
PAH (52 extractable)........................ \e\ -- -- -- 14-2,090
Pentachlorophenol........................... \g\ ND <790 ND-1 -- --
Biphenyl.................................... \h\ 137-330 -- 1,000-1,200 --
-------------------------------------------------------------------
Total SVOC \c\.......................... 7,200-39,000 5-922 4,900-54,700 20-2,343
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compound Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene..................................... ND<3.9 -- ND-75 ND-38
Phenol...................................... \e\ -- -- ND-7,700 --
Styrene..................................... ND<3.9 -- ND-320 1.0-26
Toluene..................................... ND<3.9 -- ND-380 8.6-56
Xylenes..................................... ND<3.9 -- ND-3,100 4.0-28
Cumene...................................... \e\ -- -- 6,000-8,600 --
Ethyl benzene............................... ND<3.9 -- 22-1,270 0.7-5.4
Formaldehyde................................ \e\ -- 1.6-27 -- --
Hexane...................................... \e\ -- -- 50-10,000 --
-------------------------------------------------------------------
Total VOC \d\........................... ND<20 1.6-27 6,072-19,810 14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on September 11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. Contaminant data
drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and
Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
\c\ For SVOC contaminant analyses, grouping of contaminants is appropriate in this case when making contaminant
comparisons for purposes of meeting the legitimacy criterion. Under the grouping concept, individual SVOC
levels may be elevated above that of the traditional fuel, but the contaminant legitimacy criterion will be
met as long as total SVOCs is comparable to or less than that of the traditional fuel. Such an approach is
standard practice employed by the Agency in developing regulations and is consistent with monitoring standards
under CAA sections 112 and 129. See 78 FR 9146, February 7, 2013, for further findings that relate to the
issue of grouping contaminants. Note also, total SVOC ranges do not represent a simple sum of the minimum and
maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs
and SVOCs do not always come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC
group, so is not reflected here.
[[Page 5330]]
\e\ Cells with the ``--'' indicate analytes not tested for in treated wood, but these are not expected to be
present in treated wood formulation being analyzed based on preservative chemistry and results from previous
CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting limit, not the method detection limit.
Therefore, there are many cases where the non-detect value may be greater than another test's detected value
due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or
analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method
reporting limit (MRL), which is always greater than MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for treated wood type based on data from
previous CTRT testing.
In the contaminant comparison, EPA considered two scenarios. In the
first scenario, where a combustion unit is designed to only burn
biomass or coal, EPA compared contaminant levels in creosote-borate
treated railroad ties to contaminant levels in biomass/untreated wood
and coal. In this scenario, the total SVOC levels can reach 39,000 ppm,
driven by high levels of polycyclic aromatic hydrocarbons (PAHs).\28\
As these compounds are at very low levels in biomass/untreated wood and
coal, the contaminants are not comparable to the traditional fuel that
the unit was designed to burn.
---------------------------------------------------------------------------
\28\ We note that for several SVOCs--cresols, hexachlorobenzene,
and 2,4-dinitrotoluene, which were expected to be in creosote, and
for which information was specifically requested in the February 7,
2013 NHSM final rule (78 FR 9111), the data demonstrate that they
were not detectable, or were present at levels so low to be
considered comparable.
---------------------------------------------------------------------------
In the second scenario, a combustion unit is designed to burn both,
biomass/untreated wood and fuel oil as well as coal. As previously
mentioned, SVOCs are present in creosote-borate railroad ties (up to
39,000 ppm) at levels within the range observed in fuel oil (up to
54,700 ppm). Therefore, creosote-borate railroad ties have comparable
contaminant levels as compared to other fuels combusted in units
designed to burn both biomass/untreated wood and fuel oil, and as such,
meet this criterion if used in facilities that are designed to burn
both, biomass/untreated wood and fuel oil.\29\ Such facilities designed
to burn both biomass and fuel may also burn coal.
---------------------------------------------------------------------------
\29\ As discussed previously, the March 21, 2011 NHSM final rule
(76 FR 15456), noting the presence of hexachlorobenzene and
dinitrotoluene, suggested that creosote-treated lumber include
contaminants at levels that are not comparable to those found in
wood or coal, the fuel that creosote-treated wood would replace, and
would thus be considered solid wastes. The February 8, 2016 final
rule (81 FR 6688) differs in several respects from the conclusions
in the March 2011 rule. The February 2016 final rule concludes that
CTRTs are a categorical non-waste when combusted in units designed
to burn both fuel oil and biomass. The March 2011 rule, using 1990
data on railroad cross ties, was based on contaminant comparisons to
coal and biomass and not fuel oil. As discussed above, when compared
to fuel oil, total SVOC contaminant concentrations (which would
include dinitrotoluene and hexachlorobenzene) in CTRTs would be less
that those found in fuel oil, and in fact, the 2012 data referenced
in this final rule showed non-detects for those two contaminants.
---------------------------------------------------------------------------
As stated in the preamble to the February 7, 2013, NHSM final rule,
combustors may burn NHSMs as a product fuel if the contaminants are
comparable to or lower than a traditional fuel the unit is designed to
burn (78 FR 9149). Combustion units are often designed to burn multiple
traditional fuels, and some units can and do rely on different fuel
types at different times based on availability of fuel supplies, market
conditions, power demands, and other factors. Under these
circumstances, it is arbitrary to restrict the combustion for energy
recovery of NHSMs based on contaminant comparison to only one
traditional fuel if the unit could burn a second traditional fuel
chosen due to such changes in fuel supplies, market conditions, power
demands or other factors. If a unit can burn both a solid and liquid
fuel, then comparison to either fuel would be appropriate.
In order to make comparisons to multiple traditional fuels, units
must be designed to burn those fuels. If a facility compares
contaminants in an NHSM to a traditional fuel a unit is not designed to
burn, and that material is highly contaminated, a facility would then
be able to burn excessive levels of waste components in the NHSM as a
means of discard. Such NHSMs would be considered wastes regardless of
any fuel value (78 FR 9149, February 7, 2013).\30\ Accordingly, the
ability to burn a fuel in a combustion unit does have a basic set of
requirements, the most basic of which is the ability to feed the
material into the combustion unit. The unit must also be able to ensure
the material is well-mixed and maintain temperatures within unit
specifications.
---------------------------------------------------------------------------
\30\ 78 FR 9149 states ``If a NHSM does not contain contaminants
at levels comparable to or lower than those found in any [emphasis
added] traditional fuel that a combustion unit could burn, then it
follows that discard could be occurring if the NHSM were combusted.
Whether contaminants in these cases would be destroyed or discarded
through releases to the air, they could not be considered a normal
part of a legitimate fuel and the NHSM would be considered a solid
waste when used as a fuel in that combustion unit.''
---------------------------------------------------------------------------
Mixed Treatments--Creosote, Borate, Copper Naphthenate
----------------------------------------------------------------------------------------------------------------
Mixed railroad
ties (25%C-
25%CB- 25%CuN- Biomass/
Contaminant 25%CuNB) untreated wood Fuel oil \b\ Coal \b\
contaminant \b\
levels a f
----------------------------------------------------------------------------------------------------------------
Mixed Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony.................................... ND<1.4 ND-26 ND-15.7 0.5-10
Arsenic..................................... ND-0.81 ND-298 ND-13 0.5-174
Beryllium................................... ND<0.70 ND-10 ND-19 0.1-206
Cadmium..................................... 0.15-0.38 ND-17 ND-1.4 0.1-19
Chromium.................................... 0.15-0.17 ND-340 ND-37 0.5-168
Cobalt...................................... ND-0.07 ND-213 ND-8.5 0.5-30
Lead........................................ 0.50-0.81 ND-340 ND-56.8 2-148
Manganese................................... 110-190 ND-15,800 ND-3,200 5-512
Mercury..................................... ND-0.06 ND-1.1 ND-0.2 0.02-3.1
Nickel...................................... 0.75-1.4 ND-540 ND-270 0.5-730
Selenium.................................... ND-0.50 ND-9.0 ND-4 0.2-74.3
----------------------------------------------------------------------------------------------------------------
[[Page 5331]]
Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine.................................... ND<100 ND-5,400 ND-1,260 ND-9,080
Fluorine.................................... ND<100 ND-300 ND-14 ND-178
Nitrogen.................................... ND<500 200-39,500 42-8,950 13,600-54,000
Sulfur...................................... 140-210 ND-8,700 ND-57,000 740-61,300
----------------------------------------------------------------------------------------------------------------
Semivolatile Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................ 500-1,100 ND-50 111 --
Acenaphthylene.............................. 12-25 ND-4 4.1 --
Anthracene.................................. 290-1,100 0.4-87 96 --
Benzo[a]anthracene.......................... 140-350 ND-62 41-1,900 --
Benzo[a]pyrene.............................. 47-120 ND-28 0.60-960 --
Benzo[b]fluoranthene........................ 83-210 ND-42 11-540 --
Benzo[ghi]perylene.......................... 9.4-23 ND-9 11.4 --
Benzo[k]fluoranthene........................ 30-64 ND-16 0.6 --
Chrysene.................................... 160-360 ND-53 2.2-2,700 --
Dibenz [a, h] anthracene.................... ND-4.7 \i\ ND-3 \i\ 4.0 --
Fluoranthene................................ 800-2,100 0.6-160 31.6-240 --
Fluorene.................................... 350-1,000 ND-40 3,600 --
Indeno[1,2,3-cd] pyrene..................... 10-28 ND-12 2.3 --
Naphthalene................................. 320-580 ND-38 34.3-4,000 --
Phenanthrene................................ 1,300-3,800 0.9-190 0-116,000 --
Pyrene...................................... 520-1,400 0.2-160 23-178 --
16-PAH...................................... 4,500-12,000 5-921 3,900-54,700 6-253
PAH (52 extractable)........................ \e\ -- -- -- 14-2,090
Pentachlorophenol........................... \g\ ND ND-1 -- --
Biphenyl.................................... \h\ 137-330 -- 1,000-1,200 --
-------------------------------------------------------------------
Total SVOC \c\.......................... 4,800-13,000 5-922 4,900-54,700 20-2,343
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compounds (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene..................................... ND<1.1 -- ND-75 ND-38
Phenol...................................... \e\ -- -- ND-7,700 --
Styrene..................................... ND<1.1 -- ND-320 1.0-26
Toluene..................................... ND<1.1 -- ND-380 8.6-56
Xylenes..................................... ND<1.1 -- ND-3,100 4.0-28
Cumene...................................... \e\ -- -- 6,000-8,600 --
Ethyl benzene............................... ND<1.1 -- 22-1,270 0.7-5.4
Formaldehyde................................ \e\ -- 1.6-27 -- --
Hexane...................................... \e\ -- -- 50-10,000 --
-------------------------------------------------------------------
Total VOC \d\........................... ND<5.3 1.6-27 6,072-19,810 14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on September 11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. Contaminant data
drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and
Standards (OAQPS). SVOC values from 2013 IECP data that will be available in the rule docket. As units must be
designed to burn both fuel oil and biomass, contaminant concentrations in mixed creosote ties must be lower
than either fuel oil or biomass to be comparable.
\c\ For SVOC contaminant analyses, grouping of contaminants is appropriate in this case when making contaminant
comparisons for purposes of meeting the legitimacy criterion. Under the grouping concept, individual SVOC
levels may be elevated above that of the traditional fuel, but the contaminant legitimacy criterion will be
met as long as total SVOCs is comparable to or less than that of the traditional fuel. Such an approach is
standard practice employed by the Agency in developing regulations and is consistent with monitoring standards
under CAA sections 112 and 129. See 78 FR 9146, February 7, 2013, for further findings that relate to the
issue of grouping contaminants. Note also, total SVOC ranges do not represent a simple sum of the minimum and
maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs
and SVOCs do not always come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC
group, so is not reflected here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated wood, but these are not expected to be
present in treated wood formulation being analyzed based on preservative chemistry and results from previous
CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting limit, not the method detection limit.
Therefore, there are many cases where the non-detect value may be greater than another test's detected value
due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or
analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method
reporting limit (MRL), which is always greater than MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for treated wood type based on data from
previous CTRT testing.
[[Page 5332]]
\i\ EPA has generally defined ``comparable to or lower than'' to mean contaminants can be presented in NHSMs
within a small acceptable range or at lower levels, relative to the contaminants found in the traditional
fuels. Thus, fuels that are produced from nonhazardous secondary materials can have contaminants that are
somewhat higher than the traditional fuel that otherwise would be burned and still qualify as being
comparable, and would not be considered a solid waste (76 FR 15481).
----------------------------------------------------------------------------------------------------------------
Mixed railroad
ties (56%C-
41%CB- 1%CuN- Biomass/
Contaminant 2%CuNB) untreated wood Fuel oil \b\ Coal \b\
contaminant \b\
levels \a\ \f\
----------------------------------------------------------------------------------------------------------------
Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony.................................... ND ND-26 ND-15.7 0.5-10
Arsenic..................................... ND-0.65 ND-298 ND-13 0.5-174
Beryllium................................... ND ND-10 ND-19 0.1-206
Cadmium..................................... 0.08-0.09 ND-17 ND-1.4 0.1-19
Chromium.................................... 0.12-0.78 ND-340 ND-37 0.5-168
Cobalt...................................... ND-0.18 ND-213 ND-8.5 0.5-30
Lead........................................ ND-0.93 ND-340 ND-56.8 2-148
Manganese................................... 47-77 ND-15,800 ND-3,200 5-512
Mercury..................................... ND-0.03 ND-1.1 ND-0.2 0.02-3.1
Nickel...................................... 0.50-0.99 ND-540 ND-270 0.5-730
Selenium.................................... 0.56-0.68 ND-9.0 ND-4 0.2-74.3
----------------------------------------------------------------------------------------------------------------
Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine.................................... ND<100 ND-5,400 ND-1,260 ND-9,080
Fluorine.................................... ND<100 ND-300 ND-14 ND-178
Nitrogen.................................... ND<500 200-39,500 42-8,950 13,600-54,000
Sulfur...................................... 230-280 ND-8,700 ND-57,000 740-61,300
----------------------------------------------------------------------------------------------------------------
Semivolatile Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................ 1,500-1,800 ND-50 111 --
Acenaphthylene.............................. 31-40 ND-4 4.1 --
Anthracene.................................. 760-1,100 0.4-87 96 --
Benzo[a]anthracene.......................... 390-490 ND-62 41-1,900 --
Benzo[a]pyrene.............................. 150-200 ND-28 0.60-960 --
Benzo[b]fluoranthene........................ 230-310 ND-42 11-540 --
Benzo[ghi]perylene.......................... 28-56 ND-9 11.4 --
Benzo[k]fluoranthene........................ 93-130 ND-16 0.6 --
Chrysene.................................... 390-520 ND-53 2.2-2,700 --
Dibenz [a, h] anthracene.................... ND<28 ND-3 4.0 --
Fluoranthene................................ 2,000-2,700 0.6-160 31.6-240 --
Fluorene.................................... 1,100-1,300 ND-40 3,600 --
Indeno[1,2,3-cd] pyrene..................... 32-52 ND-12 2.3 --
Naphthalene................................. 890-1,200 ND-38 34.3-4,000 --
Phenanthrene................................ 3,600-4,500 0.9-190 0-116,000 --
Pyrene...................................... 1,300-1,800 0.2-160 23-178 --
16-PAH...................................... 13,000-16,000 5-921 3,900-54,700 6-253
PAH (52 extractable)........................ -- -- -- 14-2,090
Pentachlorophenol........................... \g\ ND ND-1 -- --
Biphenyl.................................... \h\ 137-330 -- 1,000-1,200 --
-------------------------------------------------------------------
Total SVOC \c\.......................... 13,000-17,000 5-922 4,900-54,700 20-2,343
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compounds (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene..................................... ND<2.3 -- ND-75 ND-38
Phenol...................................... \e\ -- -- ND-7,700 --
Styrene..................................... ND<2.3 -- ND-320 1.0-26
Toluene..................................... ND<2.3 -- ND-380 8.6-56
Xylenes..................................... ND<2.3 -- ND-3,100 4.0-28
Cumene...................................... \e\ -- -- 6,000-8,600 --
Ethyl benzene............................... ND<2.3 -- 22-1,270 0.7-5.4
Formaldehyde................................ \e\ -- 1.6-27 -- --
Hexane...................................... \e\ -- -- 50-10,000 --
-------------------------------------------------------------------
Total VOC \d\........................... ND<12 1.6-27 6,072-19,810 14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on September 11, 2015 and October 19, 2015.
[[Page 5333]]
\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
(insert link) https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison.
Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality
Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket. As
units must be designed to burn both fuel oil and biomass, contaminant concentrations in mixed creosote ties
must be lower than either fuel oil or biomass to be comparable.
\c\ For SVOC contaminant analyses, grouping of contaminants in this case is appropriate when making contaminant
comparisons for purposes of meeting the legitimacy criterion. Under the grouping concept, individual SVOC
levels may be elevated above that of the traditional fuel, but the contaminant legitimacy criterion will be
met as long as total SVOCs is comparable to or less than that of the traditional fuel. Such an approach is
standard practice employed by the Agency in developing regulations and is consistent with monitoring standards
under CAA sections 112 and 129. See 78 FR 9146, February 7, 2013, for further findings that relate to the
issue of grouping contaminants. Note also, total SVOC ranges do not represent a simple sum of the minimum and
maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs
and SVOCs do not always come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC
group, so is not reflected here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated wood, but these are not expected to be
present in treated wood formulation being analyzed based on preservative chemistry and results from previous
CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting limit, not the method detection limit.
Therefore, there are many cases where the non-detect value may be greater than another test's detected value
due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or
analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method
reporting limit (MRL), which is always greater than MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for treated wood type based on data from
previous CTRT testing.
\i\ To be comparable, units must be designed to burn both biomass and fuel oil or have switched from fuel oil to
natural gas. Such units may also be designed to burn coal.
In the mixed railroad ties scenarios above, as previously
discussed, SVOCs are present (up to 17,000 ppm) at levels well within
the range observed in fuel oil (up to 54,700 ppm). Therefore, railroad
ties mixed with creosote, borate and copper naphthenate have comparable
contaminant levels to biomass and fuel oil, and as such, meet this
criterion if used in combustion units that are designed to burn both of
those traditional fuels. Such units may also be designed to burn coal.
4. OTRT Sampling and Analysis Data History
The data collection supporting the OTRT categorical non-waste
determination has been based on two rounds of data submittals by TWC,
followed by EPA questions and TWC responses on the data provided. The
process of developing the data set is described below and all materials
provided by TWC are available in the docket to this rulemaking.
The TWC requested a categorical determination that all types of
treated wood were non-waste fuels and submitted data on various wood
preservative types, specifically, those referred to as OTRTs, in their
April 3, 2013 petition letter (see docket EPA-HQ-OLEM-2016-0248-0019).
However, the contaminant comparison data presented in the petition were
incomplete and not based on established analytical data. The EPA
response requested submittal of additional analytical data to determine
contaminant concentrations in the OTRT.
In November 2013, TWC responded to EPA's request, submitting
laboratory reports on analyses of various \31\ preservative wood types
and combinations, including OTRTs. The EPA reviewed the laboratory
reports and techniques, and determined that there were limited data
points available (i.e., one data point per preservative type) and that
the analytical techniques for several contaminants (chlorine, nitrogen,
sulfur, and fluorine) were not appropriate to provide information on
the entire preserved wood sample as combusted, reflecting only a
leachable component. Furthermore, EPA questioned the representativeness
of the samples being analyzed and the repeatability of the analyses.
---------------------------------------------------------------------------
\31\ Untreated, copper naphthenate, copper naphthenate and
borate, creosote, creosote and borate, combination of C/CB/CuN/CuNB
equal mixture C/CB/CuN/CuNB 56/41/1/2 percent mixture FIX.
---------------------------------------------------------------------------
In August 2015, TWC performed additional sampling and analyses to
address these deficiencies in the data. In response to EPA's concerns,
TWC developed a sampling program in which 15 OTRT railroad ties of each
preservative type were collected from various geographical areas. These
15 ties were then separated into three 5-tie groups, then processed
into a boiler-fuel consistency using commercial processing techniques.
A sample of each 5-tie group was then shipped to an independent
laboratory for analysis, thereby producing 3 data points for each
preservative type. TWC also prepared two blends: One with equal
portions of creosote, creosote-borate, copper naphthenate, and copper
naphthenate-borate to estimate projected future ratios; and the second
a weighted blend of these tie types in proportion to current usage
ratios of each preservative chemistry. These blends samples were
analyzed in triplicate, for a total of 15 samples being analyzed (i.e.,
three from each tie sample group). Two laboratories were used by TWC to
perform the analysis: One laboratory analyzed metals, mercury, semi-
volatiles, and heat of combustion; and the other laboratory analyzed
volatiles, chlorine, fluorine, and nitrogen. All methods used were EPA
or ASTM methods, and were appropriate for the materials being tested.
No specific sampling methodology was employed in taking the samples
from the 5-ties group.
The EPA reviewed the 2015 test data, which was provided by TWC on
September 11, 2015, and provided TWC with additional follow-up
questions and clarifications, including the specific sources of the
railroad ties. TWC's response noted the sources of railroad ties for
each chemistry and indicated that the railroad ties generally
originated in the southeast, but there are also ties from Pennsylvania,
South Dakota, and Kentucky represented within the TWC data set.
Chlorine is not part of any of the preservative chemistries, and was
not detected in any of the samples analyzed.
The EPA also noted some exceptions and flags within the analytical
report, such as sample coolers upon receipt at the lab were outside the
required temperature criterion; surrogate recoveries for semi-volatile
samples (which represent extraction efficiency within a sample matrix)
were sometimes lower or higher than those for samples containing
creosote-treated wood; and dilution factors (dilution is used when the
sample is higher in concentration than can be analyzed) for creosote-
treated wood samples were high (up to 800). The laboratory noted these
issues in the report narrative, but concluded that there were no
corrective actions necessary. EPA requested further information on
these issues noted in the report narrative, as well as supporting
quality assurance documentation from the laboratories.
[[Page 5334]]
With respect to surrogate recoveries and dilutions, the lab
indicated that the high dilutions were required for the creosote-
containing matrix to avoid saturation of the detector instrument.\32\
Also, the shipping cooler temperature criterion is 4 degrees Celsius
and the lab noted the discrepancy in the report as part of laboratory
standard operating procedure (see also section III. G. Responses to
Comments of this preamble). However, the ties were used and stored
after being taken out of service in ambient atmosphere and were not
biologically active, therefore, shipping cooler temperatures are not
expected to affect contaminant levels in the ties.
---------------------------------------------------------------------------
\32\ Samples with concentrations exceeding the calibration range
must be diluted to fall within the calibration range. The more a
sample is diluted, the higher the reporting limit. Sample dilution
is required when the concentration of a compound exceeds the amount
that produces a full-scale response. At that point the detector
becomes saturated and fails to respond to additional target
compound(s). Diluting samples to accommodate the high-concentrations
can reduce the concentration of the target analytes to levels where
they can no longer be detected.
---------------------------------------------------------------------------
E. Copper and Borates Literature Review and Other EPA Program Summary
Neither copper nor borate are currently listed as HAPs under the
Clean Air Act, and thus are not defined as contaminants under NHSM
regulations section 241.2. or used for contaminant comparison in
meeting legitimacy criteria (see 78 FR 9139-9143, February 7,
2013).33 34 To determine whether those compounds pose human
health or ecological risk concerns, outside the requirements of the
NHSM legitimacy criteria, and how those concerns might be addressed
under other Agency programs, we conducted a literature review of copper
and borate during development of the proposed rule. We also requested
comments or any additional information on this topic during proposal.
One comment was received on copper emissions which is discussed in
section E of this preamble.
---------------------------------------------------------------------------
\33\ CAA Section 112 requires EPA to promulgate regulations to
control emissions of 187 HAPs from sources in source categories
listed by EPA under section 112(c), while CAA section 129 CISWI
standards include numeric emission limitations for the nine
pollutants, plus opacity (as appropriate), that are specified in CAA
section 129(a)(4). For the purpose of NHSM standards, the definition
of contaminants is limited to HAPs under CAA 112 and CAA 129.
\34\ We also note that under the CAA standards for smaller area
sources, emission limits are not required for copper, borate (or for
HAPs). Standards for area sources focus on tune-ups of the boiler
unit (see 40 CFR 40 CFR part 63, subpart JJJJJJ).
---------------------------------------------------------------------------
Under the Clean Water Act, EPA's Office of Water developed the Lead
and Copper Rule which became effective in 1991 (56 FR 26460, June 7,
1991). This rule set a limit of 1.3 ppm copper concentration in 10% of
customer taps sampled as an action level for public water systems.
Exceedances of this limit require additional treatment steps in order
to reduce drinking water corrosivity and prevent leaching of these
metals (including copper) from plumbing and distribution systems. EPA's
Office of Water also issued a fact sheet for copper under the Clean
Water Act section 304(a) titled the Aquatic Life Ambient Freshwater
Quality Criteria.\35\ This fact sheet explains that copper is an
essential nutrient at low concentrations, but is toxic to aquatic
organisms at higher concentrations and listed the following industries
that contribute to manmade discharges of copper to surface waters:
Mining, leather and leather products, fabricated metal products, and
electric equipment. There are no National Recommended Aquatic Life
Criteria for boron or borates.
---------------------------------------------------------------------------
\35\ Aquatic life criteria for toxic chemicals are the highest
concentration of specific pollutants or parameters in water that are
not expected to pose a significant risk to the majority of species
in a given environment or a narrative description of the desired
conditions of a water body being ``free from'' certain negative
conditions. See https://www.epa.gov/wqc/aquatic-life-criteria-copper.
---------------------------------------------------------------------------
EPA also investigated whether there were any concerns that copper
and borate can react to form polychlorinated dibenzodioxin and
dibenzofurans (PCDD/PCDF) during the combustion process. Specific
studies evaluating copper involvement in dioxins and furans formation
in municipal or medical waste incinerator flue gas have been
conducted.\36\ While the exact mechanism and effects of other
combustion parameters on PCDD and PCDF formation are still unknown,
increased copper chloride (CuCl) and/or cupric chloride
(CuCl2) on fly ash particles has been shown to increase
concentrations of PCDD and PCDF in fly ash. Various researchers
conclude that CuCl and/or CuCl2 are serving either roles as
catalysts in dioxin formation or as chlorine sources for subsequent
PCDD/PCDF formation reactions (i.e., the CuCl and/or CuCl2
serve as dechlorination/chlorination catalysts). Overall, results from
many studies reviewed indicate that most of the copper ends up in the
bottom ash, so fly ash copper content may be minimal. Further, copper
entrained on fly ash would be co-controlled or reduced with the use of
good particulate matter controls on the combustion device. A high
performance fabric filter may be the best control device, although some
portion of fine particulate matter may pass through. Cyclone separators
and electro-static precipitators have not been shown to be effective in
controlling these emissions, and these types of controls may be more
prevalent amongst smaller area source boilers.
---------------------------------------------------------------------------
\36\ See memorandum ``Literature Review of Copper-related
Combustion Emissions Studies'' and bibliography available in the
docket to this rulemaking for specific studies and further
information on the findings from studies of copper compounds in
waste incinerators discussed in this section of the preamble.
---------------------------------------------------------------------------
Generally, borates have a low toxicity and should not be a concern
from a health risk perspective.\37\ As indicated previously, neither
boron nor borates are listed as HAPs under CAA section 112, nor are
they considered to be criteria air pollutants subject to any emissions
limitations. However, elemental boron has been identified by EPA in the
coal combustion residuals (CCR) risk analysis \38\ to present some
potential risks for ecological receptors. As a result of this risk, and
boron's ability to move through the subsurface,\39\ boron has been
included as a constituent in CCR monitoring provisions for coal ash
impoundments.
---------------------------------------------------------------------------
\37\ https://www.atsdr.cdc.gov/toxprofiles/tp26-c2.pdf.
\38\ Human and Ecological Risk Assessment of Coal Combustion
Residuals, EPA, December 2014.
\39\ See 80 FR 21302, April 17, 2015.
---------------------------------------------------------------------------
Copper has some acute human health effects, but these exposures
appear to be the result of direct drinking water or cooking-related
intake. We anticipate the only possible routes that copper releases to
the environment could result from burning copper naphthenate treated
ties would be stormwater runoff from the ties during storage and
deposition from boiler emissions. As mentioned earlier, the majority of
copper in combusted material appears to remain in the bottom ash, so
human health effects from inhalation of fly ash and environmental
effects from deposition of copper-containing fly ash are likely very
low. Further, the amount of copper remaining in the railroad tie after
its useful life may be greatly reduced from the original content due to
weathering, and facilities manage the processed shredded railroad tie
material in covered areas to prevent significant moisture swings.
Therefore, we do not expect impacts from copper in stormwater runoff
from the storage of the copper naphthenate treated ties.
F. Summary of Comments Requested
The Agency solicited comments in the proposed rule on non-waste
fuel categorical determinations as described previously. The Agency
also specifically requested comments on the following:
[[Page 5335]]
Whether railroad ties with de minimis levels of creosote
should be allowed to be combusted in biomass only units;
Should a particular de minimis level should be designated
and on what should this level be based;
Whether these OTRTs are combusted in units designed to
burn coal in lieu of, or in addition to biomass and fuel oil, and
whether the contaminant comparisons to meet legitimacy criteria should
include comparisons to coal;
In light of the data and sampling history described above,
whether the quality of data is adequate to support the proposed
determination;
Additional data that should be considered in making the
comparability determinations for OTRT.
Additional information on the copper borate literature
review.
G. Responses to Comments
Summaries of comments received in response to solicitations listed
above are presented below, along with EPA's responses to the comments.
All additional comments received are addressed in EPA's Response to
Comments document, located in the docket EPA-HQ-OLEM-2016-0248.
1. De Minimis Levels of Creosote
For purposes of contaminant comparisons under NHSM, contaminants in
railroad ties treated with creosote-borate and mixtures of creosote,
copper naphthenate and copper naphthenate-borate treated railroad ties
are not comparable to those contaminants found in biomass. Contaminants
in such railroad ties would, however, be comparable to contaminants in
fuel oil. Accordingly, such ties are categorical non-wastes fuels only
when they are processed and then combusted in: (i) Units designed to
burn both biomass and fuel oil and (ii) units at major source pulp and
paper mills or power producers that had been designed to burn biomass
and fuel oil, but are modified in order to use natural gas instead of
fuel oil. Mixtures of treated railroad ties containing creosote cannot
be combusted in biomass only units. The Agency requested comment as to
whether OTRTs used as fuel containing de minimis levels of creosote,
should be allowed to be combusted in biomass only units, and if so,
what should the level be based on.
Comments: One commenter supported a de minimis exception, but did
not propose any specific levels that the exception would be based on.
The commenter stated that there was no practical method for
establishing with certainty the minimal amount of creosote that will be
present after processing and cited previous determinations discussed
above. Another commenter opposed a de minimis exception stating that
the Agency has proposed no rationale for such an action and it is
unclear what statute or requirements that the Agency was requesting an
exception from. The commenter also cited court decisions that
emphasized that a unit burning any solid waste was a solid waste
incineration unit (see NRDC v. EPA, 489 F. 3d 1250, 1257-60 (D.C. Cir.
2007).
Response: De minimis contaminant levels have been addressed in
previous NHSM rules. The 2011 final rule stated that C&D wood that has
been processed to remove contaminants prior to burning (e.g., lead-
painted wood, and treated wood containing contaminants such as arsenic
and chromium, metals and other non-wood materials), likely meets the
processing standard and legitimacy criteria, and can be combusted as a
non-waste fuel. The 2011 rule further stated that such C&D wood may
contain de minimis amounts of contaminants and other materials after
processing provided it meets the legitimacy criteria for contaminant
level comparison. The February 2016 final rule specifically codified a
de minimis approach for removal of painted wood from C&D wood stating
that all painted wood must be excluded to the extent that only de
minimis quantities inherent to the processing limitations may remain
from the final product fuel (81 FR 6743, February 8, 2016).
De minimis levels for OTRTs when combusted with creosote treated
railroad ties (CTRTs) were also addressed in the February 2016 final
NHSM rule (81 FR 6738, February 8, 2016). As discussed in the preamble,
TWC had requested that the Agency move forward on a subset of materials
(i.e., OTRTs) that were identified in their original April 2013
petition. As these treatments were just coming into use, concern was
expressed that the presence of small amounts of OTRTs, which were not
categorically listed non-waste fuels, that may have been processed with
CTRTs would render all of that material solid wastes since OTRTs are
not included in the February 2016 categorical determination. The Agency
concluded that, consistent with the determination in the March 2011
rule (76 FR 15486), small (de minimis) amounts of OTRTs would not
result in determinations that the CTRTs being combusted are solid
wastes.
The processing of OTRTs is similar to CTRTs (e.g., removal of
contaminant metals using magnets, improvement of fuel characteristics
through grindings or shredding) and is conducted by the approximately
15 treated wood reclamation companies in North America. These systems
that may process mixtures of both CTRT and OTRT may result in the
presence of de minimis levels of cresosote in processed railroad ties
treated with copper naphthenate and copper-naphthenate borate.
Regarding a definition for de minimis amounts of contaminants
remaining in OTRT, the agency stated in the February 2013 NHSM rule
that it was not appropriate to identify specific concentration levels.
Rather, the agency interprets de minimis as that term is commonly
understood; (i.e., insignificant or negligible amounts of contamination
such as small wood sliver containing lead paint \40\).
---------------------------------------------------------------------------
\40\ See 78 FR 9139, February 7, 2013.
---------------------------------------------------------------------------
Based on the factors discussed above, the Agency has concluded,
that OTRT containing de minimis levels (i.e., insignificant or
negligible amounts) of creosote railroad ties, in mixture combinations
with the other ORTS, can be combusted in biomass only units provided it
meets the legitimacy criteria for contaminant levels (i.e.,
concentration levels of contaminants in the processed OTRT are
comparable to or less than the levels in biomass.
2. Inclusion of Coal
Comment: Regarding whether the OTRTs considered in this rulemaking
are combusted in units designed to burn coal (in lieu of or in addition
to biomass and fuel oil), one commenter indicated that, although they
were unaware of any cement kilns currently combusting OTRTs, cement
kilns have burned OTRTs, and cement kilns can burn a range of
materials, including biomass and coal. Another commenter requested that
EPA include comparisons to the traditional fuel in its analysis. The
commenter reported that contaminant comparisons to coal would show that
the categorical non-waste fuel definition of OTRTs should be expanded
to include OTRTs burned in units designed to burn coal or units
designed to burn coal and fuel oil.
Specifically, the commenter noted the following:
For the copper naphthenate treated ties, the maximum
contaminant levels in coal are higher for all contaminants except
naphthalene and 16-PAHs. However, the semi-volatile organic compound
(SVOC) grouping level (which includes naphthalene and 16-PAHs) is
higher for coal than copper naphthenate treated ties.
[[Page 5336]]
For the copper naphthenate-borate treated ties, the
contaminant levels in coal are higher for all contaminants except
naphthalene. However, the SVOC grouping level (which includes
naphthalene) is higher for coal than copper naphthenate-borate treated
ties.
For the creosote-borate treated ties, the contaminant
levels in coal are higher for all contaminants except naphthalene,
biphenyl, 16-PAHs, and the SVOC grouping overall. However, the SVOC
grouping contaminant level is higher for fuel oil than creosote-borate
treated ties.
The commenter requested that EPA expand the proposed non-waste fuel
definition, based on these results, to include copper naphthenate and
copper naphthenate-borate treated ties combusted in units designed to
burn coal during normal operations. The commenter further requested
that EPA include creosote-borate treated ties combusted in units
designed to burn coal and fuel oil during normal operations.
Response: EPA has added coal to the contaminant comparisons of
OTRTs to traditional fuels as well as adding specific regulatory
language. Specifically, contaminants in OTRTs are presented in
comparison to those in coal and other traditional fuels in the tables
in section III.D.3.iii of this preamble, and wording has been added to
the regulatory language in Sec. 241.4(a)(8)-(10).
Thus, EPA is listing the following OTRTs as categorical non-waste
fuels:
Copper naphthenate treated railroad ties combusted in
units designed to burn biomass only, biomass and fuel oil, or biomass
and coal.
Copper naphthenate-borate treated railroad ties combusted
in units designed to burn biomass only, biomass and fuel oil or biomass
and coal.
Creosote-borate treated railroad ties (and mixtures of
creosote, borate and copper naphthenate treated railroad ties)
combusted only in units designed to burn both biomass and fuel oil, or
units that have switched to natural gas from fuel oil; and where such
units may also be designed to burn coal.
3. Sampling and Data Quality Concerns
Comment: Regarding the data used to support these non-waste
determinations, one commenter stated that the data were insufficient.
The commenter argued that only three data points were used and that
statistical techniques to address variability were not applied.
Response: EPA disagrees with the commenter that the data were
insufficient. A total of 18 grab samples were analyzed, and sample ties
were comingled with ties originating from numerous manufacturing
locations in multiple states in order to represent actual processing.
All data and sampling procedures exceptions were addressed by the
company and were within normal operating and analytical parameters
(i.e., no corrective actions were deemed necessary to validate the
data). Thus, EPA agrees that the sampling results submitted were
appropriate for use in comparing contaminant levels with those in
comparable traditional fuels.
To address the commenter's concerns regarding variability, EPA has
reviewed the TWC 2015 data presented in the petition and calculated the
90, 95, and 99 percent upper prediction limits (UPLs) for contaminants
listed in the comparison charts to see how they compare with the TWC's
data. EPA calculated UPLs for metals, sulfur, naphthalene, and 16-
PAH.\41\ The UPL calculation methodology and results are presented in
the memo ``Contaminant Data UPL Calculations for Other Treated Railroad
Ties (OTRTs)'' found in the docket for this rulemaking. For copper
naphthenate and copper naphthenate-borate treated ties, contaminant
levels at the 99 percent UPL fell within the corresponding contaminant
ranges for biomass and fuel oil. For creosote-borate treated ties,
SVOCs (naphthalene and 16-PAH) are the only contaminants at the 99
percent UPL that does not fall within the range of SVOC concentrations
found in biomass or fuel oil. At the 95 percent UPL, all three OTRTs
are within the biomass and fuel oil contaminant ranges. EPA therefore
believes that variability in the data has been sufficiently accounted
for in the contaminant comparisons.
---------------------------------------------------------------------------
\41\ Cl, F and N were not detected in any of the analyses, so
with equal detection limits for each data point, no UPL value could
be calculated for these three contaminants.
---------------------------------------------------------------------------
Comment: One commenter stated that more sensitive testing should
have been done to determine if pentachlorophenol was present in the
cases where it was tested for but results were below method detection
limit (MDL). The commenter noted that if high enough, pentachlorophenol
levels could render discarded railroad ties hazardous waste, which
would require a facility combusting the material to be regulated as a
hazardous waste combustor.
Response: EPA has evaluated the comment against the data available,
and does not agree that more sensitive testing for pentachlorophenol is
necessary for the three OTRTs and mixtures analyzed and discussed in
the proposal. As noted in the proposal, pentachlorophenol is a distinct
preservative type used by the industry; it is not one of the
preservatives being presented in the data of the proposal, nor is it
expected to be present in any of the preservative types being
considered under the OTRT rulemaking. Pentachlorophenol has a
distinctly different chemical structure than any of the preservatives
being currently considered under the OTRT rulemaking. First, none of
the preservatives being considered contain chlorine as part of the
chemical structure. Pentachlorophenol, as the name suggests, contains 5
chlorine atoms attached to a phenolic base. In the case of the OTRT
samples, chlorine, in addition to pentachlorophenol, was found to be
non-detect at a level of 100 ppm (dry basis), which is at the lower
range of chlorine content values found in untreated wood.
Second, as also discussed in the proposed rulemaking preamble, the
dilution amounts used for semivolatile (which behave similarly to
pentachlorophenol) was necessarily larger for the creosote-containing
preservative mixes, which influenced the detection levels for
semivolatile analytes. The detection levels for pentachlorophenol
follow this trend, where the copper naphthenate and copper naphthenate-
borate pentachlorophenol method reporting limits are 30 and 28 ppm,
respectively, and the mixtures with creosote being an order of
magnitude higher. This increase in the method reporting limit for these
creosote-containing samples is not an indication that pentachlorophenol
is present in the creosote-containing samples, but more of procedural
necessity due to the method and the equipment used for the analysis, as
the laboratory pointed out in their results narrative.
4. Additional Data for Copper and Borates Literature Review
As discussed in the OTRT proposal, direct stormwater runoff from
material storage and deposition from boiler emissions are expected to
be the only paths for copper to be released to the environment from
burning copper naphthenate treated ties. Additionally, there is
evidence that copper in the presence of chlorine could lead to
polychlorinated dioxin/furan (PCDD/PCDF) through a reaction pathway
involving CuCl and CuCl2. EPA stated in the proposal that
copper emissions from units burning these ties would be controlled in
the units' air pollution control devices.
[[Page 5337]]
Comment: Area sources may not have any PM control requirements
under the area source boilers rule. Emission limits for copper, borate,
or HAPs are not required under CAA standards for smaller area sources
(standards for area sources focus on tune-ups of the boiler unit).
Response: EPA stated in the proposal that copper emissions from
units burning these ties would be controlled in the units' air
pollution control devices. While such controls are required for major
sources of HAPs, EPA agrees with the commenter that emission controls
for area source are not required. However, as stated previously, copper
is not a HAPs and is therefore not subject to regulation under CAA
sections 112 (nor is it a pollutant listed under CAA section 129). NHSM
rule limits the definition of ``contaminant'' to the HAPs covered under
CAA 112 and 129. CAA 112 lists 187 HAPs from sources in source
categories, and CAA section 129 CISWI standards include numeric
emission limitations for the nine pollutants, plus opacity (as
appropriate), that are specified in CAA section 129(a)(4).
IV. Effect of This Final Rule on Other Programs
Beyond expanding the list of NHSMs that categorically qualify as
non-waste fuels, this rule does not change the effect of the NHSM
regulations on other programs as described in the March 21, 2011 NHSM
final rule (76 FR 15456), as amended on February 7, 2013 (78 FR 9138)
and February 8, 2016 (81 FR 6688). Refer to section VIII of the
preamble to the March 21, 2011 NHSM final rule \42\ for the discussion
on the effect of the NHSM rule on other programs.
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\42\ 76 FR 15456, March 21, 2011 (page 15545).
---------------------------------------------------------------------------
V. State Authority
A. Relationship to State Programs
This final rule does not change the relationship to state programs
as described in the March 21, 2011 NHSM final rule. Refer to section IX
of the preamble to the March 21, 2011 NHSM final rule \43\ for the
discussion on state authority including, ``Applicability of State Solid
Waste Definitions and Beneficial Use Determinations'' and
``Clarifications on the Relationship to State Programs.'' The Agency,
however, would like to reiterate that this final rule (like the March
21, 2011 and the February 7, 2013 final rules) is not intended to
interfere with a state's program authority over the general management
of solid waste.
---------------------------------------------------------------------------
\43\ 76 FR 15456, March 21, 2011 (page 15546).
---------------------------------------------------------------------------
B. State Adoption of the Rulemaking
No federal approval procedures for state adoption of this final
rule are included in this rulemaking action under RCRA subtitle D.
While states are not required to adopt regulations promulgated under
RCRA subtitle D, some states incorporate federal regulations by
reference or have specific state statutory requirements that their
state program can be no more stringent than the federal regulations. In
those cases, the EPA anticipates that, if required by state law, the
changes being made in this document will be incorporated (or possibly
adopted by authorized state air programs) consistent with the state's
laws and administrative procedures.
VI. Costs and Benefits
As discussed in previous sections, this final rulemaking
establishes a categorical non-waste determination for OTRT. The
determination allows OTRTs to be combusted as a product fuel in units
subject to the CAA section 112 emission standards (provided the
conditions of the categorical listing are met) without being subject to
a detailed case-by-case analysis of the material by individual
combustion facilities. The rule provides additional clarity and
direction for generators, potential users and owners or operators of
combustion facilities.
The proposed OTRT rule stated that the action was definitional in
nature, and any costs or benefits accrued to the corresponding Clean
Air Act rules. In accordance with the Office of Management and Budget
(OMB) Circular A-4 requirement that EPA analyze the costs and benefits
of regulations, EPA prepared an economic assessment (EA) document \44\
for the proposal that examined the scope of indirect impacts for both
costs and benefits.
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\44\ U.S. EPA, Office of Resource Conservation and Recovery,
``Assessment of the Potential Costs, Benefits and Other Impacts for
the Proposed Rule: Categorical Non-Waste Determination for Selected
Non-Hazardous Secondary Materials (NHSMs) Creosote Borate Treated
Railroad Ties, Copper Naphthenate Treated Railroad Ties and Copper
Naphthenate-Borate Treated Railroad Ties'' EPA Docket Number: EPA-
HQ-OLEM-2016-0248.
---------------------------------------------------------------------------
Based on public comments, information from stakeholders and the
Executive Order 13771 signed January 30, 2017, the Agency has expanded
the EA for the final rule to take into account additional cost savings.
In considering this information, EPA determined that the final OTRT
rule EA should consider the potential aggregate cost savings to
industry when these materials are regulated as non-waste fuels (because
of this rulemaking), rather than as solid waste. In addition, the
Agency is ensuring that its cost benefit analysis is consistent with
the OMB guidance for E.O. 13771. To do that, we made necessary
adjustments to the final OTRT rule EA.\45\
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\45\ U.S. EPA, Office of Resource Conservation and Recovery,
``Assessment of the Potential Costs, Benefits and Other Impacts for
the Final Rule: Categorical Non-Waste Determination for Selected
Non-Hazardous Secondary Materials (NHSMs) Creosote Borate Treated
Railroad Ties, Copper Naphthenate Treated Railroad Ties and Copper
Naphthenate-Borate Treated Railroad Ties'' EPA Docket Number: EPA-
HQ-OLEM-2016-0248.
---------------------------------------------------------------------------
For purposes of the final rule EA, combustion facilities that wish
to add OTRT to their fuel mix now or in the future are assumed to
operate under CAA 112 standards. OTRTs currently represent a small
fraction of treated railroad ties combusted for fuel, but that amount
will increase over time. The EA concludes that absent the final
categorical rule, OTRT would be considered a solid waste and combustion
facilities that wish to add OTRT to their fuel mix would have to incur
the costs associated with upgrading to section 129.
The EA concludes that the categorical rule, which designates OTRT
as non-wastes under certain conditions, results in a cost savings from
these avoided costs of section 129 upgrades for facilities adding OTRT
to the fuel mix. The unit-level cost savings were estimated, on
average, to be approximately $266,000 per year. EPA estimates that
industry-wide undiscounted costs savings from not having to operate
under CAA Section 129 regulations when combusting these OTRTs for
energy on the magnitude of between $3.1 million and $24 million
annually over the next 20 years. In addition, the assessment indicated
that the increased regulatory clarity associated with the action could
stimulate increased product fuel use for one or more of these NHSMs,
potentially resulting in upstream life cycle benefits associated with
reduced extraction of selected virgin materials.
Another, more likely scenario is also addressed in the EA, where,
absent a categorical non-waste fuel determination for OTRTs, combustors
decide not to combust OTRTs and do not perform any air pollution
control upgrades to meet section 129 standards. In this scenario, OTRTs
are instead disposed of in landfills and virgin biomass is purchased by
the combustor to make up for the additional heat content that OTRTs
would provide. EPA
[[Page 5338]]
estimates that the undiscounted costs avoided by the final rule of
landfilling the OTRT, is between $190,000 and $1.4 million annually
over the next 20 years. Looking at these two scenarios and applying a
7% discount rate, EPA estimates that the present value range of cost
savings for this rule over 20 years are approximately $6.9 million on
the low end (landfilling) and approximately $110 million on the high
end (avoided air pollution control upgrades).
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review because it may
raise novel policy issues. Any changes made in response to OMB
recommendations have been documented in the docket. The EPA prepared an
economic analysis of the potential costs and benefits associated with
this action. This analysis, ``Assessment of the Potential Costs,
Benefits, and Other Impacts for the Final Rule--Categorical Non-Waste
Determination for Selected Non-Hazardous Secondary Materials (NHSMs):
Creosote-Borate Treated Railroad Ties, Copper Naphthenate Treated
Railroad Ties, and Copper Naphthenate-Borate Treated Railroad Ties,''
is available in the docket. Interested persons were asked to submit
comments on this document but none were received.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is considered an Executive Order 13771 deregulatory
action. Details on the estimated cost savings of this final rule can be
found in EPA's analysis of the potential costs and benefits associated
with this action.
C. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA as this action only adds three new categorical non-waste
fuels to the NHSM regulations. OMB has previously approved the
information collection activities contained in the existing regulations
and has assigned OMB control number 2050-0205.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. The addition of three NHSMs to the list
of categorical non-waste fuels is expected to indirectly reduce
materials management costs. In addition, this action will reduce
regulatory uncertainty associated with these materials and help
increase management efficiency. We have therefore concluded that this
action will relieve regulatory burden for all directly regulated small
entities.
E. Unfunded Mandates Reform Act (UMRA)
This action contains no Federal mandates as described in UMRA, 2
U.S.C. 1531-1538, and does not significantly or uniquely affect small
governments. UMRA generally excludes from the definition of ``Federal
intergovernmental mandate'' duties that arise from participation in a
voluntary Federal program. Affected entities are not required to manage
the final additional NHSMs as non-waste fuels. As a result, this action
may be considered voluntary under UMRA. Therefore, this action is not
subject to the requirements of section 202 or 205 of the UMRA
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. In addition, this
proposal will not impose direct compliance costs on small governments.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will neither impose substantial direct
compliance costs on tribal governments, nor preempt Tribal law.
Potential aspects associated with the categorical non-waste fuel
determinations under this final rule may invoke minor indirect tribal
implications to the extent that entities generating or consolidating
these NHSMs on tribal lands could be affected. However, any impacts are
expected to be negligible. Thus, Executive Order 13175 does not apply
to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in the Executive Order 12866,
and because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. Based on the following discussion, the Agency found that
populations of children near potentially affected boilers are either
not significantly greater than national averages, or in the case of
landfills, may potentially result in reduced discharges near such
populations.
The final rule, in conjunction with the corresponding CAA rules,
may indirectly stimulate the increased fuel use of one or more the
three NHSMs by providing enhanced regulatory clarity and certainty.
This increased fuel use may result in the diversion of a certain
quantity of these NHSMs away from current baseline management
practices, which is assumed to be landscape use or being sent to
landfills. Some crossties may also go to CISWI units. Any corresponding
disproportionate impacts among children would depend upon whether
children make up a disproportionate share of the population living near
the affected units. Therefore, to assess the potential indirect
disproportionate effect on children, we conducted a demographic
analysis for this population group surrounding CAA section 112 major
source boilers, municipal solid waste landfills, and construction and
demolition (C&D) landfills for the Major and Area Source Boilers rules
and the CISWI rule.\46\ We assessed the share of the population under
the age of 18 living within a three-mile (approximately five
kilometers) radius of these facilities.
[[Page 5339]]
Three miles has been used often in other demographic analyses focused
on areas around industrial sources.\47\
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\46\ The extremely large number of area source boilers and a
lack of site-specific coordinates prevented us from assessing the
demographics of populations located near area sources. In addition,
we did not assess child population percentages surrounding cement
kilns that may use CTRTs/OTRTs for their thermal value.
\47\ The following publications which have provided demographic
information using a 3-mile or 5-kilometer circle around a facility:
* U.S. GAO (Government Accountability Office). Demographics of
People Living Near Waste Facilities. Washington DC: Government
Printing Office 1995.
** Mohai P, Saha R. ``Reassessing Racial and Socio-economic
Disparities in Environmental Justice Research''. Demography.
2006;43(2): 383-399.
** Mennis, Jeremy ``Using Geographic Information Systems to
Create and Analyze Statistical Surfaces of Population and Risk for
Environmental Justice Analysis'' Social Science Quarterly, 2002,
83(1):281-297.
** Bullard RD, Mohai P, Wright B, Saha R et al., Toxic Wastes
and Race at Twenty, 1987-2007, March 2007. 5 CICWI Rule and Major
Source Boilers Rule.
---------------------------------------------------------------------------
For major source boilers, our findings indicate that the percentage
of the population in these areas under age 18 years is generally the
same as the national average.\48\ In addition, while the fuel source
and corresponding emission mix for some of these boilers may change as
an indirect response to this rule, emissions from these sources would
remain subject to the protective CAA section 112 standards. For
municipal solid waste and C&D landfills, we do not have demographic
results specific to children. However, using the population below the
poverty level as a rough surrogate for children, we found that within
three miles of landfills that may experience diversions of one or more
of these NHSMs, low-income populations, as a percent of the total
population, are disproportionately high relative to the national
average. Thus, to the extent that these NHSMs are diverted away from
municipal solid waste or C&D landfills, any landfill-related emissions,
transportation, discharges, or other negative activity potentially
affecting low-income (children) populations living near these units are
likely to be reduced. Finally, transportation emissions associated with
the diversion of some of this material away from landfills to boilers
are likely to be generally unchanged.
---------------------------------------------------------------------------
\48\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
---------------------------------------------------------------------------
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not ``significant energy action'' because it is not
likely to have a significance adverse effect on the supply,
distribution or use of energy. The selected NHSMs affected by this
final action are not generated in quantities sufficient to
significantly (adversely or positively) impact the supply,
distribution, or use of energy at the national level.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
This is because the overall level of emissions, or the emissions mix
from boilers, are not expected to change significantly because the
three NHSMs categorically listed as non-waste fuels are generally
comparable to the types of fuels that these combustors would otherwise
burn. Furthermore, these units remain subject to the protective
standards established under CAA section 112.
Our environmental justice demographics assessment conducted for the
prior rulemaking \49\ remains relevant to this action. This assessment
reviewed the distributions of minority and low-income groups living
near potentially affected sources using U.S. Census blocks. A three-
mile radius (approximately five kilometers) was examined in order to
determine the demographic composition (e.g., race, income, etc.) of
these blocks for comparison to the corresponding national compositions.
Findings from this analysis indicated that populations living within
three miles of major source boilers represent areas with minority and
low-income populations that are higher than the national averages. In
these areas, the minority share \50\ of the population was 33 percent,
compared to the national average of 25 percent. For these same areas,
the percent of the population below the poverty line (16 percent) was
higher than the national average (13 percent).
---------------------------------------------------------------------------
\49\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
\50\ This figure is for overall population minus white
population and does not include the Census group defined as ``White
Hispanic.''
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In addition to the demographics assessment described previously, we
also considered the potential for non-combustion environmental justice
concerns related to the potential incremental increase in NHSMs
diversions from current baseline management practices. These may
include the following:
Reduced upstream emissions resulting from the reduced
production of virgin fuel: Any reduced upstream emissions that may
indirectly occur in response to reduced virgin fuel mining or
extraction may result in a human health and/or environmental benefit to
minority and low-income populations living near these projects.
Alternative materials transport patterns: Transportation
emissions associated with NHSMs diverted from landfills to combustion
units are likely to be similar.
Change in emissions from baseline management units: The
diversion of some of these NHSMs away from disposal in landfills may
result in a marginal decrease in activity at these facilities. This may
include non-adverse impacts, such as marginally reduced emissions,
odors, groundwater and surface water impacts, noise pollution, and
reduced maintenance cost to local infrastructure. Because municipal
solid waste and C&D landfills were found to be located in areas where
minority and low-income populations are disproportionately high
relative to the national average, any reduction in activity and
emissions around these facilities is likely to benefit the citizens
living near these facilities.
Finally, this rule, in conjunction with the corresponding CAA
rules, may help accelerate the abatement of any existing stockpiles of
the targeted NHSMs. To the extent that these stockpiles may represent
negative human health or environmental implications, minority and/or
low-income populations that live near such stockpiles may experience
marginal health or environmental improvements. Aesthetics may also be
improved in such areas.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 241
Environmental protection, Air pollution control, Non-hazardous
[[Page 5340]]
secondary materials, Waste treatment and disposal.
Dated: January 26, 2018.
E. Scott Pruitt,
Administrator.
For the reasons stated in the preamble, EPA is amending title 40,
chapter I, of the Code of Federal Regulations as follows:
PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION
UNITS
0
1. The authority citation for part 241 continues to read as follows:
Authority: 42 U.S.C. 6903, 6912, 7429.
0
2. Section 241.2 is amended by adding in alphabetical order the
definitions ``Copper naphthenate treated railroad ties'', ``Copper
naphthenate-borate treated railroad ties'', and ``Creosote-borate
treated railroad ties'' to read as follows:
Sec. 241.2 Definitions.
* * * * *
Copper naphthenate treated railroad ties means railroad ties
treated with copper naphthenate made from naphthenic acid and copper
salt.
Copper naphthenate-borate treated railroad ties means railroad ties
treated with copper naphthenate and borate, including borate made from
disodium octaborate tetrahydrate.
* * * * *
Creosote-borate treated railroad ties means railroad ties treated
with a wood preservative containing creosols and phenols and made from
coal tar oil and borate, including borate made from disodium octaborate
tetrahydrate.
* * * * *
0
3. Section 241.4 is amended by adding paragraphs (a)(8) through (10) to
read as follows:
Sec. 241.4 Non-Waste Determinations for Specific Non-Hazardous
Secondary Materials When Used as a Fuel.
(a) * * *
(8) Creosote-borate treated railroad ties, and mixtures of
creosote, borate and/or copper naphthenate treated railroad ties that
are processed and then combusted in the following types of units.
Processing must include, at a minimum, metal removal and shredding or
grinding.
(i) Units designed to burn both biomass and fuel oil as part of
normal operations and not solely as part of start-up or shut-down
operations; and
(ii) Units at major source pulp and paper mills or power producers
subject to 40 CFR part 63, subpart DDDDD, designed to burn biomass and
fuel oil as part of normal operations and not solely as part of start-
up or shut-down operations, but are modified (e.g., oil delivery
mechanisms are removed) in order to use natural gas instead of fuel
oil, The creosote-borate and mixed creosote, borate and copper
naphthenate treated railroad ties may continue to be combusted as
product fuel under this subparagraph only if the following conditions
are met, which are intended to ensure that such railroad ties are not
being discarded:
(A) Creosote-borate and mixed creosote, borate and copper
naphthenate treated railroad ties must be burned in existing (i.e.,
commenced construction prior to April 14, 2014) stoker, bubbling bed,
fluidized bed, or hybrid suspension grate boilers; and
(B) Creosote-borate and mixed creosote, borate and copper
naphthenate treated railroad ties can comprise no more than 40 percent
of the fuel that is used on an annual heat input basis.
(iii) Units meeting requirements in paragraph (a)(8)(i) or (ii) of
this section that are also designed to burn coal.
(9) Copper naphthenate treated railroad ties that are processed and
then combusted in units designed to burn biomass, biomass and fuel oil,
or biomass and coal. Processing must include at a minimum, metal
removal, and shredding or grinding.
(10) Copper naphthenate-borate treated railroad ties that are
processed and then combusted in units designed to burn biomass, biomass
and fuel oil, or biomass and coal. Processing must include at a
minimum, metal removal, and shredding or grinding.
* * * * *
[FR Doc. 2018-02337 Filed 2-6-18; 8:45 am]
BILLING CODE 6560-50-P