[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Proposed Rules]
[Pages 75781-75801]
[FR Doc No: 2016-26381]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to issue amendments to the Non-Hazardous Secondary Materials
rule, initially promulgated on March 21, 2011, and amended on February
7, 2013 and February 8, 2016, under the Resource Conservation and
Recovery Act. The Non-Hazardous Secondary Materials rule generally
established standards and procedures for identifying whether non-
hazardous secondary materials are solid wastes when used as fuels or
ingredients in combustion units. In the February 7, 2013 amendments,
the EPA listed particular non-hazardous secondary materials as
``categorical non-waste fuels'' provided certain conditions are met.
Persons burning these non-hazardous secondary materials do not need to
evaluate them under the general self-implementing case-by-case
standards and procedures that would otherwise apply to non-hazardous
secondary materials used in combustion units. The February 8, 2016
amendments added three materials including creosote treated railroad
ties to the list of categorical non-waste fuels. This action proposes
to add other treated railroad ties to the list, which are processed
creosote-borate, copper naphthenate and copper naphthenate-borate
treated railroad ties, under certain conditions depending on the
chemical treatment.

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

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

FOR FURTHER INFORMATION CONTACT: George Faison, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460; telephone number:<PHONE_NUMBER>;
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    The following outline is provided to aid in locating information in
this preamble.

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

IV. Effect of This Proposal on Other Programs
V. State Authority
    A. Relationship to State Programs
    B. State Adoption of the Rulemaking
VI. Cost and Benefits
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

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

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

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

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

C. Does this proposed rule apply to me?

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

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

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

D. What is the purpose of this proposed rule?

    The RCRA statute defines ``solid waste'' as ``any garbage, refuse,
sludge from a waste treatment plant, water supply treatment plant, or
air pollution control facility and other discarded material . . .
resulting from industrial, commercial, mining, and agricultural
operations, and from community

activities.'' (RCRA section 1004(27) (emphasis added)). The key concept
is that of ``discard'' and, in fact, this definition turns on the
meaning of the phrase, ``other discarded material,'' since this term
encompasses all other examples provided in the definition.
    The meaning of ``solid waste,'' as defined under RCRA, is of
particular importance as it relates to section 129 of the CAA. If
material is a solid waste under RCRA, a combustion unit burning it is
required to meet the CAA section 129 emission standards for solid waste
incineration units. If the material is not a solid waste, combustion
units are required to meet the CAA section 112 emission standards for
commercial, industrial, and institutional boilers. Under CAA section
129, the term ``solid waste incineration unit'' is defined, in
pertinent part, to mean ``a distinct operating unit of any facility
which combusts any solid waste material from commercial or industrial
establishments.'' 42 U.S.C. 7429(g)(1). CAA section 129 further states
that the term ``solid waste'' shall have the meaning ``established by
the Administrator pursuant to the Solid Waste Disposal Act.'' Id at
7429(g)(6). The Solid Waste Disposal Act, as amended, is commonly
referred to as the Resource Conservation and Recovery Act or RCRA.
    Regulations concerning NHSMs used as fuels or ingredients in
combustion units are codified in 40 CFR part 241.\1\ This action
proposes to amend the Part 241 regulations by adding three NHSMs to the
list of categorical non-waste fuels codified in Sec.  241.4(a). These
new proposed categorical listings are for:
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    \1\ See 40 CFR 241.2 for the definition of non-hazardous
secondary material.
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     Creosote-borate railroad ties (and mixtures of creosote,
copper naphthenate and copper naphthenate-borate railroad ties) that
are processed and then combusted in units designed to burn both biomass
and fuel oil. Such combustion must be part of normal operations and not
solely as part of start-up or shut-down operations. Also included are
units at major source pulp and paper mills or power producers \2\
subject to 40 CFR part 63, subpart DDDDD that combust these types of
treated railroad ties and had been designed to burn biomass and fuel
oil, but are modified (e.g., oil delivery mechanisms were removed) in
order to use natural gas instead of fuel oil. Again, such combustion
must be part of normal operations and not solely as part of start-up or
shut-down operations. These treated railroad ties may continue to be
combusted as product fuel in units that have been modified to use
natural gas only if the following conditions are met, which are
intended to ensure that these materials are not being discarded:
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    \2\ 40 CFR 241.2 defines power producer as a boiler unit
producing electricity for sale to the grid. The term does not
include units meeting the definition of electricity generating unit
under 40 CFR 63.10042 of the Utility Mercury and Air Toxics
Standards rule.
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    [cir] Must be burned in existing (i.e., commenced construction
prior to April 14, 2014) stoker, bubbling bed, fluidized bed, or hybrid
suspension grate boilers; and
    [cir] Can comprise no more than 40 percent of the fuel that is used
on an annual heat input basis.
     Copper naphthenate railroad ties combusted in units
designed to burn biomass, or biomass and fuel oil.
     Copper naphthenate-borate railroad ties combusted in units
designed to burn biomass, or biomass and fuel oil.

II. Background

A. History of the NHSM Rulemakings

    The Agency first solicited comments on how the RCRA definition of
solid waste should apply to NHSMs when used as fuels or ingredients in
combustion units in an advanced notice of proposed rulemaking (ANPRM),
which was published in the Federal Register on January 2, 2009 (74 FR
41). We then published an NHSM proposed rule on June 4, 2010 (75 FR
31844), which the EPA made final on March 21, 2011 (76 FR 15456).
    In the March 21, 2011 rule, the EPA finalized standards and
procedures to be used to identify whether NHSMs are solid wastes when
used as fuels or ingredients in combustion units. ``Secondary
material'' was defined for the purposes of that rulemaking as any
material that is not the primary product of a manufacturing or
commercial process, and can include post-consumer material, off-
specification commercial chemical products or manufacturing chemical
intermediates, post-industrial material, and scrap (codified in 40 CFR
241.2). ``Non-hazardous secondary material'' is a secondary material
that, when discarded, would not be identified as a hazardous waste
under 40 CFR part 261 (codified in 40 CFR 241.2). Traditional fuels,
including historically managed traditional fuels (e.g., coal, oil,
natural gas) and ``alternative'' traditional fuels (e.g., clean
cellulosic biomass) are not secondary materials and thus, are not solid
wastes under the rule unless discarded (codified in 40 CFR 241.2).
    A key concept under the March 21, 2011 rule is that NHSMs used as
non-waste fuels in combustion units must meet the legitimacy criteria
specified in 40 CFR 241.3(d)(1). Application of the legitimacy criteria
helps ensure that the fuel product is being legitimately and
beneficially used and not simply being discarded through combustion
(i.e., via sham recycling). To meet the legitimacy criteria, the NHSM
must be managed as a valuable commodity, have a meaningful heating
value and be used as a fuel in a combustion unit that recovers energy,
and contain contaminants or groups of contaminants at concentrations
comparable to (or lower than) those in traditional fuels which the
combustion unit is designed to burn.
    Based on these criteria, the March 21, 2011 rule identified the
following NHSMs as not being solid wastes:
     The NHSM is used as a fuel and remains under the control
of the generator (whether at the site of generation or another site the
generator has control over) that meets the legitimacy criteria (40 CFR
241.3(b)(1));
     The NHSM is used as an ingredient in a manufacturing
process (whether by the generator or outside the control of the
generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));
     Discarded NHSM has been sufficiently processed to produce
a fuel or ingredient that meets the legitimacy criteria (40 CFR
241.3(b)(4)); or
     Through a case-by-case petition process, it has been
determined that the NHSM handled outside the control of the generator
has not been discarded and is indistinguishable in all relevant aspects
from a fuel product, and meets the legitimacy criteria (40 CFR
241.3(c)).
    In October 2011, the Agency announced it would be initiating a new
rulemaking proceeding to revise certain aspects of the NHSM rule.\3\ On
February 7, 2013, the EPA published a final rule, which addressed
specific targeted amendments and clarifications to the 40 CFR part 241
regulations (78 FR 9112). These revisions and clarifications were
limited to certain issues on which the Agency had received new
information, as well as targeted revisions that the Agency believed
were appropriate in order to allow implementation of the rule as the
EPA originally intended. The amendments modified 40 CFR 241.2 and
241.3, added 40 CFR 241.4, and included the following: \4\
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    \3\ See October 14, 2011, Letter from Administrator Lisa P.
Jackson to Senator Olympia Snowe. A copy of this letter is in the
docket for the February 7, 2013 final rule (EPA-HQ-RCRA-2008-1873).
    \4\ See 78 FR 9112 (February 7, 2013) for a discussion of the
rule and the Agency's basis for its decisions.
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     Revised Definitions: The EPA revised three definitions
discussed in the proposed rule: (1) ``clean cellulosic

biomass,'' (2) ``contaminants,'' and (3) ``established tire collection
programs.'' In addition, based on comments received on the proposed
rule, the Agency revised the definition of ``resinated wood.''
     Contaminant Legitimacy Criterion for NHSMs Used as Fuels:
The EPA issued revised contaminant legitimacy criterion for NHSMs used
as fuels to provide additional details on how contaminant-specific
comparisons between NHSMs and traditional fuels may be made.
     Categorical Non-Waste Determinations for Specific NHSMs
Used as Fuels. The EPA codified determinations that certain NHSMs are
non-wastes when used as fuels. If a material is categorically listed as
a non-waste fuel, persons that generate or burn these NHSMs will not
need to make individual determinations, as required under the existing
rules, that these NHSMs meet the legitimacy criteria. Except where
otherwise noted, combustors of these materials will not be required to
provide further information demonstrating their non-waste status. Based
on all available information, the EPA determined the following NHSMs
are not solid wastes when burned as a fuel in combustion units and has
categorically listed them in 40 CFR 241.4(a).\5\
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    \5\ In the March 21, 2011 NHSM rule (76 FR 15456), EPA
identified two NHSMs as not being solid wastes, although persons
would still need to make individual determinations that these NHSMs
meet the legitimacy criteria: (1) Scrap tires used in a combustion
unit that are removed from vehicles and managed under the oversight
of established tire collection programs and (2) resinated wood used
in a combustion unit. However, in the February 2013 NHSM rule, the
Agency amended the regulations and listed these NHSMs as categorical
non-waste fuels.

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

     Rulemaking Petition Process for Other Categorical Non-
Waste Determinations: EPA made final a process in 40 CFR 241.4(b) that
provides persons an opportunity to submit a rulemaking petition to the
Administrator, seeking a determination for additional NHSMs to be
categorically listed in 40 CFR 241.4(a) as non-waste fuels, if they can
demonstrate that the NHSM meets the legitimacy criteria or, after
balancing the legitimacy criteria with other relevant factors, EPA
determines that the NHSM is not a solid waste when used as a fuel.
    The February 8, 2016 amendments (81 FR 6688) added the following to
the list of categorical non-waste fuels:
     Construction and demolition (C&D) wood processed from C&D
debris according to best management practices. Under this listing,
combustors of C&D wood must obtain a written certification from C&D
processing facilities that the C&D wood has been processed by trained
operators in accordance with best management practices. Best management
practices must include sorting by trained operators that excludes or
removes the following materials from the final product fuel: Non-wood
materials (e.g., polyvinyl chloride and other plastics, drywall,
concrete, aggregates, dirt, and asbestos), and wood treated with
creosote, pentachlorophenol, chromated copper arsenate, or other
copper, chromium, or arsenical preservatives. Additional required best
management practices address removal of lead-painted wood.
     Paper recycling residuals generated from the recycling of
recovered paper, paperboard and corrugated containers and combusted by
paper recycling mills whose boilers are designed to burn solid fuel.
     Creosote-treated railroad ties (CTRT) that are processed
(which includes metal removal and shredding or grinding at a minimum)
and then combusted in the following types of units:
    [cir] Units designed to burn both biomass and fuel oil as part of
normal operations and not solely as part of start-up or shut-down
operations, and
    [cir] Units at major source pulp and paper mills or power producers
subject to 40 CFR part 63, subpart DDDDD, that combust CTRTs and had
been designed to burn biomass and fuel oil, but are modified (e.g., oil
delivery mechanisms are removed) in order to use natural gas instead of
fuel oil, as part of normal operations and not solely as part of start-
up or shut-down operations. The CTRTs may continue to be combusted as
product fuel only if the following conditions are met, which are
intended to ensure that the CTRTs are not being discarded: CTRTs must
be burned in existing (i.e., commenced construction prior to April 14,
2014) stoker, bubbling bed, fluidized bed, or hybrid suspension grate
boilers; and, CTRTs can comprise no more than 40 percent of the fuel
that is used on an annual heat input basis.
    Based on these non-waste categorical determinations, as discussed
previously, facilities burning NHSMs that meet the categorical listing
description will not need to make individual determinations that the
NHSM meets the legitimacy criteria or provide further information
demonstrating their non-waste status on a site-by-site basis, provided
they meet the conditions of the categorical listing.

B. Background to This Proposed Rule

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

treatments have proven to increase decay resistance for ties in severe
decay environments and for species that are difficult to treat with
creosote alone.\7\ The letter stated that TWC will discuss the
remaining treated wood materials with EPA as a separate matter.
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    \6\ Included in the docket for the February 2016 final rule.
Follow-up meetings were also held with TWC on September 14, 2015 and
December 17, 2015 summaries of which are also included in that
docket.
    \7\ Railway Tie Association ``Frequently Asked Questions''
available on http://www.rta.org/faqs. Assessed on August 26, 2016.
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    The Agency reviewed TWC's information on the three treated railroad
ties, creosote borate, copper naphthenate, and copper naphthenate-
borate, submitted on September 11, 2015 and requested additional
contaminant data, which was submitted on October 5, 2015 and October
19, 2015.\8\ Based on that information, we stated in the February 2016
final rule that we believe these three treated railroad ties are
candidates for categorical non-waste listings and expected to begin
development of a proposed rule under 40 CFR 241.4(a) regarding those
listings in the near future. The result is this proposal.
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    \8\ These data submissions and the letter from TWC on August 21,
2015 are included in the docket for this proposed rule.
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C. How will EPA make categorical non-waste determinations?

    The February 7, 2013 revisions to the NHSM rule discuss the process
and decision criteria whereby the Agency would make additional
categorical non-waste determinations (78 FR 9158). While the
categorical non-waste determinations in this action are not based on
rulemaking petitions, the criteria the EPA used to assess these NHSMs
as categorical non-wastes match the criteria to be used by the
Administrator to determine whether to grant or deny the categorical
non-waste petitions.9 10 These determinations follow the
criteria set out in 40 CFR 241.4(b)(5) to assess additional categorical
non-waste petitions and follow the statutory standards as interpreted
by the EPA in the NHSM rule for deciding whether secondary materials
are wastes. Those criteria include: (1) Whether each NHSM has not been
discarded in the first instance (i.e., was not initially abandoned or
thrown away) and is legitimately used as a fuel in a combustion unit
or, if discarded, has been sufficiently processed into a material that
is legitimately used as a fuel; and, (2) if the NHSM does not meet the
legitimacy criteria described in 40 CFR 241.3(d)(1), whether the NHSM
is integrally tied to the industrial production process, the NHSM is
functionally the same as the comparable traditional fuel, or other
relevant factors as appropriate.
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    \9\ For a full discussion regarding the petition process for
receiving a categorical non-waste determination, see 78 FR 9112,
February 7, 2013 (page 9158-9159).
    \10\ Supplementary information received from by M.A. Energy
Resources (February 2013) in support of the crosstie derived fuel
was submitted as a categorical petition in accordance 40 CFR
241.4(b).
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    Based on the information in the rulemaking record, the Agency is
proposing to amend 40 CFR 241.4(a) by listing in addition to CTRT,
three other types of treated railroad ties as categorical non-wastes.
Specific determinations regarding these other treated railroad ties
(OTRT), i.e., creosote-borate, copper naphthenate, copper naphthenate-
borate and mixtures of creosote, borate and copper naphthenate treated
railroad ties, as categorical non-wastes, and how the information was
assessed by EPA according to the criteria in 40 CFR 241.4(b)(5), are
discussed in detail in section III of this preamble.
    The rulemaking record for this rule (i.e., EPA-HQ-RCRA-2016-0248)
includes those documents and information submitted specifically to
support the categorical listings discussed in this rule. However, the
principles on which the categorical listings are determined are based
on the NHSM rules promulgated over the past few years, as discussed
previously. While EPA is not formally including in the record for this
rule materials supporting the earlier NHSM rulemaking proceedings, the
Agency is nevertheless issuing this rule consistent with the NHSM rule
and its supporting documents. This rulemaking proceeding in no way
reopens any issues resolved in previous NHSM rulemaking proceedings. It
simply responds to a petition in accordance with the standards outlined
in the existing NHSM rule.

III. Proposed Categorical Non-Waste Listing Determination for OTRTs

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

A. Detailed Description of OTRTs

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

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

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

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

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

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

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

B. OTRTs Under Current NHSM Rules

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

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

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

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

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

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

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

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

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

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

D. Rationale for Proposed Listing

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

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

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

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

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

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

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

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

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

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

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

    Copper Naphthenate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Mixed Treatments-Creosote, Borate, Copper Naphthenate

                               Mix 1-1-1-1
------------------------------------------------------------------------
                                  Mixed railroad
                                ties  (25%C-25%CB-
                                  25%CuN-25%CuNB)   Biomass/    Fuel oil
          Contaminant               contaminant     untreated     \b\
                                  levels \a\ \f\    wood \b\

------------------------------------------------------------------------
                     Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony......................  <1.4               ND-26       ND-15.7
Arsenic.......................  <1.5-0.81          ND-298      ND-13
Beryllium.....................  <0.70              ND-10       ND-19
Cadmium.......................  0.15-0.38          ND-17       ND-1.4
Chromium......................  0.15-0.17          ND-340      ND-37
Cobalt........................  <7.0-0.07          ND-213      ND-8.5
Lead..........................  0.50-0.81          ND-340      ND-56.8
Manganese.....................  110-190            ND-15,800   ND-3,200
Mercury.......................  <0.15-0.06         ND-1.1      ND-0.2
Nickel........................  0.75-1.4           ND-540      ND-270

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

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

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

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

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

E. Summary and Request for Comment

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. Effect of This Proposal on Other Programs

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

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

V. State Authority

A. Relationship to State Programs

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

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

B. State Adoption of the Rulemaking

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

VI. Cost and Benefits

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

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

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

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

    The assessment document, as mentioned previously, finds that
facilities operating under CAA section 129 standards that are currently