[Federal Register Volume 83, Number 26 (Wednesday, February 7, 2018)]
[Rules and Regulations]
[Pages 5317-5340]
[FR Doc No: 2018-02337]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is issuing
amendments to the Non-Hazardous Secondary Materials regulations, which
generally established standards and procedures for identifying whether
non-hazardous secondary materials are solid wastes when used as fuels
or ingredients in combustion units. In February 2013, the EPA listed
particular non-hazardous secondary materials as ``categorical non-waste
fuels'' provided certain conditions are met. This final rule adds the
following other treated railroad ties (OTRT) to the categorical non-
waste fuel list: Processed creosote-borate, copper naphthenate and
copper naphthenate-borate treated railroad ties, under certain
conditions depending on the chemical treatment.

DATES: This rule is effective February 7, 2018.

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

FOR FURTHER INFORMATION CONTACT: George Faison, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, MC 5303P, Environmental Protection Agency, 1200 Pennsylvania
Ave. NW, Washington, DC 20460; telephone number:<PHONE_NUMBER>; email:
[email protected].

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

I. General Information
    A. List of Abbreviations and Acronyms Used in This Final Rule
    B. What is the statutory authority for this final rule?
    C. Does this action apply to me?
    D. What is the purpose of this final rule?
    E. Effective Date
II. Background
    A. History of the NHSM Rulemakings
    B. Background to This Final Rule
    C. How will EPA make categorical non-waste determinations?
III. Comments on the Proposed Rule and Rationale for Final Decisions
    A. Detailed Description of OTRTs
    B. OTRTs Under Current NHSM Rules
    C. Scope of the Final Categorical Non-Waste Listing for OTRTs
    D. Rationale for Final Rule
    E. Copper and Borates Literature Review and Other EPA Program
Summary
    F. Summary of Comments Requested
    G. Responses to Comments
IV. Effect of This Final Rule on Other Programs
V. State Authority
    A. Relationship to State Programs
    B. State Adoption of the Rulemaking
VI. Costs and Benefits
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    L. Congressional Review Act (CRA)

I. General Information

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

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

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

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

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

C. Does this action apply to me?

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

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

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

D. What is the purpose of this final rule?

    The RCRA statute defines ``solid waste'' as ``any garbage, refuse,
sludge from a waste treatment plant, water supply treatment plant, or
air pollution control facility and other discarded material . . .
resulting from industrial, commercial, mining, and agricultural
operations, and from community activities.'' (RCRA section 1004(27)
(emphasis added)). The key concept is that of ``discard'' and, in fact,
this definition turns on the meaning of the phrase, ``other discarded
material,'' since this term encompasses all other examples provided in
the definition.
    The meaning of ``solid waste,'' as defined under RCRA, is of
particular importance as it relates to section 129 of the CAA. If
material is a solid waste, under RCRA, a combustion unit burning it is
required to meet the CAA section 129 emission standards for solid waste
incineration units. If the material is not a solid waste, combustion
units are required to meet the CAA section 112 emission standards for
commercial, industrial, and institutional boilers, or if the combustion
unit is a cement kiln, the CAA 112 standards for Portland cement kilns.
Under CAA section 129, the term ``solid waste incineration unit'' is
defined, in pertinent part, to mean ``a distinct operating unit of any
facility which combusts any solid waste material from commercial or
industrial establishments.'' 42 U.S.C. 7429(g)(1). CAA section 129
further states that the term ``solid waste'' shall have the meaning
``established by the Administrator pursuant to the Solid Waste Disposal
Act.'' Id at 7429(g)(6). The Solid Waste Disposal Act, as amended, is
commonly referred to as the Resource Conservation and Recovery Act or
RCRA.
    Regulations concerning NHSMs used as fuels or ingredients in
combustion units are codified in 40 CFR part 241.\1\ This action amends
the part 241 regulations by adding three NHSMs, summarized below, to
the list of categorical non-waste fuels codified in Sec.  241.4(a):
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    \1\ See 40 CFR 241.2 for the definition of non-hazardous
secondary material.
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    (1) Creosote-borate treated railroad ties, and mixtures of
creosote, borate and/or copper naphthenate treated railroad ties that
are processed and then combusted in:
    (i) Units designed to burn both biomass and fuel oil as part of
normal operations and not solely as part of start-up or shut-down
operations, and
    (ii) Units at major source pulp and paper mills or power producers
subject to 40 CFR part 63, subpart DDDDD, designed to burn biomass and
fuel oil as part of normal operations and not solely as part of start-
up or shut-down operations, but are modified in order to use natural
gas instead of fuel oil. The creosote-borate and mixed creosote, borate
and copper naphthenate treated railroad ties may continue to be
combusted as product fuel only if certain conditions are met, which are
intended to ensure that such railroad ties are not being discarded.
    (iii) Units meeting requirements in (i) or (ii) that are also
designed to burn coal.

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

E. Effective Date

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

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

II. Background

A. History of the NHSM Rulemakings

    The Agency first solicited comments on how the RCRA definition of
solid waste should apply to NHSMs when used as fuels or ingredients in
combustion units in an advanced notice of proposed rulemaking (ANPRM),
which was published in the Federal Register on January 2, 2009 (74 FR
41). We then published an NHSM proposed rule on June 4, 2010 (75 FR
31844), which the EPA made final on March 21, 2011 (76 FR 15456).
    In the March 21, 2011 (76 FR 15456) rule, the EPA finalized
standards and procedures to be used to identify whether NHSMs are solid
wastes when used as fuels or ingredients in combustion units.
``Secondary material'' was defined for the purposes of that rulemaking
as any material that is not the primary product of a manufacturing or
commercial process, and can include post-consumer material, off-
specification commercial chemical products or manufacturing chemical
intermediates, post-industrial material, and scrap (codified in 40 CFR
241.2). ``Non-hazardous secondary material'' is a secondary material
that, when discarded, would not be identified as a hazardous waste
under 40 CFR part 261 (codified in 40 CFR 241.2). Traditional fuels,
including historically managed traditional fuels (e.g., coal, oil,
natural gas) and ``alternative'' traditional fuels (e.g., clean
cellulosic biomass) are not secondary materials and thus, are not solid
wastes under the rule unless discarded (codified in 40 CFR 241.2).
    A key concept under the March 21, 2011 rule is that NHSMs used as
non-waste fuels and ingredients in combustion units must meet the
legitimacy criteria specified in 40 CFR 241.3(d)(1). Application of the
legitimacy criteria helps ensure that the fuel product is being
legitimately and beneficially used and not simply being discarded
through combustion (i.e., via sham recycling). To meet the legitimacy
criteria, the NHSM must be managed as a valuable commodity, have a
meaningful heating value and be used as a fuel in a combustion unit
that recovers energy, and contain contaminants or groups of
contaminants \2\ at concentrations comparable to (or lower than) those
in traditional fuels which the combustion unit is designed to burn. For
NHSMs used as an ingredient, in addition to the other listed criteria,
the ingredient must be used to make a valuable product.
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    \2\ For additional information on grouping of contaminants see
78 FR 9146.
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    Based on these criteria, the March 21, 2011 rule identified the
following NHSMs as not being solid wastes:
     The NHSM is used as a fuel and remains under the control
of the generator (whether at the site of generation or another site the
generator has control over) that meets the legitimacy criteria (40 CFR
241.3(b)(1));
     The NHSM is used as an ingredient in a manufacturing
process (whether by the generator or outside the control of the
generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));
     Discarded NHSM that has been sufficiently processed to
produce a fuel or ingredient that meets the legitimacy criteria (40 CFR
241.3(b)(4)); or
     Through a case-by-case petition process, it has been
determined that the NHSM handled outside the control of the generator
has not been discarded and is indistinguishable in all relevant aspects
from a fuel product, and meets the legitimacy criteria (40 CFR
241.3(c)).
    In October 2011, the Agency announced it would be initiating a new
rulemaking proceeding to revise certain aspects of the NHSM rule.\3\ On
February 7, 2013, the EPA published a final rule, which addressed
specific targeted amendments and clarifications to the 40 CFR part 241
regulations (78 FR 9112). These revisions and clarifications were
limited to certain issues on which the Agency had received new
information, as well as targeted revisions that the Agency believed
were appropriate in order to allow implementation of the rule as the
EPA originally intended. The amendments modified 40 CFR 241.2 and
241.3, added 40 CFR 241.4, and included the following: \4\
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    \3\ See October 14, 2011, Letter from Administrator Lisa P.
Jackson to Senator Olympia Snowe. A copy of this letter is in the
docket for the February 7, 2013 final rule (EPA-HQ-RCRA-2008-1873).
    \4\ See 78 FR 9112 (February 7, 2013) for a discussion of the
rule and the Agency's basis for its decisions.
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     Revised Definitions: The EPA revised three definitions
discussed in the proposed rule: (1) ``Clean cellulosic biomass,'' (2)
``contaminants,'' and (3) ``established tire collection program.'' In
addition, based on comments received on the proposed rule, the Agency
revised the definition of ``resinated wood.''
     Contaminant Legitimacy Criterion for NHSMs Used as Fuels:
The EPA issued revised contaminant legitimacy criterion for NHSMs used
as fuels to provide additional details on how contaminant-specific
comparisons between NHSMs and traditional fuels may be made.
     Categorical Non-Waste Determinations for Specific NHSMs
Used as Fuels. The EPA codified determinations that certain NHSMs are
non-wastes when used as fuels. If a material is categorically listed as
a non-waste fuel, persons that generate or burn these NHSMs will not
need to make individual determinations, as required under the existing
rules, that these NHSMs meet the legitimacy criteria. Except where
otherwise noted, combustors of these materials will not be required to
provide further information demonstrating their non-waste status. Based
on all available information, the EPA determined the following NHSMs
are not solid wastes when burned as a fuel in combustion units and
categorically listed them in 40 CFR 241.4(a).\5\
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    \5\ In the March 21, 2011 NHSM rule (76 FR 15456), EPA
identified two NHSMs as not being solid wastes, although persons
would still need to make individual determinations that these NHSMs
meet the legitimacy criteria: (1) Scrap tires used in a combustion
unit that are removed from vehicles and managed under the oversight
of established tire collection programs and (2) resinated wood used
in a combustion unit. However, in the February 2013 NHSM rule, the
Agency amended the regulations and listed these NHSMs as categorical
non-waste fuels.

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

B. Background to This Final Rule

    The Agency received a petition from the Treated Wood Council (TWC)
in April 2013 \6\ requesting that various nonhazardous treated wood
(including borate and copper naphthenate) be categorically listed as
non-waste fuels in 40 CFR 241.4(a). Under the April 2013 petition,
nonhazardous treated wood included: waterborne borate based
preservatives; waterborne organic based preservatives; waterborne
copper based wood preservatives (ammoniacal/alkaline copper quat,
copper azole, copper HDO, alkaline copper betaine, or copper
naphthenate); creosote; oil borne copper naphthenate;
pentachlorophenol; or dual-treated with any of the above.
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    \6\ Included in the docket for the February 2016 final rule--
EPA-HQ-RCRA-2013-0110-0056.
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    In the course of EPA's review of the April 2013 petition,
additional data was requested and received, and meetings were held
between TWC and EPA representatives. Overall, the EPA review determined
that there were limited data points available and the analytical
techniques for some contaminants were not appropriate to provide
information on the entire preserved wood sample as it would be
combusted. EPA also questioned the representativeness of the samples
being analyzed and the repeatability of the analyses.
    In the subsequent August 21, 2015 letter from TWC to Barnes
Johnson,\7\ TWC requested that the Agency move forward on a subset of
materials that were identified in the original April 2013 petition
which are creosote borate, copper naphthenate, and copper naphthenate-
borate treated railroad ties. In the letter, TWC indicated that these
types of ties are increasingly being used as alternatives to CTRT, due,
in part, to lower overall contaminant levels and because the ability to
reuse these new types of treated ties as fuel is an important
consideration in overall rail tie purchasing decisions. Other industry
information claimed that these treatments have proven to increase decay
resistance for ties in severe decay environments and for species that
are difficult to treat with creosote alone.\8\
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    \7\ Included in the docket for the February 2016 final rule.
Follow-up meetings were also held with TWC on September 14, 2015 and
December 17, 2015 summaries of which are also included in that
docket.
    \8\ Railway Tie Association ``Frequently Asked Questions''
available on http://www.rta.org/faqs.
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    The Agency reviewed TWC's information on the three types of treated
railroad ties, creosote borate, copper naphthenate, and copper
naphthenate-borate, submitted on September 11, 2015 and requested
additional contaminant data, which was submitted on October 5, 2015 and
October 19, 2015.\9\ Based on that information, EPA stated in the
February 2016 final rule that we believe these three treated railroad
ties are candidates for categorical non-waste listings and expected to
begin development of a proposed rule under 40 CFR 241.4(a) regarding
those listings in the near future. That proposed rule was issued
November 1, 2016 (81 FR 75781).
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    \9\ These data submissions and the letter from TWC on August 21,
2015 are included in the docket for this rule.
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C. How will EPA make categorical non-waste determinations?

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

decision criteria whereby the Agency would make additional categorical
non-waste determinations (78 FR 9158). These determinations follow the
weight-of-evidence criteria set out in 40 CFR 241.4(b)(5), which the
Agency established to assess additional categorical non-waste petitions
and follow the statutory standards as interpreted by the EPA in the
NHSM rule for deciding whether secondary materials qualify as solid
wastes. Those criteria include: (1) Whether each NHSM has not been
discarded in the first instance (i.e., was not initially abandoned or
thrown away) and is legitimately used as a fuel in a combustion unit
or, if discarded, has been sufficiently processed into a material that
is legitimately used as a fuel; and, (2) if the NHSM does not meet the
legitimacy criteria described in 40 CFR 241.3(d)(1), whether the NHSM
is integrally tied to the industrial production process, the NHSM is
functionally the same as the comparable traditional fuel, or other
relevant factors as appropriate.
    Based on the information in the rulemaking record and comments
received, the Agency is finalizing amendments to 40 CFR 241.4(a) by
listing three other types of treated railroad ties as categorical non-
waste fuels, in addition to CTRTs added in February 2016. Specific
determinations regarding these other treated railroad ties (OTRTs,
i.e., creosote-borate, copper naphthenate, copper naphthenate-borate;
and, mixtures of creosote, borate and/or copper naphthenate treated
railroad ties) and how the information was assessed by EPA according to
the criteria in 40 CFR 241.4(b)(5), are discussed in detail in section
III of this preamble.
    The rulemaking record for this rule (i.e., EPA-HQ-RCRA-2016-0248)
includes those documents and information submitted specifically to
support a determination as to whether certain OTRTs should be listed as
a categorical non-waste fuel. However, the principles used to determine
categorical listings are based on the NHSM rules promulgated over the
past few years. While EPA is not formally including in the record for
this rule materials supporting the previous NHSM rulemakings, the
Agency is nevertheless issuing this rule consistent with the NHSM
regulations and the supporting records for those rules. This rulemaking
in no way reopens any issues resolved in previous NHSM rulemakings. It
simply responds to a petition in accordance with the standards and
procedures outlined in the existing NHSM regulations.

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

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

A. Detailed Description of OTRTs

1. Processing
    As described in the proposed rulemaking (81 FR 75781, November 1,
2016 (page 75785)), industry representatives stated that the removal of
OTRTs from service and processing of those ties into a product fuel is
similar to processing of CTRTs described in the February 2016 rule.\10\
OTRTs are typically comprised of North American hardwoods that have
been treated with a wood preservative. The removal from service,
processing and use as a fuel happens through three parties: the
generator of the crossties (railroad or utility); the reclamation
company that sorts the crossties, and in some cases processes the
material received from the generator; and the combustor as third party
energy producers. Typically, ownership of the OTRTs are generally
transferred directly from the generator to the reclamation company that
sorts materials for highest value secondary uses, and then sells the
products to end-users, including those combusting the material as fuel.
Some reclamation companies sell OTRTs to processors who remove metal
contaminants and grind the ties into chipped wood. Other reclamation
companies have their own grinders, do their own contaminant removal,
and can sell directly to the combusting facilities. Information
submitted to the Agency indicates there are approximately 15 recovery
companies in North America with industry-wide revenues of $65-75
million.
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    \10\ 81 FR 6688 The OTRTs removed from service are considered
discarded because they can be stored for long periods of time
without a final determination regarding their final end use. In
order for them to be considered a non-waste fuel, they must be
processed, thus transforming the OTRTs into a product fuel that
meets the legitimacy criteria. (81 FR 75788; November 1, 2016).
---------------------------------------------------------------------------

    After crossties are removed from service, they are transferred for
sorting/processing, but in some cases, they may be temporarily stored
in the railroad rights-of-way or at another location selected by the
reclamation company. One information source \11\ indicated that when
the crossties are temporarily stored, they are stored until their value
as an alternative fuel can be realized, generally through a contract
completed for transferal of ownership to the reclamation contractor or
combustor. This means that not all OTRTs originate from crossties
removed from service in the same year; some OTRTs are processed from
crossties removed from service in prior years and stored by railroads
or removal/reclamation companies until their value as a landscaping
element or fuel could be realized.
---------------------------------------------------------------------------

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

    Typically, reclamation companies receive OTRTs by rail. The
processing of the crossties into fuel by the reclamation/processing
companies involves several steps. Contaminant metals (spikes, nails,
plates, etc.) undergo initial separation and removal by the user
organization (railroad company) during inspection. At the reclamation
company, the crossties are then ground or shredded to a specified size
depending on the particular needs of the end-use combustor, with chip
size typically between 1-2 inches. Such grinding and shredding
facilitates handling, storage and metering to the combustion chamber.
By achieving a uniform particle size, combustion efficiency will be
improved due to the uniform and controlled fuel feed rate and the
ability to regulate the air supply. Additionally, the size reduction
process exposes a greater surface area of the particle prior to
combustion, releasing any moisture more rapidly, and thereby enhancing
its heating value. This step may occur in several phases, including
primary and secondary grinding, or in a single phase. Additional metal
removal may also occur after shredding.
    Once the crossties are ground to a specific size, there is further
screening based on the particular needs of the end-use combustor.
Depending on the configuration of the facility and

equipment, screening may occur concurrently with grinding or at a
subsequent stage. Once the processing of OTRTs is complete, the OTRTs
are sold directly to the end-use combustor for energy recovery.
Processed OTRTs are delivered to the buyers by railcar or truck. The
processed OTRTs are then stockpiled prior to combustion in a manner
consistent with biomass fuels, with a typical storage timeframe ranging
from a day to a week. When the OTRTs are to be burned for energy
recovery, the material is then transferred from the storage location
using a conveyor belt or front-end loader. The OTRTs may be combined
with other biomass fuels, including hog fuel and bark. OTRTs are
commonly used to provide the high British thermal unit (Btu) fuel to
supplement low (and sometimes wet) Btu biomass to ensure proper
combustion, often in lieu of coal or other fossil fuels.\12\ The
combined fuel may be further hammered and screened prior to combustion.
---------------------------------------------------------------------------

    \12\ American Forest & Paper Association, American Wood
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------

    In general, contracts for the purchase and combustion of OTRTs
include fuel specifications limiting contaminants, such as metals, and
prohibiting the receipt of wood treated with other preservatives such
as pentachlorophenol.
2. Treatment Descriptions
i. Copper Naphthenate
    Copper naphthenate's effectiveness as a preservative has been known
since the early 1900s, and various formulations have been used
commercially since the 1940s. It is an organometallic compound formed
as a reaction product of copper salts and naphthenic acids derived from
petroleum. Unlike other commercially applied wood preservatives, small
quantities of copper naphthenate can be purchased at retail hardware
stores and lumberyards. Cuts or holes in treated wood can be treated in
the field with copper naphthenate. Wood treated with copper naphthenate
has a distinctive bright green color that weathers to light brown. The
treated wood also has an odor that dissipates somewhat over time. Oil
borne copper naphthenate is used for treatment of railroad ties since
that treatment results in the ties being more resistant to cracks and
checking. Waterborne copper naphthenate is used only for interior
millwork and exterior residential dimensional lumber applications such
as decking, fencing, lattice, recreational equipment, and other
structures. Thus, this final rule does not address waterborne copper
naphthenate.
    Copper naphthenate can be dissolved in a variety of solvents: The
heavy oil solvent (specified in American Wood Protection Association
(AWPA) Standard P9, Type A) or the lighter solvent (AWPA Standard P9,
Type C). The lighter solvent is the most commonly used for railroad
ties due to its ability to penetrate the wood. Copper naphthenate is
listed in AWPA standards for treatment of major softwood species that
are used for a variety of wood products. It is not listed for treatment
of any hardwood species, except when the wood is used for railroad
ties. The minimum copper naphthenate retentions (the amount of
retention of the preservative in the tie after treatment application)
range from 0.04 pounds per cubic foot (0.6 kilograms per cubic meter)
for wood used aboveground, to 0.06 pounds per cubic foot (1 kilogram
per cubic meter) for wood that will contact the ground and 0.075 pounds
per cubic foot (1.2 kilograms per cubic meter) for wood used in
critical structural applications.\13\
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    \13\ U.S. Forest Service Preservative Treated Wood and
Alternative Products in the Forest Service: https://www.fs.fed.us/t-d/pubs/htmlpubs/htm06772809/page02.htm
---------------------------------------------------------------------------

    When dissolved in No. 2 fuel oil (Type C under AWPA standards),
copper naphthenate can penetrate wood that is difficult to treat.
Copper naphthenate loses some of its ability to penetrate wood when it
is dissolved in heavier oils. Copper naphthenate treatments do not
significantly increase the corrosion of metal fasteners relative to
untreated wood.
    Copper naphthenate is commonly used to treat utility poles,
although fewer facilities treat utility poles with copper naphthenate
than with creosote or pentachlorophenol. Unlike creosote and
pentachlorophenol, copper naphthenate is not listed as a Restricted Use
Pesticide (RUP) \14\ by the EPA. Even though human health concerns do
not require copper naphthenate to be listed as an RUP, precautions such
as the use of dust masks and gloves are used when working with wood
treated with copper naphthenate.
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    \14\ List of Restricted Use Pesticides found at: https://www.epa.gov/pesticide-worker-safety/restricted-use-products-rup-report.
---------------------------------------------------------------------------

ii. Borates
    Borates is the name for a large number compounds containing the
element boron. Borate compounds are the most commonly used unfixed
waterborne preservatives. Unfixed preservatives can leach from treated
wood. They are used for pressure treatment of framing lumber used in
areas with high termite hazard and as surface treatments for a wide
range of wood products, such as cabin logs and the interiors of wood
structures. They are also applied as internal treatments using rods or
pastes. At higher rates of retention, borates also are used as fire-
retardant treatments for wood. Copper naphthenate treated ties are most
effective when dual-treated with borate to prevent decay.\15\
---------------------------------------------------------------------------

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

    Performance characteristics of borate treatment include protection
of the wood against fungi and insects, with low mammalian toxicity.
Another advantage of boron is its ability to diffuse with water into
wood that normally resists traditional pressure treatment. Wood treated
with borates has no added color, no odor, and can be finished (primed
and painted).
    Inorganic boron is listed as a wood preservative in the AWPA
standards, which include formulations prepared from sodium octaborate,
sodium tetraborate, sodium pentaborate, and boric acid. Inorganic boron
is also standardized as a pressure treatment for a variety of species
of softwood lumber used out of contact with the ground and continuously
protected from water. The minimum borate (B2O3)
retention is 0.17 pounds per cubic foot (2.7 kilograms per cubic
meter). A retention of 0.28 pounds per cubic foot (4.5 kilograms per
cubic meter) is specified for areas with Formosan subterranean
termites.\16\
---------------------------------------------------------------------------

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

    Borate preservatives are available in several forms, but the most
common is disodium octaborate tetrahydrate (DOT). DOT has higher water
solubility than many other forms of borate, allowing more concentrated
solutions to be used and increasing the mobility of the borate through
the wood. With the use of heated solutions, extended pressure periods,
and diffusion periods after treatment, DOT can penetrate wood species
that are relatively difficult to treat, such as spruce. Several
pressure treatment facilities in the United States use borate
solutions. For refractory wood species destined for high decay areas,
it has now become relatively common practice to use borates as a pre-
treatment to protect the wood prior to processing with creosote.
iii. Creosote
    Creosote was introduced as a wood preservative in the late 1800's
to prolong the life of railroad ties. CTRTs

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

B. OTRTs Under Current NHSM Rules

1. March 2011 NHSM Final Rule
    The March 2011 NHSM final rule stated that most creosote-treated
wood is non-hazardous. However, the presence of hexachlorobenzene, a
CAA section 112 hazardous air pollutant (HAP), as well as other HAPs
suggested that creosote-treated wood, including CTRTs, contained
contaminants at levels that are not comparable to or lower than those
found in wood or coal, the fuel that creosote-treated wood would
replace. In making this assessment in 2011, the Agency did not consider
fuel oil \17\ as a traditional fuel that CTRTs would replace, and
concluded at the time that combustion of creosote-treated wood may
result in destruction of contaminants contained in those materials.
Such destruction is an indication of discard and incineration, a waste
activity. Accordingly, creosote-treated wood, including CTRTs when
burned, seemed more like a waste than a commodity, and did not meet the
contaminant legitimacy criterion. This material, therefore, was
considered a solid waste when burned, and units' combusting it would be
subject to the CAA section 129 emission standards (40 CFR part 60,
subparts CCCC and DDDD).
---------------------------------------------------------------------------

    \17\ For the purposes of this rule, fuel oil means oils 1-6,
including distillate, residual, kerosene, diesel, and other
petroleum based oils. It does not include gasoline or unrefined
crude oil.
---------------------------------------------------------------------------

    Regarding borate-treated wood, after reviewing data from one
commenter which showed that the levels of contaminants in this material
are comparable to those found in unadulterated wood for the seven
contaminants for which data was presented, the Agency stated in the
March 2011 final rule that such treated-wood meets the legitimacy
criterion on the level of contaminants and comparability to traditional
fuels. The rule further stated that borate-treated wood could be
classified as a non-waste fuel, provided the other two legitimacy
criteria are met and the contaminant levels for any other HAP that may
be present in this material are also comparable to or less than those
in traditional fuels. The rule noted that such borate-treated wood
would need to be burned as a fuel for energy recovery within the
control of the generator. Finally, the rule indicated that EPA was
aware of some borate-treated wood is subsequently treated with
creosote, to provide an insoluble barrier to prevent the borate
compounds from leaching out of the wood. The Agency did not receive
data on the contaminant levels of the resulting material with both
treatments, but data presented on creosote treated lumber when
combusted in units designed to burn biomass indicated that this NHSM
would likely no longer meet the legitimacy criteria and would be
considered a solid waste when burned as a fuel.
    As indicated in the rule, EPA did not have information generally
about the transfer of borate-treated wood to other companies to make a
broad determination about its use as a fuel outside the control of the
generator. Thus, under the March 2011 rule, borate-treated wood would
need to be burned as a fuel for energy recovery within the control of
the generator (76 FR 15484). Persons could make self-determinations
regarding other uses of the material as fuel including use outside the
control of the generator.
    With regard to wood treated with copper naphthenate, the March 2011
rule indicated that no additional contaminant data was provided that
would reverse the position in the June 2010 proposed rule, which
considered wood treated with copper naphthenate a solid waste because
of concerns of elevated levels of contaminants (76 FR 15484, March 21,
2011). The March 2011 rule acknowledged, as in the June 2010 proposed
rule (75 FR 31862, June 4, 2010), that the Agency did not have
sufficient information on the contaminant levels in wood treated with
copper naphthenate. The rule further stated that if a person could
demonstrate that copper naphthenate treated-wood is burned in a
combustion unit as a fuel for energy recovery within the control of the
generator and meets the legitimacy criteria, or if discarded, can
demonstrate that they have sufficiently processed the material and meet
legitimacy criteria, that person can handle its copper naphthenate
treated-wood as a non-waste fuel.
2. February 2013 NHSM Final Rule
    In the February 2013 NHSM final rule (78 FR 9173), EPA noted that
the American Forest and Paper Association (AF&PA) and the American Wood
Council submitted a letter with supporting information on December 6,
2012, seeking a categorical non-waste listing and clarification letter
for CTRTs combusted in any unit.\18\ The letter included information
regarding the amounts of railroad ties combusted each year and the
value of the ties as fuel. The letter also discussed how CTRTs satisfy
the legitimacy criteria, including its high Btu value.
---------------------------------------------------------------------------

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

    While this information was useful, it was not sufficient for the
EPA to propose that CTRTs be listed categorically as a non-waste fuel
at that time. Therefore, EPA requested that additional information be
provided, and indicated that if this additional information supported
and supplemented the representations made in the December 2012 letter,
EPA would expect to propose a categorical non-waste listing for CTRTs.
The requested information included:
     A list of industry sectors, in addition to forest product
mills, that burn railroad ties for energy recovery,
     The types of boilers (e.g., kilns, stoker boilers,
circulating fluidized bed, etc.) that burn railroad ties for energy
recovery,
     The traditional fuels and relative amounts (e.g., startup,
30 percent, 100 percent) of these traditional fuels that could
otherwise generally be burned in these types of units. The extent to
which non-industrial boilers (e.g., commercial or residential boilers)
burn CTRTs for energy recover, and
     Laboratory analyses for contaminants known or reasonably
suspected to be present in creosote-treated railroad ties, and
contaminants known to be significant components of creosote,
specifically polycyclic aromatic hydrocarbons (i.e., PAH-16),
dibenzofuran, cresols, hexachlorobenzene, 2,4-dinitrotoluene, biphenyl,
quinoline, and dioxins.\19\ (78 FR 9173, February 7, 2013.)

    \19\ The Agency requested these analyses based on the limited
information previously available concerning the chemical makeup of
CTRTs. That limited information included one sample from 1990
(showing the presence of both PAHs and dibenzofuran), past TCLP
results (which showing the presence of cresols, hexachlorobenzene
and 2,4-dinitrotoluene), Material Safety Data Sheets for coal tar
creosote (which showing the potential presence of biphenyl and
quinoline), and the absence of dioxin analyses prior to combustion
despite dioxin analyses of post-combustion emissions.
---------------------------------------------------------------------------

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

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

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

    As discussed in section II.B of this preamble, the November 1, 2016
proposed OTRT rule was based on TWC submitted letters and supporting
documents requesting a categorical non-waste fuel listing for OTRTs.
The information supporting the proposal and the comments received
indicated that these materials have been processed, and meet legitimacy
criteria including management as a valuable commodity, meaningful
heating value and contaminants at levels comparable to or less than
those in the traditional fuels that these combustion units are designed
to burn as fuel. In this final rule, the Agency is listing, as
categorical non-wastes, processed OTRTs when used as fuels. The
rationale for this listing is discussed in detail in the Section D.
    For units combusting copper naphthenate-borate and/or copper
naphthenate railroad ties, such materials could be combusted as non-
waste fuels in units designed to burn biomass, biomass and fuel oil, or
biomass and coal under CAA 112 standards. For units combusting railroad
ties containing creosote, including creosote-borate or any mixtures of
ties containing creosote, borate and copper naphthenate, such materials
must be burned in combustion units that are designed to burn, both,
biomass and fuel oil in order for the material to be considered a non-
waste fuel. The Agency would consider combustion units to meet this
requirement if the unit combusts fuel oil as part of normal operations
and not solely as part of start up or shut down operations. Units
combusting ties mixed with creosote that are designed to burn biomass
and fuel oil may also be designed to burn coal under this categorical
non-waste fuel listing.
    Consistent with, and for the same reasons as the approach for CTRTs
outlined in the February 2016 final rule (81 FR 6725), units combusting
railroad ties treated with creosote-borate (or other combination
mixtures of railroad ties containing creosote, borate and copper
naphthenate) in units designed to burn biomass and fuel oil, could also
combust those materials in units at major pulp and paper mills or units
at power production facilities subject to 40 CFR part 63, subpart DDDDD
(Boiler MACT), that combust such ties and had been designed to burn
biomass and fuel oil, but are modified (e.g., oil delivery mechanisms
are removed) in order to use natural gas instead of fuel oil as part of
normal operations and not solely as part of start-up or shut-down
operations. These ties may continue to be combusted as a product fuel
only if certain conditions are met, which are intended to ensure that
they are not being discarded:
     Must be combusted in existing (i.e., commenced
construction prior to April 14, 2014) stoker, bubbling bed, fluidized
bed or hybrid suspension grate boilers; and
     Must comprise no more than 40 percent of the fuel that is
used on an annual heat input basis.\20\
---------------------------------------------------------------------------

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

    These conditions will also apply if an existing unit designed to
burn fuel oil and biomass (at a power production facility or pulp and
paper mill) is modified to burn natural gas at some point in the
future.
    Units combusting ties mixed with creosote that are designed to burn
biomass and fuel oil, but have switched from fuel oil to natural gas,
may also be designed to burn coal under this categorical non-waste fuel
listing.
    The approach for railroad ties treated with creosote-borate (or
other mixtures of treated railroad ties containing creosote, borate and
copper naphthenate) addresses only the circumstance where contaminants
in these railroad ties are comparable to or less than the traditional
fuels the combustion unit was originally designed to burn (both fuel
oil and biomass) but that design was modified in order to combust
natural gas. The approach is not a general means to circumvent the
contaminant legitimacy criterion by allowing combustion of any NHSM
with elevated contaminant levels, i.e., levels not comparable to the
traditional fuel the unit is currently designed to burn. As
contaminants in railroad ties treated with creosote are comparable to
the contaminant in biomass and fuel oil, units that had switched to
natural gas from fuel oil would clearly be in compliance with the
legitimacy criteria if they did not switch to the cleaner natural gas
fuel. While contaminant levels may in fact be higher when compared to
natural gas, boilers at pulp and paper mills and power production
facilities have demonstrated the ability to combust these materials
should not be penalized for switching to a cleaner fuel. Removal of oil
delivery mechanisms from units designed to burn fuel oil does not
support a conclusive decision that such ties do not meet legitimacy
criteria and are now being discarded.
    Information indicating that these railroad ties alone or in the
combination mixtures are an important part of the fuel mix because of
the consistently lower moisture content and higher Btu value, benefit
the combustion units with significant swings in steam demand, therefore
suggesting that discard is not occurring. The Agency believes it
appropriate to balance other relevant factors in this categorical non-
waste determination and to decide that the switching to the cleaner
natural gas would not render these materials a waste fuel.
    This determination is consistent with the February 2016 rule, and
is based on the historical usage of CTRT as a product fuel in stoker,
bubbling bed, fluidized bed and hybrid suspension grate boilers (i.e.,
boiler designs used to combust used railroad ties, see 81 FR 6732).

D. Rationale for Final Rule

1. Discard
    When deciding whether an NHSM should be listed as a categorical
non-waste fuel in accordance with 40 CFR 241.4(b)(5), EPA first
evaluates whether or not the NHSM has been discarded, and if not
discarded, whether or not the

material is legitimately used as a product fuel in a combustion unit.
If the material has been discarded, EPA evaluates whether the NHSM has
been sufficiently processed into a material that is legitimately used
as a product fuel.
    Information submitted by petitioners regarding OTRTs removed from
service and processed was analogous to that for CTRTs. Specifically,
OTRTs removed from service are sometimes temporarily stored in the
railroad right-of-way or at another location selected by the removal/
reclamation company. This means that not all OTRTs originate from
crossties removed from service in the same year; some OTRTs are
processed from crossties removed from service in prior years and stored
by railroads or removal/reclamation companies until a contract for
reclamation is in place.
    EPA reiterates its position from the February 8, 2016 (81 FR 6725)
final rule regarding cases where a railroad or reclamation company
waits for more than a year to realize the value of OTRTs as a fuel. The
Agency again concludes that OTRTs are removed from service and stored
in a railroad right-of-way or location for long periods of time, that
is, a year or longer without a determination regarding their final end
use (e.g., landscaping, as a fuel or landfilled) indicates that the
material has been discarded in the first instance and is a solid waste
(see also the general discussion of discard at 76 FR 15463, March 11,
2011 rule).\21\ Regarding any assertion that OTRTs are a valuable
commodity in a robust market, the Agency would like to remind persons
that NHSMs may have value in the marketplace and still be considered
solid wastes.
2. Processing
    Since the OTRTs removed from service are considered discarded
because they can be stored for long periods of time without a final
determination regarding their final end use, to be considered a non-
waste fuel they must be processed, i.e. transforming the OTRTs into a
product fuel that meets the legitimacy criteria.\22\ The Agency
concludes that the processing of OTRTs described previously in section
III.A.1 of this preamble meets the definition of processing in 40 CFR
241.2. As discussed in that section, processing includes operations
that transform a discarded NHSM into a non-waste fuel or non-waste
ingredient, including operations necessary to: Remove or destroy
contaminants; significantly improve the fuel characteristics (e.g.,
sizing or drying of the material, in combination with other
operations); chemically improve the as-fired energy content; or improve
the ingredient characteristics. Minimal operations that result only in
modifying the size of the material by shredding do not constitute
processing for the purposes of the definition. The Agency concludes
that OTRTs meet the definition of processing in 40 CFR 241.3 because
contaminant metals are removed in several steps and the fuel
characteristics are significantly improved; specifically:
---------------------------------------------------------------------------

    \22\ Persons who concluded that their OTRTs are not discarded
and thus are not subject to this categorical determination may
submit an application to the EPA Regional Administrator that the
material has not been discarded when transferred to a third party
and is indistinguishable from a product fuel (76 FR 15551, March 21,
2011). Persons can also make self-determinations for their NHSM.
---------------------------------------------------------------------------

     Contaminants (e.g., spikes, plates, transmission wire and
insulator bulbs) are removed during initial inspection by the user
organization;
     Removal of contaminant metals occurs again at the
reclamation facility using magnets; such removal may occur in multiple
stages;
     The fuel characteristics of the material are improved when
the crossties are ground or shredded to a specified size (typically 1-2
inches) due to increased surface area. The final size depends on the
particular needs of the end-use combustor. The grinding may occur in
one or more phases; and
     Once the contaminant metals are removed and the OTRTs are
ground, there may be additional operations to bring the material to a
specified size.
3. Legitimacy Criteria
    EPA can list a discarded NHSM as a categorical non-waste fuel if it
has been ``sufficiently processed,'' and meets the legitimacy criteria.
The three legitimacy criteria to be evaluated are: (1) The NHSM must be
managed as a valuable commodity, (2) the NHSM must have a meaningful
heating value and be used as a fuel in a combustion unit to recover
energy, and (3) the NHSM must have contaminants or groups of
contaminants at levels comparable to or less than those in the
traditional fuel the unit is designed to burn.\23\
---------------------------------------------------------------------------

    \23\ We note that even if the NHSM does not meet one or more of
the legitimacy criteria, the Agency could still propose to list an
NHSM categorically by balancing the legitimacy criteria with other
relevant factors (see 40 CFR 241.4(b)(5)(ii).
---------------------------------------------------------------------------

i. Managed as a Valuable Commodity
    Data submitted \24\ indicates that OTRT processing and subsequent
management is analogous to that of CTRTs outlined in the February 8,
2016 final rule (81 FR 6725). The processing of OTRTs is correlated to
the particular needs of the end-use combustor. The process begins when
the railroad or utility company removes the old OTRTs from service. An
initial inspection is conducted where non-combustible materials are
sorted out. OTRTs are stored in staging areas until shippable
quantities are collected. Shippable quantities are transported via
truck or rail to a reprocessing center.
---------------------------------------------------------------------------

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

    At the reprocessing center, pieces are again inspected, sorted, and
non-combustible materials are removed. Combustible pieces then undergo
size reduction and possible blending with compatible combustibles. Once
the OTRTs meet the end use specification, they are then sold directly
to the end-use combustor for energy recovery. OTRTs are delivered to
the end-use combustors via railcar and/or truck similar to delivery of
traditional biomass fuels.
    After receipt, OTRTs are stockpiled similar to analogous biomass
fuels (e.g., in fuel silos) to maximize dryness and minimize dust.
While awaiting combustion at the end-user, which usually occurs within
one day to a week of arrival, the OTRTs are also transferred and/or
handled from storage in a manner consistent with the transfer and
handling of biomass fuels. Procedures include screening by the end-use
combustor, combining with other biomass fuels, and transferring to the
combustor via conveyor belt or front-end loader.
    Since the storage of the processed material does not exceed
reasonable time frames and the processed ties are handled/treated
similar to analogous biomass fuels by end-use combustors, OTRTs meet
the criterion for being managed as a valuable commodity.
ii. Meaningful Heating Value and Used as a Fuel To Recover Energy
    EPA received the following information for the heating values of
processed OTRTs: 6,867 Btu/lb for creosote-borate; 7,333 Btu/lb for
copper naphthenate; 5,967 Btu/lb for copper naphthenate-borate; 5,232
Btu/lb for mixed railroad ties containing 56% creosote, 41% creosote-
borate, 1% copper naphthenate, 2% copper naphthenate-borate; and 7,967
Btu/lb for mixed ties containing 25% creosote, 25% creosote borate, 25%
copper naphthenate and 25% copper

naphthenate-borate.\25\ \26\ In the March 2011 NHSM final rule, the
Agency indicated that NHSMs with an energy value greater than 5,000
Btu/lb, as fired, are considered to have a meaningful heating
value.\27\ Thus, OTRTs meet the criterion for meaningful heating value
and used as a fuel to recover energy.
---------------------------------------------------------------------------

    \25\ Letter from Jeff Miller to Barnes Johnson, September 11,
2015; see docket for this rule.
    \26\ These values reflect averages from 2013 and 2015 data.
Relevant lab data on Btu/lb for each types of processed OTRT can be
viewed in the September and October 2015 letters from Jeff Miller to
Barnes Johnson included in the docket.
    \27\ See 76 FR 15541, March 21, 2011.
---------------------------------------------------------------------------

iii. Contaminants Comparable to or Lower Than Traditional Fuels
    For each type of OTRT, EPA has compared the September 2015 data
submitted on contaminant levels by petitioners to contaminant data for
biomass/untreated wood, and fuel oil. In response to comments on the
proposal, EPA has also taken the September 2015 data and compared them
to coal. The petitioner's data included samples taken from 15 different
used creosote-borate ties, 15 different copper naphthenate-borate ties,
15 creosote ties, and 15 copper naphthenate ties. Each type of tie
sample was divided into three groups of five tie samples each. This
resulted in 12 total groups corresponding to the four different types
ties. Each group was then isolated, mixed together, processed into a
fuel-type consistency, and shipped to the laboratory for analysis.
    Use of these types of ties are relatively new compared to creosote,
so few of these OTRT have transitioned to fuel use at this time, but we
expect more in the future. To simulate that transition over time, three
samples of unequally-blended tie material (56% creosote, 41% creosote-
borate, 1% copper naphthenate, 2% copper naphthenate-borate) and three
samples of equally blended tie material (25% creosote, 25% creosote-
borate, 25% copper naphthenate, 25% copper naphthenate-borate) were
analyzed. The lab analyzed three samples of each of the processed tie
treated with creosote, creosote-borate, copper naphthenate and copper
naphthenate-borate. In addition, the lab analyzed three samples of
equally-blended tie material, three samples of unevenly-blended tie
material, and three samples of untreated wood for a total of 18
samples.
    In addition to September 2015 data, copper naphthenate-borate, and
copper naphthenate test data had also been submitted in conjunction
with TWC's earlier December 4, 2013 petition and are included in the
following tables. As noted in section II.B of this preamble, the 2013
data did not have details on the number of samples collected. In
addition, sulfur was measured using leachable anion techniques that do
not provide results of the total contaminant content, and heat content
was not measured. Therefore, the Agency's decisions are based on the
complete data submitted in 2015 supplemented by the 2013 data. The
results of the analysis of the 2015 and 2013 data are shown in the
following tables.
Copper Naphthenate

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

Phenanthrene................................           8.2-77          0.9-190        0-116,000               --
Pyrene......................................            ND-15          0.2-160           23-178               --
16-PAH......................................           49-298            5-921     3,900-54,700       \ h\ 6-253
PAH (52 extractable)........................           \e\ --               --               --         14-2,090
Pentachlorophenol...........................        \g\ ND<30             ND-1               --               --
Biphenyl....................................           \e\ --               --      1,000-1,200               --
                                             -------------------------------------------------------------------
    Total SVOC \c\..........................           77-328            5-922     4,900-54,700         20-2,343
----------------------------------------------------------------------------------------------------------------
                       Volatile Organic Compound Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene.....................................          ND<0.69               --            ND-75            ND-38
Phenol......................................           \e\ --               --         ND-7,700               --
Styrene.....................................          ND<0.69               --           ND-320           1.0-26
Toluene.....................................          ND<0.69               --           ND-380           8.6-56
Xylenes.....................................          ND<0.69               --         ND-3,100           4.0-28
Cumene......................................           \e\ --               --      6,000-8,600               --
Ethyl benzene...............................          ND<0.69               --         22-1,270          0.7-5.4
Formaldehyde................................           \e\ --           1.6-27               --               --
Hexane......................................           \e\ --               --        50-10,000               --
                                             -------------------------------------------------------------------
    Total VOC \d\...........................           ND<3.4           1.6-27     6,072-19,810       14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on April 3, 2013, September 11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
  https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. Contaminant data
  drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and
  Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This
  is because minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same
  sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC
  group, so is not reflected here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated wood, but these are not expected to be
  present in treated wood formulation being analyzed based on preservative chemistry and results from previous
  CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting limit, not the method detection limit.
  Therefore, there are many cases where the non-detect value may be greater than another test's detected value
  due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or
  analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method
  reporting limit (MRL), which is always greater than MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on preservative chemistry.
\h\ EPA has generally defined ``comparable to or lower than'' to mean contaminants can be presented in NHSMs
  within a small acceptable range or at lower levels, relative to the contaminants found in the traditional
  fuels. Thus, fuels that are produced from nonhazardous secondary materials can have contaminants that are
  somewhat higher than the traditional fuel that otherwise would be burned and still qualify as being
  comparable, and would not be considered a solid waste (76 FR 15481).

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

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

Fluorine....................................           ND<100           ND-300            ND-14           ND-178
Nitrogen....................................           ND<500       200-39,500         42-8,950    13,600-54,000
Sulfur......................................          140-170         ND-8,700        ND-57,000       740-61,300
----------------------------------------------------------------------------------------------------------------
                              Semivolatile Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................           4.8-17            ND-50              111               --
Acenaphthylene..............................           ND-0.9             ND-4              4.1               --
Anthracene..................................           ND-7.2           0.4-87               96               --
Benzo[a]anthracene..........................           ND-3.7            ND-62         41-1,900               --
Benzo[a]pyrene..............................           ND-1.4            ND-28         0.60-960               --
Benzo[b]fluoranthene........................           ND-3.9            ND-42           11-540               --
Benzo[ghi]perylene..........................           ND<1.2             ND-9             11.4               --
Benzo[k]fluoranthene........................            ND-20        \h\ ND-16              0.6               --
Chrysene....................................           ND-6.6            ND-53        2.2-2,700               --
Dibenz [a, h] anthracene....................           ND<1.2             ND-3              4.0               --
Fluoranthene................................            ND-20          0.6-160         31.6-240               --
Fluorene....................................           2.2-16            ND-40            3,600               --
Indeno[1,2,3-cd] pyrene.....................           ND<1.2            ND-12              2.3               --
Naphthalene.................................           5.2-82        \h\ ND-38       34.3-4,000               --
Phenanthrene................................           3.6-43          0.9-190        0-116,000               --
Pyrene......................................            ND-19          0.2-160           23-178               --
16-PAH......................................           39-145            5-921     3,900-54,700            6-253
PAH (52 extractable)........................           \e\ --               --               --         14-2,090
Pentachlorophenol...........................       \g\ ND <28             ND-1               --               --
Biphenyl....................................           \e\ --               --      1,000-1,200               --
                                             -------------------------------------------------------------------
    Total SVOC \c\..........................           66-173            5-922     4,900-54,700         20-2,343
----------------------------------------------------------------------------------------------------------------
                       Volatile Organic Compound Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene.....................................          ND<0.77               --            ND-75            ND-38
Phenol......................................           \e\ --               --         ND-7,700               --
Styrene.....................................          ND<0.77               --           ND-320           1.0-26
Toluene.....................................          ND<0.77               --           ND-380           8.6-56
Xylenes.....................................          ND<0.77               --         ND-3,100           4.0-28
Cumene......................................           \e\ --               --      6,000-8,600               --
Ethyl benzene...............................          ND<0.77               --         22-1,270          0.7-5.4
Formaldehyde................................           \e\ --           1.6-27               --               --
Hexane......................................           \e\ --               --        50-10,000               --
                                             -------------------------------------------------------------------
    Total VOC \d\...........................           ND<3.8           1.6-27     6,072-19,810       14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on April 3, 2013, September 11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
  https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. Contaminant data
  drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and
  Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This
  is because minimum and maximum concentrations for individual VOCs and SVOCs do not always come from the same
  sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC
  group, so is not reflected here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated wood, but these are not expected to be
  present in treated wood formulation being analyzed based on preservative chemistry and results from previous
  CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting limit, not the method detection limit.
  Therefore, there are many cases where the non-detect value may be greater than another test's detected value
  due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or
  analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method
  reporting limit (MRL), which is always greater than MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on preservative chemistry.
\h\ EPA has generally defined ``comparable to or lower than'' to mean contaminants can be presented in NHSMs
  within a small acceptable range or at lower levels, relative to the contaminants found in the traditional
  fuels. Thus, fuels that are produced from nonhazardous secondary materials can have contaminants that are
  somewhat higher than the traditional fuel that otherwise would be burned and still qualify as being
  comparable, and would not be considered a solid waste (76 FR 15481).

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

----------------------------------------------------------------------------------------------------------------
                                                 Creosote-
                                              borate railroad      Biomass/
                 Contaminant                        ties        untreated wood    Fuel oil \b\       Coal \b\
                                                contaminant          \b\
                                               levels \a\ \f\
----------------------------------------------------------------------------------------------------------------
                                         Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony....................................           ND<1.3            ND-26          ND-15.7           0.5-10
Arsenic.....................................          ND-0.80           ND-298            ND-13          0.5-174
Beryllium...................................         ND-0.032            ND-10            ND-19          0.1-206
Cadmium.....................................       0.059-0.25            ND-17           ND-1.4           0.1-19
Chromium....................................         0.10-1.1           ND-340            ND-37          0.5-168
Cobalt......................................          ND-0.22           ND-213           ND-8.5           0.5-30
Lead........................................           ND-1.8           ND-340          ND-56.8            2-148
Manganese...................................           22-140        ND-15,800         ND-3,200            5-512
Mercury.....................................         ND-0.066           ND-1.1           ND-0.2         0.02-3.1
Nickel......................................         0.71-1.8           ND-540           ND-270          0.5-730
Selenium....................................         0.59-1.4           ND-9.0             ND-4         0.2-74.3
----------------------------------------------------------------------------------------------------------------
                                       Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine....................................           ND<100         ND-5,400         ND-1,260         ND-9,080
Fluorine....................................           ND<100           ND-300            ND-14           ND-178
Nitrogen....................................           ND<500       200-39,500         42-8,950    13,600-54,000
Sulfur......................................          170-180         ND-8,700        ND-57,000       740-61,300
----------------------------------------------------------------------------------------------------------------
                                      Semivolatile Hazardous Air Pollutants
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................        600-2,200            ND-50              111               --
Acenaphthylene..............................            17-96             ND-4              4.1               --
Anthracene..................................        350-2,000           0.4-87               96               --
Benzo[a]anthracene..........................        200-1,500            ND-62         41-1,900               --
Benzo[a]pyrene..............................           62-500            ND-28         0.60-960               --
Benzo[b]fluoranthene........................          110-960            ND-42           11-540               --
Benzo[ghi]perylene..........................           13-170             ND-9             11.4               --
Benzo[k]fluoranthene........................           40-320            ND-16              0.6               --
Chrysene....................................        210-1,300            ND-53        2.2-2,700               --
Dibenz [a, h] anthracene....................            ND-58             ND-3              4.0               --
Fluoranthene................................      1,100-8,400          0.6-160         31.6-240               --
Fluorene....................................        500-2,200            ND-40            3,600               --
Indeno[1,2,3-cd] pyrene.....................           14-170            ND-12              2.3               --
Naphthalene.................................        660-2,900            ND-38       34.3-4,000               --
Phenanthrene................................     2,000-12,000          0.9-190        0-116,000               --
Pyrene......................................        780-5,200          0.2-160           23-178               --
16-PAH......................................     6,600-38,000            5-921     3,900-54,700            6-253
PAH (52 extractable)........................           \e\ --               --               --         14-2,090
Pentachlorophenol...........................      \g\ ND <790             ND-1               --               --
Biphenyl....................................      \h\ 137-330               --      1,000-1,200               --
                                             -------------------------------------------------------------------
    Total SVOC \c\..........................     7,200-39,000            5-922     4,900-54,700         20-2,343
----------------------------------------------------------------------------------------------------------------
                       Volatile Organic Compound Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene.....................................           ND<3.9               --            ND-75            ND-38
Phenol......................................           \e\ --               --         ND-7,700               --
Styrene.....................................           ND<3.9               --           ND-320           1.0-26
Toluene.....................................           ND<3.9               --           ND-380           8.6-56
Xylenes.....................................           ND<3.9               --         ND-3,100           4.0-28
Cumene......................................           \e\ --               --      6,000-8,600               --
Ethyl benzene...............................           ND<3.9               --         22-1,270          0.7-5.4
Formaldehyde................................           \e\ --           1.6-27               --               --
Hexane......................................           \e\ --               --        50-10,000               --
                                             -------------------------------------------------------------------
    Total VOC \d\...........................            ND<20           1.6-27     6,072-19,810       14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on September 11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
  https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. Contaminant data
  drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and
  Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
\c\ For SVOC contaminant analyses, grouping of contaminants is appropriate in this case when making contaminant
  comparisons for purposes of meeting the legitimacy criterion. Under the grouping concept, individual SVOC
  levels may be elevated above that of the traditional fuel, but the contaminant legitimacy criterion will be
  met as long as total SVOCs is comparable to or less than that of the traditional fuel. Such an approach is
  standard practice employed by the Agency in developing regulations and is consistent with monitoring standards
  under CAA sections 112 and 129. See 78 FR 9146, February 7, 2013, for further findings that relate to the
  issue of grouping contaminants. Note also, total SVOC ranges do not represent a simple sum of the minimum and
  maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs
  and SVOCs do not always come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC
  group, so is not reflected here.

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

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

    \28\ We note that for several SVOCs--cresols, hexachlorobenzene,
and 2,4-dinitrotoluene, which were expected to be in creosote, and
for which information was specifically requested in the February 7,
2013 NHSM final rule (78 FR 9111), the data demonstrate that they
were not detectable, or were present at levels so low to be
considered comparable.
---------------------------------------------------------------------------

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

    \29\ As discussed previously, the March 21, 2011 NHSM final rule
(76 FR 15456), noting the presence of hexachlorobenzene and
dinitrotoluene, suggested that creosote-treated lumber include
contaminants at levels that are not comparable to those found in
wood or coal, the fuel that creosote-treated wood would replace, and
would thus be considered solid wastes. The February 8, 2016 final
rule (81 FR 6688) differs in several respects from the conclusions
in the March 2011 rule. The February 2016 final rule concludes that
CTRTs are a categorical non-waste when combusted in units designed
to burn both fuel oil and biomass. The March 2011 rule, using 1990
data on railroad cross ties, was based on contaminant comparisons to
coal and biomass and not fuel oil. As discussed above, when compared
to fuel oil, total SVOC contaminant concentrations (which would
include dinitrotoluene and hexachlorobenzene) in CTRTs would be less
that those found in fuel oil, and in fact, the 2012 data referenced
in this final rule showed non-detects for those two contaminants.
---------------------------------------------------------------------------

    As stated in the preamble to the February 7, 2013, NHSM final rule,
combustors may burn NHSMs as a product fuel if the contaminants are
comparable to or lower than a traditional fuel the unit is designed to
burn (78 FR 9149). Combustion units are often designed to burn multiple
traditional fuels, and some units can and do rely on different fuel
types at different times based on availability of fuel supplies, market
conditions, power demands, and other factors. Under these
circumstances, it is arbitrary to restrict the combustion for energy
recovery of NHSMs based on contaminant comparison to only one
traditional fuel if the unit could burn a second traditional fuel
chosen due to such changes in fuel supplies, market conditions, power
demands or other factors. If a unit can burn both a solid and liquid
fuel, then comparison to either fuel would be appropriate.
    In order to make comparisons to multiple traditional fuels, units
must be designed to burn those fuels. If a facility compares
contaminants in an NHSM to a traditional fuel a unit is not designed to
burn, and that material is highly contaminated, a facility would then
be able to burn excessive levels of waste components in the NHSM as a
means of discard. Such NHSMs would be considered wastes regardless of
any fuel value (78 FR 9149, February 7, 2013).\30\ Accordingly, the
ability to burn a fuel in a combustion unit does have a basic set of
requirements, the most basic of which is the ability to feed the
material into the combustion unit. The unit must also be able to ensure
the material is well-mixed and maintain temperatures within unit
specifications.
---------------------------------------------------------------------------

    \30\ 78 FR 9149 states ``If a NHSM does not contain contaminants
at levels comparable to or lower than those found in any [emphasis
added] traditional fuel that a combustion unit could burn, then it
follows that discard could be occurring if the NHSM were combusted.
Whether contaminants in these cases would be destroyed or discarded
through releases to the air, they could not be considered a normal
part of a legitimate fuel and the NHSM would be considered a solid
waste when used as a fuel in that combustion unit.''
---------------------------------------------------------------------------

Mixed Treatments--Creosote, Borate, Copper Naphthenate

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

                                       Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine....................................           ND<100         ND-5,400         ND-1,260         ND-9,080
Fluorine....................................           ND<100           ND-300            ND-14           ND-178
Nitrogen....................................           ND<500       200-39,500         42-8,950    13,600-54,000
Sulfur......................................          140-210         ND-8,700        ND-57,000       740-61,300
----------------------------------------------------------------------------------------------------------------
                              Semivolatile Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................        500-1,100            ND-50              111               --
Acenaphthylene..............................            12-25             ND-4              4.1               --
Anthracene..................................        290-1,100           0.4-87               96               --
Benzo[a]anthracene..........................          140-350            ND-62         41-1,900               --
Benzo[a]pyrene..............................           47-120            ND-28         0.60-960               --
Benzo[b]fluoranthene........................           83-210            ND-42           11-540               --
Benzo[ghi]perylene..........................           9.4-23             ND-9             11.4               --
Benzo[k]fluoranthene........................            30-64            ND-16              0.6               --
Chrysene....................................          160-360            ND-53        2.2-2,700               --
Dibenz [a, h] anthracene....................           ND-4.7         \i\ ND-3          \i\ 4.0               --
Fluoranthene................................        800-2,100          0.6-160         31.6-240               --
Fluorene....................................        350-1,000            ND-40            3,600               --
Indeno[1,2,3-cd] pyrene.....................            10-28            ND-12              2.3               --
Naphthalene.................................          320-580            ND-38       34.3-4,000               --
Phenanthrene................................      1,300-3,800          0.9-190        0-116,000               --
Pyrene......................................        520-1,400          0.2-160           23-178               --
16-PAH......................................     4,500-12,000            5-921     3,900-54,700            6-253
PAH (52 extractable)........................           \e\ --               --               --         14-2,090
Pentachlorophenol...........................           \g\ ND             ND-1               --               --
Biphenyl....................................      \h\ 137-330               --      1,000-1,200               --
                                             -------------------------------------------------------------------
    Total SVOC \c\..........................     4,800-13,000            5-922     4,900-54,700         20-2,343
----------------------------------------------------------------------------------------------------------------
                                   Volatile Organic Compounds (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene.....................................           ND<1.1               --            ND-75            ND-38
Phenol......................................           \e\ --               --         ND-7,700               --
Styrene.....................................           ND<1.1               --           ND-320           1.0-26
Toluene.....................................           ND<1.1               --           ND-380           8.6-56
Xylenes.....................................           ND<1.1               --         ND-3,100           4.0-28
Cumene......................................           \e\ --               --      6,000-8,600               --
Ethyl benzene...............................           ND<1.1               --         22-1,270          0.7-5.4
Formaldehyde................................           \e\ --           1.6-27               --               --
Hexane......................................           \e\ --               --        50-10,000               --
                                             -------------------------------------------------------------------
    Total VOC \d\...........................           ND<5.3           1.6-27     6,072-19,810       14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on September 11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
  https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison. Contaminant data
  drawn from various literature sources and from data submitted to USEPA, Office of Air Quality Planning and
  Standards (OAQPS). SVOC values from 2013 IECP data that will be available in the rule docket. As units must be
  designed to burn both fuel oil and biomass, contaminant concentrations in mixed creosote ties must be lower
  than either fuel oil or biomass to be comparable.
\c\ For SVOC contaminant analyses, grouping of contaminants is appropriate in this case when making contaminant
  comparisons for purposes of meeting the legitimacy criterion. Under the grouping concept, individual SVOC
  levels may be elevated above that of the traditional fuel, but the contaminant legitimacy criterion will be
  met as long as total SVOCs is comparable to or less than that of the traditional fuel. Such an approach is
  standard practice employed by the Agency in developing regulations and is consistent with monitoring standards
  under CAA sections 112 and 129. See 78 FR 9146, February 7, 2013, for further findings that relate to the
  issue of grouping contaminants. Note also, total SVOC ranges do not represent a simple sum of the minimum and
  maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs
  and SVOCs do not always come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC
  group, so is not reflected here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated wood, but these are not expected to be
  present in treated wood formulation being analyzed based on preservative chemistry and results from previous
  CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting limit, not the method detection limit.
  Therefore, there are many cases where the non-detect value may be greater than another test's detected value
  due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or
  analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method
  reporting limit (MRL), which is always greater than MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for treated wood type based on data from
  previous CTRT testing.

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

----------------------------------------------------------------------------------------------------------------
                                               Mixed railroad
                                                ties (56%C-
                                               41%CB- 1%CuN-       Biomass/
                 Contaminant                      2%CuNB)       untreated wood    Fuel oil \b\       Coal \b\
                                                contaminant          \b\
                                               levels \a\ \f\
----------------------------------------------------------------------------------------------------------------
                                         Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Antimony....................................               ND            ND-26          ND-15.7           0.5-10
Arsenic.....................................          ND-0.65           ND-298            ND-13          0.5-174
Beryllium...................................               ND            ND-10            ND-19          0.1-206
Cadmium.....................................        0.08-0.09            ND-17           ND-1.4           0.1-19
Chromium....................................        0.12-0.78           ND-340            ND-37          0.5-168
Cobalt......................................          ND-0.18           ND-213           ND-8.5           0.5-30
Lead........................................          ND-0.93           ND-340          ND-56.8            2-148
Manganese...................................            47-77        ND-15,800         ND-3,200            5-512
Mercury.....................................          ND-0.03           ND-1.1           ND-0.2         0.02-3.1
Nickel......................................        0.50-0.99           ND-540           ND-270          0.5-730
Selenium....................................        0.56-0.68           ND-9.0             ND-4         0.2-74.3
----------------------------------------------------------------------------------------------------------------
                                       Non-Metal Elements (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Chlorine....................................           ND<100         ND-5,400         ND-1,260         ND-9,080
Fluorine....................................           ND<100           ND-300            ND-14           ND-178
Nitrogen....................................           ND<500       200-39,500         42-8,950    13,600-54,000
Sulfur......................................          230-280         ND-8,700        ND-57,000       740-61,300
----------------------------------------------------------------------------------------------------------------
                              Semivolatile Hazardous Air Pollutants (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Acenaphthene................................      1,500-1,800            ND-50              111               --
Acenaphthylene..............................            31-40             ND-4              4.1               --
Anthracene..................................        760-1,100           0.4-87               96               --
Benzo[a]anthracene..........................          390-490            ND-62         41-1,900               --
Benzo[a]pyrene..............................          150-200            ND-28         0.60-960               --
Benzo[b]fluoranthene........................          230-310            ND-42           11-540               --
Benzo[ghi]perylene..........................            28-56             ND-9             11.4               --
Benzo[k]fluoranthene........................           93-130            ND-16              0.6               --
Chrysene....................................          390-520            ND-53        2.2-2,700               --
Dibenz [a, h] anthracene....................            ND<28             ND-3              4.0               --
Fluoranthene................................      2,000-2,700          0.6-160         31.6-240               --
Fluorene....................................      1,100-1,300            ND-40            3,600               --
Indeno[1,2,3-cd] pyrene.....................            32-52            ND-12              2.3               --
Naphthalene.................................        890-1,200            ND-38       34.3-4,000               --
Phenanthrene................................      3,600-4,500          0.9-190        0-116,000               --
Pyrene......................................      1,300-1,800          0.2-160           23-178               --
16-PAH......................................    13,000-16,000            5-921     3,900-54,700            6-253
PAH (52 extractable)........................               --               --               --         14-2,090
Pentachlorophenol...........................           \g\ ND             ND-1               --               --
Biphenyl....................................      \h\ 137-330               --      1,000-1,200               --
                                             -------------------------------------------------------------------
    Total SVOC \c\..........................    13,000-17,000            5-922     4,900-54,700         20-2,343
----------------------------------------------------------------------------------------------------------------
                                   Volatile Organic Compounds (ppm-dry basis)
----------------------------------------------------------------------------------------------------------------
Benzene.....................................           ND<2.3               --            ND-75            ND-38
Phenol......................................           \e\ --               --         ND-7,700               --
Styrene.....................................           ND<2.3               --           ND-320           1.0-26
Toluene.....................................           ND<2.3               --           ND-380           8.6-56
Xylenes.....................................           ND<2.3               --         ND-3,100           4.0-28
Cumene......................................           \e\ --               --      6,000-8,600               --
Ethyl benzene...............................           ND<2.3               --         22-1,270          0.7-5.4
Formaldehyde................................           \e\ --           1.6-27               --               --
Hexane......................................           \e\ --               --        50-10,000               --
                                             -------------------------------------------------------------------
    Total VOC \d\...........................            ND<12           1.6-27     6,072-19,810       14.3-125.4
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Data provided by Treated Wood Council on September 11, 2015 and October 19, 2015.

\b\ Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at
  (insert link) https://www.epa.gov/rcra/contaminant-concentrations-traditional-fuels-tables-comparison.
  Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air Quality
  Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket. As
  units must be designed to burn both fuel oil and biomass, contaminant concentrations in mixed creosote ties
  must be lower than either fuel oil or biomass to be comparable.
\c\ For SVOC contaminant analyses, grouping of contaminants in this case is appropriate when making contaminant
  comparisons for purposes of meeting the legitimacy criterion. Under the grouping concept, individual SVOC
  levels may be elevated above that of the traditional fuel, but the contaminant legitimacy criterion will be
  met as long as total SVOCs is comparable to or less than that of the traditional fuel. Such an approach is
  standard practice employed by the Agency in developing regulations and is consistent with monitoring standards
  under CAA sections 112 and 129. See 78 FR 9146, February 7, 2013, for further findings that relate to the
  issue of grouping contaminants. Note also, total SVOC ranges do not represent a simple sum of the minimum and
  maximum values for each contaminant. This is because minimum and maximum concentrations for individual VOCs
  and SVOCs do not always come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC
  group, so is not reflected here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated wood, but these are not expected to be
  present in treated wood formulation being analyzed based on preservative chemistry and results from previous
  CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting limit, not the method detection limit.
  Therefore, there are many cases where the non-detect value may be greater than another test's detected value
  due to analysis-specific RLs being different between individual tests (i.e., differences in tested amount or
  analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method
  reporting limit (MRL), which is always greater than MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for treated wood type based on data from
  previous CTRT testing.