Additions to List of Section 241.4 Categorical Non-Waste Fuels: Other Treated Railroad Ties, 75781-75801 [2016-26381]
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Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Proposed Rules
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information about CBI or multimedia
submissions, and general guidance on
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FOR FURTHER INFORMATION CONTACT:
Edward J. Linky, Environmental
Protection Agency, Air Programs
Branch, 290 Broadway New York, New
York 1007–1866 at 212–637–3764 or by
email at linky.edward@epa.gov.
In the
final rules section of this Federal
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submitted November 13, 2006, the State
of New Jersey’s negative declaration
submitted April 5, 2006 and the
Commonwealth of Puerto Rico’s
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direct final rule which is located in the
rules section of this Federal Register.
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SUPPLEMENTARY INFORMATION:
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List of Subjects in 40 CFR Part 62
Environmental protection, Air
pollution control, Administrative
practice and procedure,
Intergovernmental relations, Reporting
and recordkeeping requirements,
Sewage sludge incinerators.
Dated: October 3, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2016–26172 Filed 10–31–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 241
[EPA–HQ–OLEM–2016–0248; FRL–9953–
38–OLEM]
RIN 2050–AG83
Additions to List of Section 241.4
Categorical Non-Waste Fuels: Other
Treated Railroad Ties
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA or the Agency) is
proposing to issue amendments to the
Non-Hazardous Secondary Materials
rule, initially promulgated on March 21,
2011, and amended on February 7, 2013
and February 8, 2016, under the
Resource Conservation and Recovery
Act. The Non-Hazardous Secondary
Materials rule generally established
standards and procedures for
identifying whether non-hazardous
secondary materials are solid wastes
when used as fuels or ingredients in
combustion units. In the February 7,
2013 amendments, the EPA listed
particular non-hazardous secondary
materials as ‘‘categorical non-waste
fuels’’ provided certain conditions are
met. Persons burning these nonhazardous secondary materials do not
need to evaluate them under the general
self-implementing case-by-case
standards and procedures that would
otherwise apply to non-hazardous
secondary materials used in combustion
units. The February 8, 2016
amendments added three materials
including creosote treated railroad ties
to the list of categorical non-waste fuels.
This action proposes to add other
treated railroad ties to the list, which are
processed creosote-borate, copper
naphthenate and copper naphthenateborate treated railroad ties, under
certain conditions depending on the
chemical treatment.
SUMMARY:
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Comments must be received on
or before January 3, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OLEM–2016–0248, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the Web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
George Faison, Office of Resource
Conservation and Recovery, Materials
Recovery and Waste Management
Division, MC 5304P, Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460;
telephone number: (703) 305–7652;
email: faison.george@epa.gov.
SUPPLEMENTARY INFORMATION:
The following outline is provided to
aid in locating information in this
preamble.
DATES:
I. General Information
A. List of Abbreviations and Acronyms
Used in This Proposed Rule
B. What is the statutory authority for this
proposed rule?
C. Does this proposed rule apply to me?
D. What is the purpose of this proposed
rule?
II. Background
A. History of the NHSM Rulemakings
B. Background to This Proposed Rule
C. How will EPA make categorical nonwaste determinations?
III. Proposed Categorical Non-Waste Listing
Determination for OTRTs
A. Detailed Description of OTRTs
B. OTRTs under Current NHSM Rules
C. Scope of the Proposed Categorical NonWaste Listing for OTRTs
D. Rationale for Proposed Listing
E. Summary and Request for Comment
F. Copper and Borates Literature Review
and Other EPA Program Review
Summary
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IV. Effect of This Proposal on Other Programs
V. State Authority
A. Relationship to State Programs
B. State Adoption of the Rulemaking
VI. Cost and Benefits
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
(UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children from Environmental Health
Risks and Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions
to Address Environmental Justice in
Minority Populations and Low-Income
Populations
I. General Information
A. List of Abbreviations and Acronyms
Used in This Proposed Rule
Btu
British thermal unit
C&D Construction and demolition
CAA Clean Air Act
CBI Confidential business information
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid
Waste Incinerator
CTRT Cresosote-treated railroad ties
EPA U.S. Environmental Protection Agency
FR Federal Register
HAP Hazardous air pollutant
MACT Maximum achievable control
technology
NAICS North American Industrial
Classification System
ND Non-detect
NESHAP National emission standards for
hazardous air pollutants
NHSM Non-hazardous secondary material
OMB Office of Management and Budget
PAH Polycyclic aromatic hydrocarbons
ppm Parts per million
RCRA Resource Conservation and Recovery
Act
RIN Regulatory information number
RL Reporting Limits
SBA Small Business Administration
SO2 Sulfur dioxide
SVOC Semi-volatile organic compound
TCLP Toxicity characteristic leaching
procedure
UPL Upper prediction limit
U.S.C. United States Code
VOC Volatile organic compound
B. What is the statutory authority for
this proposed rule?
The EPA is proposing that additional
non-hazardous secondary materials
(NHSMs) be categorically listed as nonwaste fuels in 40 CFR 241.4(a) under the
authority of sections 2002(a)(1) and
1004(27) of the Resource Conservation
and Recovery Act (RCRA), as amended,
42 U.S.C. 6912(a)(1) and 6903(27).
Section 129(a)(1)(D) of the Clean Air Act
(CAA) directs the EPA to establish
standards for Commercial and Industrial
Solid Waste Incinerators (CISWI), which
burn solid waste. Section 129(g)(6) of
the CAA provides that the term ‘‘solid
waste’’ is to be established by the EPA
under RCRA (42 U.S.C. 7429(g)(6)).
Section 2002(a)(1) of RCRA authorizes
the Agency to promulgate regulations as
are necessary to carry out its functions
under the Act. The statutory definition
of ‘‘solid waste’’ is stated in RCRA
section 1004(27).
C. Does this proposed rule apply to me?
Categories and entities potentially
affected by this action, either directly or
indirectly, include, but may not be
limited to the following:
GENERATORS AND POTENTIAL USERS a OF THE NEW MATERIALS PROPOSED TO BE ADDED TO THE LIST OF CATEGORICAL
NON-WASTE FUELS
NAICS b
Primary industry category or sub category
Utilities .................................................................................................................................................................................................
Construction of Buildings .....................................................................................................................................................................
Site Preparation Contractors ...............................................................................................................................................................
Manufacturing ......................................................................................................................................................................................
Wood Product Manufacturing ..............................................................................................................................................................
Sawmills ...............................................................................................................................................................................................
Wood Preservation (includes crosstie creosote treating) ....................................................................................................................
Pulp, Paper, and Paper Products ........................................................................................................................................................
Cement manufacturing ........................................................................................................................................................................
Railroads (includes line haul and short line) .......................................................................................................................................
Scenic and Sightseeing Transportation, Land (Includes: railroad, scenic and sightseeing) ..............................................................
Port and Harbor Operations (Used railroad ties) ................................................................................................................................
Landscaping Services ..........................................................................................................................................................................
Solid Waste Collection .........................................................................................................................................................................
Solid Waste Landfill .............................................................................................................................................................................
Solid Waste Combustors and Incinerators ..........................................................................................................................................
Marinas ................................................................................................................................................................................................
a Includes:
221
236
238910
31, 32, 33
321
321113
321114
322
32731
482
487110
488310
561730
562111
562212
562213
713930
Major Source Boilers, Area Source Boilers, and Solid Waste Incinerators.
American Industrial Classification System.
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b NAICS—North
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,
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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.
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D. What is the purpose of this proposed
rule?
The RCRA statute defines ‘‘solid
waste’’ as ‘‘any garbage, refuse, sludge
from a waste treatment plant, water
supply treatment plant, or air pollution
control facility and other discarded
material . . . resulting from industrial,
commercial, mining, and agricultural
operations, and from community
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activities.’’ (RCRA section 1004(27)
(emphasis added)). The key concept is
that of ‘‘discard’’ and, in fact, this
definition turns on the meaning of the
phrase, ‘‘other discarded material,’’
since this term encompasses all other
examples provided in the definition.
The meaning of ‘‘solid waste,’’ as
defined under RCRA, is of particular
importance as it relates to section 129 of
the CAA. If material is a solid waste
under RCRA, a combustion unit burning
it is required to meet the CAA section
129 emission standards for solid waste
incineration units. If the material is not
a solid waste, combustion units are
required to meet the CAA section 112
emission standards for commercial,
industrial, and institutional boilers.
Under CAA section 129, the term ‘‘solid
waste incineration unit’’ is defined, in
pertinent part, to mean ‘‘a distinct
operating unit of any facility which
combusts any solid waste material from
commercial or industrial
establishments.’’ 42 U.S.C. 7429(g)(1).
CAA section 129 further states that the
term ‘‘solid waste’’ shall have the
meaning ‘‘established by the
Administrator pursuant to the Solid
Waste Disposal Act.’’ Id at 7429(g)(6).
The Solid Waste Disposal Act, as
amended, is commonly referred to as
the Resource Conservation and
Recovery Act or RCRA.
Regulations concerning NHSMs used
as fuels or ingredients in combustion
units are codified in 40 CFR part 241.1
This action proposes to amend the Part
241 regulations by adding three NHSMs
to the list of categorical non-waste fuels
codified in § 241.4(a). These new
proposed categorical listings are for:
• Creosote-borate railroad ties (and
mixtures of creosote, copper
naphthenate and copper naphthenateborate railroad ties) that are processed
and then combusted in units designed
to burn both biomass and fuel oil. Such
combustion must be part of normal
operations and not solely as part of
start-up or shut-down operations. Also
included are units at major source pulp
and paper mills or power producers 2
subject to 40 CFR part 63, subpart
DDDDD that combust these types of
treated railroad ties and had been
designed to burn biomass and fuel oil,
but are modified (e.g., oil delivery
mechanisms were removed) in order to
use natural gas instead of fuel oil.
1 See 40 CFR 241.2 for the definition of nonhazardous secondary material.
2 40 CFR 241.2 defines power producer as a boiler
unit producing electricity for sale to the grid. The
term does not include units meeting the definition
of electricity generating unit under 40 CFR
63.10042 of the Utility Mercury and Air Toxics
Standards rule.
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Again, such combustion must be part of
normal operations and not solely as part
of start-up or shut-down operations.
These treated railroad ties may continue
to be combusted as product fuel in units
that have been modified to use natural
gas only if the following conditions are
met, which are intended to ensure that
these materials are not being discarded:
Æ 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
Æ Can comprise no more than 40
percent of the fuel that is used on an
annual heat input basis.
• Copper naphthenate railroad ties
combusted in units designed to burn
biomass, or biomass and fuel oil.
• Copper naphthenate-borate railroad
ties combusted in units designed to
burn biomass, or biomass and fuel oil.
II. Background
A. History of the NHSM Rulemakings
The Agency first solicited comments
on how the RCRA definition of solid
waste should apply to NHSMs when
used as fuels or ingredients in
combustion units in an advanced notice
of proposed rulemaking (ANPRM),
which was published in the Federal
Register on January 2, 2009 (74 FR 41).
We then published an NHSM proposed
rule on June 4, 2010 (75 FR 31844),
which the EPA made final on March 21,
2011 (76 FR 15456).
In the March 21, 2011 rule, the EPA
finalized standards and procedures to be
used to identify whether NHSMs are
solid wastes when used as fuels or
ingredients in combustion units.
‘‘Secondary material’’ was defined for
the purposes of that rulemaking as any
material that is not the primary product
of a manufacturing or commercial
process, and can include post-consumer
material, off-specification commercial
chemical products or manufacturing
chemical intermediates, post-industrial
material, and scrap (codified in 40 CFR
241.2). ‘‘Non-hazardous secondary
material’’ is a secondary material that,
when discarded, would not be
identified as a hazardous waste under
40 CFR part 261 (codified in 40 CFR
241.2). Traditional fuels, including
historically managed traditional fuels
(e.g., coal, oil, natural gas) and
‘‘alternative’’ traditional fuels (e.g.,
clean cellulosic biomass) are not
secondary materials and thus, are not
solid wastes under the rule unless
discarded (codified in 40 CFR 241.2).
A key concept under the March 21,
2011 rule is that NHSMs used as nonwaste fuels in combustion units must
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meet the legitimacy criteria specified in
40 CFR 241.3(d)(1). Application of the
legitimacy criteria helps ensure that the
fuel product is being legitimately and
beneficially used and not simply being
discarded through combustion (i.e., via
sham recycling). To meet the legitimacy
criteria, the NHSM must be managed as
a valuable commodity, have a
meaningful heating value and be used as
a fuel in a combustion unit that recovers
energy, and contain contaminants or
groups of contaminants at
concentrations comparable to (or lower
than) those in traditional fuels which
the combustion unit is designed to burn.
Based on these criteria, the March 21,
2011 rule identified the following
NHSMs as not being solid wastes:
• The NHSM is used as a fuel and
remains under the control of the
generator (whether at the site of
generation or another site the generator
has control over) that meets the
legitimacy criteria (40 CFR 241.3(b)(1));
• The NHSM is used as an ingredient
in a manufacturing process (whether by
the generator or outside the control of
the generator) that meets the legitimacy
criteria (40 CFR 241.3(b)(3));
• Discarded NHSM has been
sufficiently processed to produce a fuel
or ingredient that meets the legitimacy
criteria (40 CFR 241.3(b)(4)); or
• Through a case-by-case petition
process, it has been determined that the
NHSM handled outside the control of
the generator has not been discarded
and is indistinguishable in all relevant
aspects from a fuel product, and meets
the legitimacy criteria (40 CFR 241.3(c)).
In October 2011, the Agency
announced it would be initiating a new
rulemaking proceeding to revise certain
aspects of the NHSM rule.3 On February
7, 2013, the EPA published a final rule,
which addressed specific targeted
amendments and clarifications to the 40
CFR part 241 regulations (78 FR 9112).
These revisions and clarifications were
limited to certain issues on which the
Agency had received new information,
as well as targeted revisions that the
Agency believed were appropriate in
order to allow implementation of the
rule as the EPA originally intended. The
amendments modified 40 CFR 241.2
and 241.3, added 40 CFR 241.4, and
included the following: 4
• Revised Definitions: The EPA
revised three definitions discussed in
the proposed rule: (1) ‘‘clean cellulosic
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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biomass,’’ (2) ‘‘contaminants,’’ and (3)
‘‘established tire collection programs.’’
In addition, based on comments
received on the proposed rule, the
Agency revised the definition of
‘‘resinated wood.’’
• Contaminant Legitimacy Criterion
for NHSMs Used as Fuels: The EPA
issued revised contaminant legitimacy
criterion for NHSMs used as fuels to
provide additional details on how
contaminant-specific comparisons
between NHSMs and traditional fuels
may be made.
• Categorical Non-Waste
Determinations for Specific NHSMs
Used as Fuels. The EPA codified
determinations that certain NHSMs are
non-wastes when used as fuels. If a
material is categorically listed as a nonwaste 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 nonwaste status. Based on all available
information, the EPA determined the
following NHSMs are not solid wastes
when burned as a fuel in combustion
units and has categorically listed them
in 40 CFR 241.4(a).5
—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
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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persons an opportunity to submit a
rulemaking petition to the
Administrator, seeking a determination
for additional NHSMs to be
categorically listed in 40 CFR 241.4(a) as
non-waste fuels, if they can demonstrate
that the NHSM meets the legitimacy
criteria or, after balancing the legitimacy
criteria with other relevant factors, EPA
determines that the NHSM is not a solid
waste when used as a fuel.
The February 8, 2016 amendments (81
FR 6688) added the following to the list
of categorical non-waste fuels:
• Construction and demolition (C&D)
wood processed from C&D debris
according to best management practices.
Under this listing, combustors of C&D
wood must obtain a written certification
from C&D processing facilities that the
C&D wood has been processed by
trained operators in accordance with
best management practices. Best
management practices must include
sorting by trained operators that
excludes or removes the following
materials from the final product fuel:
Non-wood materials (e.g., polyvinyl
chloride and other plastics, drywall,
concrete, aggregates, dirt, and asbestos),
and wood treated with creosote,
pentachlorophenol, chromated copper
arsenate, or other copper, chromium, or
arsenical preservatives. Additional
required best management practices
address removal of lead-painted wood.
• Paper recycling residuals generated
from the recycling of recovered paper,
paperboard and corrugated containers
and combusted by paper recycling mills
whose boilers are designed to burn solid
fuel.
• Creosote-treated railroad ties
(CTRT) that are processed (which
includes metal removal and shredding
or grinding at a minimum) and then
combusted in the following types of
units:
Æ 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
Æ 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
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bed, fluidized bed, or hybrid suspension
grate boilers; and, CTRTs can comprise
no more than 40 percent of the fuel that
is used on an annual heat input basis.
Based on these non-waste categorical
determinations, as discussed previously,
facilities burning NHSMs that meet the
categorical listing description will not
need to make individual determinations
that the NHSM meets the legitimacy
criteria or provide further information
demonstrating their non-waste status on
a site-by-site basis, provided they meet
the conditions of the categorical listing.
B. Background to This Proposed Rule
The Agency received a petition from
the Treated Wood Council (TWC) in
April 2013 requesting that
nonhazardous treated wood (including
borate and copper naphthenate) be
categorically listed as non-waste fuels in
40 CFR 241.4(a). Under the April 2013
petition, nonhazardous treated wood
would include: Waterborne borate based
preservatives; waterborne organic based
preservatives; waterborne copper based
wood preservatives (ammoniacal/
alkaline copper quat, copper azole,
copper HDO, alkaline copper betaine, or
copper naphthenate); creosote; oilborne
copper naphthenate;
pentachlorophenol; or dual-treated with
any of the above.
In the course of EPA’s review of the
April 2013 petition, additional data was
requested and received, and meetings
were held between TWC and EPA
representatives. Overall, the EPA review
determined that there were limited data
points available and the analytical
techniques for some contaminants were
not appropriate to provide information
on the entire preserved wood sample as
it would be combusted. EPA also
questioned the representativeness of the
samples being analyzed and the
repeatability of the analyses.
In the subsequent August 21, 2015
letter from TWC to Barnes Johnson,6
TWC requested that the Agency move
forward on a subset of materials that
were identified in the original April
2013 petition which are creosote borate,
copper naphthenate, and copper
naphthenate-borate treated railroad ties.
In the letter, TWC indicated that these
types of ties are increasingly being used
as alternatives to CTRT, due, in part, to
lower overall contaminant levels and
that the ability to reuse the ties is an
important consideration in rail tie
purchasing decisions. Information from
industry also claimed that these
6 Included in the docket for the February 2016
final rule. Follow-up meetings were also held with
TWC on September 14, 2015 and December 17,
2015 summaries of which are also included in that
docket.
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treatments have proven to increase
decay resistance for ties in severe decay
environments and for species that are
difficult to treat with creosote alone.7
The letter stated that TWC will discuss
the remaining treated wood materials
with EPA as a separate matter.
The Agency reviewed TWC’s
information on the three treated railroad
ties, creosote borate, copper
naphthenate, and copper naphthenateborate, submitted on September 11,
2015 and requested additional
contaminant data, which was submitted
on October 5, 2015 and October 19,
2015.8 Based on that information, we
stated in the February 2016 final rule
that we believe these three treated
railroad ties are candidates for
categorical non-waste listings and
expected to begin development of a
proposed rule under 40 CFR 241.4(a)
regarding those listings in the near
future. The result is this proposal.
C. How will EPA make categorical nonwaste determinations?
The February 7, 2013 revisions to the
NHSM rule discuss the process and
decision criteria whereby the Agency
would make additional categorical nonwaste determinations (78 FR 9158).
While the categorical non-waste
determinations in this action are not
based on rulemaking petitions, the
criteria the EPA used to assess these
NHSMs as categorical non-wastes match
the criteria to be used by the
Administrator to determine whether to
grant or deny the categorical non-waste
petitions.9 10 These determinations
follow the criteria set out in 40 CFR
241.4(b)(5) to assess additional
categorical non-waste petitions and
follow the statutory standards as
interpreted by the EPA in the NHSM
rule for deciding whether secondary
materials are wastes. Those criteria
include: (1) Whether each NHSM has
not been discarded in the first instance
(i.e., was not initially abandoned or
thrown away) and is legitimately used
as a fuel in a combustion unit or, if
discarded, has been sufficiently
processed into a material that is
legitimately used as a fuel; and, (2) if the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
7 Railway
Tie Association ‘‘Frequently Asked
Questions’’ available on https://www.rta.org/faqs.
Assessed on August 26, 2016.
8 These data submissions and the letter from TWC
on August 21, 2015 are included in the docket for
this proposed rule.
9 For a full discussion regarding the petition
process for receiving a categorical non-waste
determination, see 78 FR 9112, February 7, 2013
(page 9158–9159).
10 Supplementary information received from by
M.A. Energy Resources (February 2013) in support
of the crosstie derived fuel was submitted as a
categorical petition in accordance 40 CFR 241.4(b).
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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, the Agency is
proposing to amend 40 CFR 241.4(a) by
listing in addition to CTRT, three other
types of treated railroad ties as
categorical non-wastes. Specific
determinations regarding these other
treated railroad ties (OTRT), i.e.,
creosote-borate, copper naphthenate,
copper naphthenate-borate and mixtures
of creosote, borate and copper
naphthenate treated railroad ties, as
categorical non-wastes, and how the
information was assessed by EPA
according to the criteria in 40 CFR
241.4(b)(5), are discussed in detail in
section III of this preamble.
The rulemaking record for this rule
(i.e., EPA–HQ–RCRA–2016–0248)
includes those documents and
information submitted specifically to
support the categorical listings
discussed in this rule. However, the
principles on which the categorical
listings are determined are based on the
NHSM rules promulgated over the past
few years, as discussed previously.
While EPA is not formally including in
the record for this rule materials
supporting the earlier NHSM
rulemaking proceedings, the Agency is
nevertheless issuing this rule consistent
with the NHSM rule and its supporting
documents. This rulemaking proceeding
in no way reopens any issues resolved
in previous NHSM rulemaking
proceedings. It simply responds to a
petition in accordance with the
standards outlined in the existing
NHSM rule.
III. Proposed Categorical Non-Waste
Listing Determination for OTRTs
The following sections describe the
OTRTs that EPA is proposing to list in
section 241.4(a) as categorical nonwastes when burned as a fuel in
combustion units.
A. Detailed Description of OTRTs
1. Processing
Industry representatives stated that
the removal of OTRTs from service and
processing of those ties into a product
fuel is analogous to that of CTRTs
described in the February 2016 rule.11
OTRTs are typically comprised of North
American hardwoods that have been
treated with a wood preservative. Most
11 81
PO 00000
of the energy recovery with OTRTs is
conducted through three parties: The
generator of the crossties (railroad or
utility); the reclamation company that
sorts the crossties, and in some cases
processes the material received from the
generator; and the combustor as third
party energy producers. Typically,
ownership of the OTRTs are generally
transferred directly from the generator
to the reclamation company that sorts
materials for highest value secondary
uses, and then sells the products to endusers, including those combusting the
material as fuel. Some reclamation
companies sell OTRTs to processors
who remove metal contaminants and
grind the ties into chipped wood. Other
reclamation companies have their own
grinders, do their own contaminant
removal, and can sell directly to the
combusting facilities. Information
submitted to the Agency indicates there
are approximately 15 OTRT recovery
companies in North America with
industry wide revenues of $65–75
million.
After crossties are removed from
service, they are transferred for sorting/
processing, but in some cases, they may
be temporarily stored in the railroad
rights-of-way or at another location
selected by the reclamation company.
One information source 12 indicated that
when the crossties are temporarily
stored, they are stored until their value
as an alternative fuel can be realized,
generally through a contract completed
for transferal of ownership to the
reclamation contractor or combustor.
This means that not all OTRTs originate
from crossties removed from service in
the same year; some OTRTs are
processed from crossties removed from
service in prior years and stored by
railroads or removal/reclamation
companies until their value as a
landscaping element or fuel could be
realized.
Typically, reclamation companies
receive OTRTs by rail. The processing of
the crossties into fuel by the
reclamation/processing companies
involves several steps. Contaminant
metals (spikes, nails, plates, etc.)
undergo initial separation and removal
by the user organization (railroad
company) during inspection. At the
reclamation company, metal is further
removed by magnets and may occur in
multiple stages. After removal of
contaminant metals, the crossties are
then ground or shredded to a specified
size depending on the particular needs
of the end-use combustor, with chip size
typically between 1–2 inches. Such
12 M.A. Energy Resources LLC, Petition submitted
to Administrator, EPA, February 2013.
FR 6688.
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grinding and shredding facilitates
handling, storage and metering to the
combustion chamber. By achieving a
uniform particle size, combustion
efficiency will be improved due to the
uniform and controlled fuel feed rate
and the ability to regulate the air
supply. Additionally, the reduction
process exposes a greater surface area of
the particle to the heated gases, thus
releasing any moisture more rapidly,
and thereby enhancing its heating
value.13 This step may occur in several
phases, including primary and
secondary grinding, or in a single phase.
Once the crossties are ground to a
specific size, there is further screening
based on the particular needs of the
end-use combustor. Depending on the
configuration of the facility and
equipment, screening may occur
concurrently with grinding or at a
subsequent stage. Once the processing
of OTRTs is complete, the OTRTs are
sold directly to the end-use combustor
for energy recovery. Processed OTRTs
are delivered to the buyers by railcar or
truck. The OTRTs are then stockpiled
prior to combustion, with a typical
storage timeframe ranging from a day to
a week. When the OTRTs are to be
burned for energy recovery, the material
is then transferred from the storage
location using a conveyor belt or frontend loader. The OTRTs may be
combined with other biomass fuels,
including hog fuel and bark. OTRTs are
commonly used to provide the high Btu
fuel to supplement low (and sometimes
wet) Btu biomass to ensure proper
combustion, often in lieu of coal or
other fossil fuels.14 The combined fuel
may be further hammered and screened
prior to combustion.
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.
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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
13 Forest and Agriculture Organization of the
United Nations. The Potential Use of Wood
Residues for Energy Generation, 2016.
14 American Forest & Paper Association,
American Wood Council—Letter to EPA
Administrator, December 6, 2012.
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applied wood preservatives, small
quantities of copper naphthenate can be
purchased at retail hardware stores and
lumberyards. Cuts or holes in treated
wood can be treated in the field with
copper naphthenate. Wood treated with
copper naphthenate has a distinctive
bright green color that weathers to light
brown. The treated wood also has an
odor that dissipates somewhat over
time. Oil borne copper naphthenate is
used for treatment of railroad ties since
that treatment results in the ties being
more resistant to cracks and checking.
Waterborne copper naphthenate is used
only for interior millwork and exterior
residential dimensional lumber
applications such as decking, fencing,
lattice, recreational equipment, and
other structures. Thus, this proposal
does not address waterborne copper
naphthenate.
Copper naphthenate can be dissolved
in a variety of solvents. The heavy oil
solvent (specified in American Wood
Protection Association (AWPA)
Standard P9, Type A) or the lighter
solvent (AWPA Standard P9, Type C)
are the most commonly used. Copper
naphthenate is listed in AWPA
standards for treatment of major
softwood species that are used for a
variety of wood products. It is not listed
for treatment of any hardwood species,
except when the wood is used for
railroad ties. The minimum copper
naphthenate retentions (as elemental
copper) range from 0.04 pounds per
cubic foot (0.6 kilograms per cubic
meter) for wood used aboveground, to
0.06 pounds per cubic foot (1 kilograms
per cubic meter) for wood that will
contact the ground and 0.075 pounds
per cubic foot (1.2 kilograms per cubic
meter) for wood used in critical
structural applications.
When dissolved in No. 2 fuel oil,
copper naphthenate can penetrate wood
that is difficult to treat. Copper
naphthenate loses some of its ability to
penetrate wood when it is dissolved in
heavier oils. Copper naphthenate
treatments do not significantly increase
the corrosion of metal fasteners relative
to untreated wood.
Copper naphthenate is commonly
used to treat utility poles, although
fewer facilities treat utility poles with
copper naphthenate than with creosote
or pentachlorophenol. Unlike creosote
and pentachlorophenol, copper
naphthenate is not listed as a Restricted
Use Pesticide (RUP) by the EPA. Even
though human health concerns do not
require copper naphthenate to be listed
as an RUP, precautions such as the use
of dust masks and gloves are used when
working with wood treated with copper
naphthenate.
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ii. Borates
Borates is the name for a large number
of compounds containing the element
boron. Borate compounds are the most
commonly used unfixed waterborne
preservatives. Unfixed preservatives can
leach from treated wood. They are used
for pressure treatment of framing lumber
used in areas with high termite hazard
and as surface treatments for a wide
range of wood products, such as cabin
logs and the interiors of wood
structures. They are also applied as
internal treatments using rods or pastes.
At higher rates of retention, borates also
are used as fire-retardant treatments for
wood.
Performance characteristics include
activity against fungi and insects, with
low mammalian toxicity. Another
advantage of boron is its ability to
diffuse with water into wood that
normally resists traditional pressure
treatment. Wood treated with borates
has no added color, no odor, and can be
finished (primed and painted).
Inorganic boron is listed as a wood
preservative in the AWPA standards,
which include formulations prepared
from sodium octaborate, sodium
tetraborate, sodium pentaborate, and
boric acid. Inorganic boron is also
standardized as a pressure treatment for
a variety of species of softwood lumber
used out of contact with the ground and
continuously protected from water. The
minimum borate (B2O3) retention is 0.17
pounds per cubic foot (2.7 kilograms per
cubic meter). A retention of 0.28 pounds
per cubic foot (4.5 kilograms per cubic
meter) is specified for areas with
Formosan subterranean termites.
Borate preservatives are available in
several forms, but the most common is
disodium octaborate tetrahydrate (DOT).
DOT has higher water solubility than
many other forms of borate, allowing
more concentrated solutions to be used
and increasing the mobility of the borate
through the wood. With the use of
heated solutions, extended pressure
periods, and diffusion periods after
treatment, DOT can penetrate species
that are relatively difficult to treat, such
as spruce. Several pressure treatment
facilities in the United States use borate
solutions. For refractory species
destined for high decay areas, it has
now become relatively common practice
to use borates as a pre-treatment to
protect the wood prior to processing
with creosote.
iii. Creosote
Creosote was introduced as a wood
preservative in the late 1800’s to
prolong the life of railroad ties. CTRTs
remain the material of choice by
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railroads due to their long life,
durability, cost effectiveness, and
sustainability. As creosote is a byproduct 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.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
B. OTRTs Under Current NHSM Rules
1. March 2011 NHSM Final Rule
The March 2011 NHSM final rule
stated that most creosote-treated wood
is non-hazardous. However, the
presence of hexachlorobenzene, a CAA
section 112 HAP, as well as other HAP
suggested that creosote-treated wood,
including CTRTs, contained
contaminants at levels that are not
comparable to or lower than those found
in wood or coal, the fuel that creosotetreated wood would replace. In making
the assessment, the Agency did not
consider fuel oil 15 as a traditional fuel
that CTRTs would replace, and
concluded at the time that combustion
of creosote-treated wood may result in
destruction of contaminants contained
in those materials. Such destruction is
an indication of incineration, a waste
activity. Accordingly, creosote-treated
wood, including CTRTs when burned,
seemed more like a waste than a
commodity, and did not meet the
contaminant legitimacy criterion. This
material, therefore, was considered a
solid waste when burned, and units’
combusting it would be subject to the
CAA section 129 emission standards (40
CFR part 60, subparts CCCC and DDDD).
Regarding borate treated wood, after
reviewing data from one commenter
which shows that the levels of
contaminants in this material are
comparable to those found in
unadulterated wood for the seven
contaminants for which data was
presented, the Agency stated in the
March 2011 rule that such treated-wood
meets the legitimacy criterion on the
level of contaminants and comparability
to traditional fuels. Therefore, under
that rule, borate-treated wood could be
classified as a non-waste fuel, provided
they met the other two legitimacy
criteria and provided that the
contaminant levels for any other HAP
that may be present in this material are
also comparable to or less than those in
15 For the purposes of this proposed rule, fuel oil
means oils 1–6, including distillate, residual,
kerosene, diesel, and other petroleum based oils. It
does not include gasoline or unrefined crude oil.
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traditional fuels. The rule noted that
such borate-treated wood would need to
be burned as a fuel for energy recovery
within the control of the generator.
Finally, the rule indicated that some
borate-treated wood is subsequently
treated with creosote, to provide an
insoluble barrier to prevent the borate
compounds from leaching out of the
wood. The Agency did not receive data
on the contaminant levels of the
resulting material, but data presented on
creosote treated lumber when
combusted in units designed to burn
biomass indicated that this NHSM
would likely no longer meet the
legitimacy criteria and would be
considered a solid waste when burned
as a fuel.
The rule did not have information
generally about the transfer of boratetreated wood to other companies to
make a broad determination about its
use as a fuel outside the control of the
generator. Thus, under the March 2011
rule, borate-treated wood would need to
be burned as a fuel for energy recovery
within the control of the generator (76
FR 15484).
With regard to wood treated with
copper naphthenate, no additional
contaminant data was provided for the
March 2011 rule that would reverse the
position in the January 2010 proposed
rule, which considered wood treated
with copper naphthenate a solid waste
because of concerns of elevated levels of
contaminants (76 FR 15484). The rule
acknowledged, as in the proposed rule,
that the Agency did not have sufficient
information on the contaminant levels
in wood treated with copper
naphthenate. Thus, if a person could
demonstrate that copper naphthenate
treated-wood is burned in a combustion
unit as a fuel for energy recovery within
the control of the generator and meets
the legitimacy criteria or, if discarded,
can demonstrate that they have
sufficiently processed the material, that
person can handle its copper
naphthenate treated-wood as a nonwaste fuel.
2. February 2013 NHSM Final Rule
In the February 2013 NHSM final
rule, EPA noted that the American
Forest and Paper Association (AF&PA)
and the American Wood Council
submitted a letter with supporting
information on December 6, 2012,
seeking a categorical listing for CTRTs
combusted in any unit.16 The letter
included information regarding the
amounts of railroad ties combusted each
16 American Forest & Paper Association,
American Wood Council—Letter to EPA
Administrator, December 6, 2012.
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75787
year and the value of the ties as fuel.
The letter also discussed how CTRTs
satisfy the legitimacy criteria, including
its high Btu value.
While this information was useful, it
was not sufficient for the EPA to
propose that CTRTs be listed
categorically as a non-waste fuel at that
time. Therefore, to further inform the
Agency as to whether to list CTRTs
categorically as a non-waste fuel, EPA
requested that additional information be
provided, and indicated that if this
additional information supported and
supplemented the representations made
in the December 2012 letter, EPA would
expect to propose a categorical listing
for CTRTs. The requested information
included:
• A list of industry sectors, in
addition to forest product mills, that
burn railroad ties for energy recovery.
• The types of boilers (e.g., kilns,
stoker boilers, circulating fluidized bed,
etc.) that burn railroad ties for energy
recovery.
• The traditional fuels and relative
amounts (e.g., startup, 30 percent, 100
percent) of these traditional fuels that
could otherwise generally be burned in
these types of units. The extent to which
non-industrial boilers (e.g., commercial
or residential boilers) burn CTRTs for
energy recover.
• Laboratory analyses for
contaminants known or reasonably
suspected to be present in creosotetreated railroad ties, and contaminants
known to be significant components of
creosote, specifically polycyclic
aromatic hydrocarbons (i.e., PAH–16),
dibenzofuran, cresols,
hexachlorobenzene, 2,4-dinitrotoluene,
biphenyl, quinoline, and dioxins.17 See
81 FR 6723 for detailed responses to
those questions.
3. February 2016 NHSM Final Rule
As discussed in section II.B of this
preamble, EPA stated in the February
2016 final rule that it had reviewed the
information submitted from
stakeholders regarding CTRTs and
determined that the information
received supported a categorical
determination for those materials under
certain conditions (see 40 CFR
17 The Agency requested these analyses based on
the limited information previously available
concerning the chemical makeup of CTRTs. That
limited information included one well-studied
sample from 1990 (showing the presence of both
PAHs and dibenzofuran), past TCLP results (which
showing the presence of cresols, hexachlorobenzene
and 2,4-dinitrotoluene), Material Safety Data Sheets
for coal tar creosote (which showing the potential
presence of biphenyl and quinoline), and the
absence of dioxin analyses prior to combustion
despite extensive dioxin analyses of postcombustion emissions.
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241.4(a)(7)). That rule also indicated
that, based on an August 21, 2015 letter
to Barnes Johnson, TWC requested that
the Agency move forward on a subset of
materials that were identified in a
previous April 2013 petition. EPA stated
in the February 2016 rule, the Agency
had reviewed the TWC information on
the three treated railroad ties, creosote
borate, copper naphthenate, submitted
on September 11, 2015 and had
requested additional contaminant data.
Based on information provided to the
Agency at the time, we believed these
three treated railroad ties were
candidates for categorical non-waste
listings and expected to begin
development of a proposed rule under
40 CFR 241.4(a) regarding those listings
in the near future.
C. Scope of the Proposed Categorical
Non-Waste Listing for OTRTs
As discussed previously in section
II.B of this preamble, TWC submitted
letters and supporting documents to
EPA seeking a categorical listing for
OTRTs. The contaminants found in
OTRTs are not materially different from
the traditional fuels (fuel oil and/or
biomass) that these facilities are
designed to burn as fuel. Therefore, the
Agency is proposing to list, as
categorical non-wastes, processed
OTRTs when used as fuels. The
rationale for this proposal is discussed
in detail in the following sections.
D. Rationale for Proposed Listing
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1. Discard
When deciding whether an NHSM
should be listed as a categorical nonwaste fuel in accordance with 40 CFR
241.4(b)(5), EPA first evaluates whether
or not the NHSM has been discarded,
and if not discarded, whether or not the
material is legitimately used as a
product fuel in a combustion unit. If the
material has been discarded, EPA
evaluates the NHSM as to whether it has
been sufficiently processed into a
material that is legitimately used as a
product fuel.
Data submitted by petitioners
regarding OTRTs removed from service
and processed was analogous to that for
CTRTs. Specifically, OTRTs removed
from service are sometimes temporarily
stored in the railroad right-of-way or at
another location selected by the
reclamation company. This means that
not all OTRTs originate from crossties
removed from service in the same year;
some OTRTs are processed from
crossties removed from service in prior
years and stored by railroads or
removal/reclamation companies until a
contract for reclamation is in place.
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EPA is reiterating its statement from
the February 8, 2016 final rule regarding
cases where a railroad or reclamation
company waits for more than a year to
realize the value of OTRTs as a fuel. The
Agency again concludes that OTRTs are
removed from service and stored in a
railroad right-of-way or location for long
periods of time—that is, a year or
longer, without a determination
regarding their final end use (e.g.,
landscaping, as a fuel or landfilled) thus
indicating that the material has been
discarded and is a solid waste (see also
the general discussion of discard at 76
FR 15463 in the March 2011 rule).
Regarding any assertion that OTRTs are
a valuable commodity in a robust
market, the Agency would like to
remind persons that NHSMs may have
value in the marketplace and still be
considered solid wastes.
2. Processing
Since the OTRTs removed from
service are considered discarded
because they can be stored for long
periods of time without a final
determination regarding their final end
use, in order for them to be considered
a non-waste fuel, they must be
processed, thus transforming the OTRTs
into a product fuel that meets the
legitimacy criteria.18 The Agency
concludes that the processing of OTRTs
described previously in section III.A.1
of this preamble meets the definition of
processing in 40 CFR 241.2. As
discussed in that section, processing
includes operations that transform
discarded NHSM into a non-waste fuel
or non-waste ingredient, including
operations necessary to: remove or
destroy contaminants; significantly
improve the fuel characteristics (e.g.,
sizing or drying of the material, in
combination with other operations);
chemically improve the as-fired energy
content; or improve the ingredient
characteristics. Minimal operations that
result only in modifying the size of the
material by shredding do not constitute
processing for the purposes of the
definition. The Agency concludes that
OTRTs meet the definition of processing
in 40 CFR 241.3 because contaminant
metals are removed in several steps and
the fuel characteristics are significantly
improved; specifically:
• Contaminants (e.g., spikes, plates,
transmission wire and insulator bulbs)
18 Persons
who concluded that their OTRTs are
not discarded and thus are not subject to this
categorical determination may submit an
application to the EPA Regional Administrator that
the material has not been discarded when
transferred to a third party and is indistinguishable
from a product fuel (76 FR 15551).
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are removed during initial inspection by
the user organization.
• Removal of contaminant metals
occurs again at the reclamation facility
using magnets; such removal may occur
in multiple stages.
• The fuel characteristics of the
material are improved when the
crossties are ground or shredded to a
specified size (typically 1–2 inches)
depending on the particular needs of the
end-use combustor. The grinding may
occur in one or more phases.
• Once the contaminant metals are
removed and the OTRTs are ground,
there may be additional screening to
bring the material to a specified size.
3. Legitimacy Criteria
EPA can list a discarded NHSM
categorically as a non-waste fuel if it has
been ‘‘sufficiently processed,’’ and
meets the legitimacy criteria. The three
legitimacy criteria to be evaluated are:
(1) The NHSM must be managed as a
valuable commodity, (2) the NHSM
must have a meaningful heating value
and be used as a fuel in a combustion
unit to recover energy, and (3) the
NHSM must have contaminants or
groups of contaminants at levels
comparable to or less than those in the
traditional fuel the unit is designed to
burn.19
i. Managed as a Valuable Commodity
Data submitted 20 indicates that OTRT
processing and subsequent management
is analogous to the processing of CTRTs
outlined in the February 8, 2016 final
categorical rule. The processing of
OTRTs is correlated to the particular
needs of the end-use combustor.
The process begins when the railroad
or utility company removes the old
OTRTs from service. An initial
inspection is conducted where noncombustible materials are sorted out.
OTRTs are stored in staging areas until
shippable quantities are collected.
Shippable quantities are transported via
truck or rail to a reprocessing center.
At the reprocessing center, pieces are
again inspected, sorted, and noncombustible 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 enduse combustor for energy recovery.
19 We note that even if the NHSM does not meet
one or more of the legitimacy criteria, the Agency
could still propose to list an NHSM categorically by
balancing the legitimacy criteria with other relevant
factors (see 40 CFR 241.4(b)(2).
20 See section III.D.4. for a description of EPA’s
review of all data submitted regarding meeting
legitimacy criteria.
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Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Proposed Rules
OTRTs are delivered to the end-use
combustors via railcar and/or truck
similar to delivery of traditional
biomass fuels.
After receipt, OTRTs are stockpiled
similar to analogous biomass fuels (e.g.,
in fuel silos) to maximize dryness and
minimize dust. While awaiting
combustion at the end-user, which
usually occurs within one day to a week
of arrival, the OTRTs are also
transferred and/or handled from storage
in a manner consistent with the transfer
and handling of biomass fuels.
Procedures include screening by the
end-use combustor, combining with
other biomass fuels, and transferring to
the combustor via conveyor belt or
front-end loader.
Since the storage of the processed
material clearly does not exceed
reasonable time frames and the
processed ties are handled/treated
similar to analogous biomass fuels by
end-use combustors, OTRTs meet the
criterion for being managed as a
valuable commodity.
ii. Meaningful Heating Value and Used
as a Fuel To Recover Energy
EPA received the following
information for the heating values of
processed OTRTs: 6,867 Btu/lb for
creosote-borate; 7,333 Btu/lb for copper
naphthenate; 5,967 Btu/lb for copper
naphthenate-borate; 5,232 Btu/lb for
mixed railroad ties containing 56%
creosote, 41% creosote-borate, 1%
copper naphthenate, 2% copper
naphthenate-borate; and 7,967 Btu/lb for
mixed ties containing 25% creosote,
25% creosote borate, 25% copper
naphthenate and 25% copper
naphthenate-borate.21 22 In the March
2011 NHSM final rule, the Agency
indicated that NHSMs with an energy
value greater than 5,000 Btu/lb, as fired,
are considered to have a meaningful
heating value.23 Thus, OTRTs meet the
criterion for meaningful heating value
and used as a fuel to recover energy.
iii. Contaminants Comparable to or
Lower Than Traditional Fuels
For each type of OTRT, EPA has
compared the September 2015 data
submitted on contaminant levels by
petitioners to contaminant data for two
traditional fuels: Biomass, including
untreated clean wood, and fuel oil
(petitioners did not provide data or
request that contaminant comparisons
be made to coal). The petitioner’s data
included samples taken from 15
different used creosote-borate ties, 15
different copper naphthenate-borate
ties, 15 creosote ties, and 15 copper
naphthenate ties. Each type of tie
sample was divided into three groups of
five tie samples each. This resulted in
12 total groups corresponding to the
four different types ties. Each group was
then isolated, mixed together, processed
into a fuel-type consistency, and
shipped to the laboratory for analysis.
As noted previously, use of these
types of ties are relatively new
compared to creosote, so few have
75789
transitioned to fuel use at this time. To
simulate that transition over time, three
samples of unevenly-blended tie
material (56% creosote, 41% creosoteborate, 1% copper naphthenate, 2%
copper naphthenate-borate) and three
samples of equally blended tie material
(25% creosote, 25% creosote-borate,
25% copper naphthenate, 25% copper
naphthenate-borate) were analyzed. The
lab analyzed three samples of each of
tie-derived boiler fuel treated with
creosote, creosote-borate, copper
naphthenate and copper naphthenateborate. In addition, the lab analyzed
three samples of equally-blended tie
material, three samples of unevenlyblended tie material, and three samples
of untreated wood for a total of 21
samples.
In addition to September 2015 data,
copper naphthenate-borate, and copper
naphthenate test data had also been
submitted in conjunction with TWC’s
earlier December 4, 2013 petition and
are included in the following tables. As
noted in section II.B of this preamble,
the data did not have details on the
number of samples collected. In
addition, sulfur was measured using
leachable anion techniques that do not
provide results of the total contaminant
content, and heat content was not
measured. The results of the analysis of
the 2015 and 2013 data are shown in the
following tables.24
Copper Naphthenate
COPPER NAPHTHENATE
Copper naphthenate
railroad ties
contaminant levels a f
Contaminant
Biomass/
Untreated wood b
Fuel Oil b
Metal Elements (ppm—dry basis)
Antimony .......................................................................................................
Arsenic ..........................................................................................................
Beryllium ........................................................................................................
Cadmium .......................................................................................................
Chromium ......................................................................................................
Cobalt ............................................................................................................
Lead ..............................................................................................................
Manganese ....................................................................................................
Mercury .........................................................................................................
Nickel .............................................................................................................
Selenium .......................................................................................................
<1.4
0.53–0.93
<0.60–0.05
<0.28–0.20
0.22–0.50
<6.0–0.81
<0.36–3.5
7.1–166
<0.20
0.79–1.1
0.41–0.84
ND–26
ND–298
ND–10
ND–17
ND–340
ND–213
ND–340
ND–15,800
ND–1.1
ND–540
ND–9.0
ND–15.7
ND–13
ND–19
ND–1.4
ND–37
ND–8.5
ND–56.8
ND–3,200
ND–0.2
ND–270
ND–4
ND–5,400
ND–1,260
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
Non-Metal Elements (ppm–dry basis)
Chlorine .........................................................................................................
21 Letter from Jeff Miller to Barnes Johnson,
September 11, 2015; see docket for this proposed
rule.
22 These values reflect averages from 2013 and
2015 data. Relevant lab data on Btu/lb for each
types of processed OTRT can be viewed in the
September and October 2015 letters from Jeff Miller
to Barnes Johnson included in the docket.
23 See 76 FR 15541.
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<100
24 Note for contaminant analyses, when making
contaminant comparisons for purposes of meeting
the legitimacy criterion, it would be appropriate in
this circumstance to find that grouping of
contaminants would not result in discard. For
example, under the grouping concept, individual
SVOC levels may be elevated above that of the
traditional fuel, but the contaminant legitimacy
criterion will be met as long as total SVOCs is
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Fmt 4702
Sfmt 4702
comparable to or less than that of the traditional
fuel. Such an approach is standard practice
employed by the Agency in developing regulations
and is consistent with monitoring standards under
CAA sections 112 and 129. See 78 FR 9146,
February 7, 2013, for further findings that relate to
the issue of grouping contaminants for purposes of
determining discard.
E:\FR\FM\01NOP1.SGM
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Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Proposed Rules
COPPER NAPHTHENATE—Continued
Copper naphthenate
railroad ties
contaminant levels a f
Contaminant
Fluorine .........................................................................................................
Nitrogen .........................................................................................................
Sulfur .............................................................................................................
<100
<500
190–240
Biomass/
Untreated wood b
Fuel Oil b
ND–300
200–39,500
ND–8,700
ND–14
42–8,950
ND–57,000
3.0–95
<1.3
<1.3–6.3
<1.3
<1.3
<1.3
<1.3
<1.3
<1.3
<1.3
<1.3–6.5
4.5–53
<1.3
8.2–80
8.2–77
<1.3–15
49–298
<30 g
—e
ND–50
ND–4
0.4–87
ND–62
ND–28
ND–42
ND–9
ND–16
ND–53
ND–3
0.6–160
ND–40
ND–12
ND–38
0.9–190
0.2–160
5–921
ND–1
—
111
4.1
96
41–1,900
0.60–960
11–540
11.4
0.6
2.2–2,700
4.0
31.6–240
3,600
2.3
34.3–4,000
0–116,000
23–178
3,900–54,700
—
1,000–1,200
77–328
5–922
4,900–54,700
Semivolatile Hazardous Pollutants (ppm–dry basis)
Acenaphthene ...............................................................................................
Acenaphthylene .............................................................................................
Anthracene ....................................................................................................
Benzo[a]anthracene ......................................................................................
Benzo[a]pyrene .............................................................................................
Benzo[b]fluoranthene ....................................................................................
Benzo[ghi]perylene ........................................................................................
Benzo[k]fluoranthene ....................................................................................
Chrysene .......................................................................................................
Dibenz[a,h]anthracene ..................................................................................
Fluoranthene .................................................................................................
Fluorene ........................................................................................................
Indeno[1,2,3-cd]pyrene .................................................................................
Naphthalene ..................................................................................................
Phenanthrene ................................................................................................
Pyrene ...........................................................................................................
16–PAH .........................................................................................................
Pentachlorophenol ........................................................................................
Biphenyl .........................................................................................................
Total SVOC c ..........................................................................................
Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm—dry basis)
Benzene ........................................................................................................
Phenol ...........................................................................................................
Styrene ..........................................................................................................
Toluene .........................................................................................................
Xylenes ..........................................................................................................
Cumene .........................................................................................................
Ethyl benzene ...............................................................................................
Formaldehyde ...............................................................................................
Hexane ..........................................................................................................
Total VOC d ............................................................................................
<0.69
—
—e
<0.69
<0.69
<0.69
—e
<0.69
—e
—e
—
ND–75
—
—
—
—
—
—
1.6–27
—
ND–7,700
ND–320
ND–380
ND–3,100
6,000–8,000
22–1,270
—
50–10,000
<3.4
1.6–27
6,072–19,810
a Data
provided by Treated Wood Council on April 3, 2013, September 11, 2015 and October 19, 2015.
Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at https://www.epa.gov/epawaste/
nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air
Quality Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
c Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum
and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample.
d Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC group, so is not reflected here.
e Cells with the ‘‘—’’ indicate analytes not tested for in treated wood, but these are not expected to be present in treated wood formulation
being analyzed based on preservative chemistry and results from previous CTRT testing (i.e., not present in CTRT ties).
f Non-detects are indicated by ‘‘<’’ preceding the method reporting limit, not the method detection limit. Therefore, there are many cases where
the non-detect value may be greater than another test’s detected value due to analysis-specific RLs being different between individual tests (i.e.,
differences in tested amount or analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method reporting limit (MRL), which is always greater than MDL, was used by the lab.
g Not expected in the treated wood formulation being tested based on preservative chemistry.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
b Contaminant
As indicated, railroad ties treated
with copper naphthenate have
contaminants that are comparable to or
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less than those in biomass or fuel oil.
Given that these railroad ties are a type
of treated wood biomass, such ties can
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be combusted in units designed to burn
biomass or biomass and fuel oil.
Copper Naphthenate-Borate
E:\FR\FM\01NOP1.SGM
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75791
Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Proposed Rules
COPPER NAPHTHENATE-BORATE
Copper naphthenate-borate railroad ties contaminant levels a f
Contaminant
Biomass/
Untreated wood b
Fuel oil b
Metal Elements (ppm—dry basis)
Antimony ......................................................................................................
Arsenic .........................................................................................................
Beryllium ......................................................................................................
Cadmium ......................................................................................................
Chromium .....................................................................................................
Cobalt ...........................................................................................................
Lead .............................................................................................................
Manganese ..................................................................................................
Mercury ........................................................................................................
Nickel ...........................................................................................................
Selenium ......................................................................................................
<1.4
0.52–0.72
<0.67
<0.31–0.078
0.11–0.78
<7.5–0.74
<0.38–4.0
14–170
<0.15
0.46–2.0
<0.64–0.52
ND–26
ND–298
ND–10
ND–17
ND–340
ND–213
ND–340
ND–15,800
ND–1.1
ND–540
ND–9.0
ND–15.7
ND–13
ND–19
ND–1.4
ND–37
ND–8.5
ND–56.8
ND–3,200
ND–0.2
ND–270
ND–4
ND–5,400
ND–300
200–39,500
ND–8,700
ND–1,260
ND–14
42–8,950
ND–57,000
4.8–17
<1.2–0.9
<1.2–7.2
<1.2–3.7
<1.2–1.4
<1.2–3.9
<1.2
<1.2–20
<1.2–6.6
<1.2
<1.2–20
2.2–16
<1.2
5.2–82
3.6–43
<1.3–19
39–145
<28 g
—e
ND–50
ND–4
0.4–87
ND–62
ND–28
ND–42
ND–9
ND–16
ND–53
ND–3
0.6–160
ND–40
ND–12
ND–38
0.9–190
0.2–160
5–921
ND–1
—
111
4.1
96
41–1,900
0.60–960
11–540
11.4
0.6
2.2–2,700
4.0
31.6–240
3,600
2.3
34.3–4,000
0–116,000
23–178
3,900–54,700
—
1,000–1,200
66–173
5–922
4,900–54,700
Non-Metal Elements (ppm—dry basis)
Chlorine ........................................................................................................
Fluorine ........................................................................................................
Nitrogen ........................................................................................................
Sulfur ............................................................................................................
<100
<100
<500
140–170
Semivolatile Hazardous Pollutants (ppm—dry basis)
Acenaphthene ..............................................................................................
Acenaphthylene ...........................................................................................
Anthracene ...................................................................................................
Benzo[a]anthracene .....................................................................................
Benzo[a]pyrene ............................................................................................
Benzo[b]fluoranthene ...................................................................................
Benzo[ghi]perylene ......................................................................................
Benzo[k]fluoranthene ...................................................................................
Chrysene ......................................................................................................
Dibenz[a,h]anthracene .................................................................................
Fluoranthene ................................................................................................
Fluorene .......................................................................................................
Indeno[1,2,3-cd]pyrene ................................................................................
Naphthalene .................................................................................................
Phenanthrene ...............................................................................................
Pyrene ..........................................................................................................
16–PAH ........................................................................................................
Pentachlorophenol .......................................................................................
Biphenyl .......................................................................................................
Total SVOC c .........................................................................................
Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm—dry basis)
Benzene .......................................................................................................
Phenol ..........................................................................................................
Styrene .........................................................................................................
Toluene ........................................................................................................
Xylenes ........................................................................................................
Cumene ........................................................................................................
Ethyl benzene ..............................................................................................
Formaldehyde ..............................................................................................
Hexane .........................................................................................................
Total VOC d ...........................................................................................
<0.77
—
—e
<0.77
<0.77
<0.77
—e
<0.77
—e
—e
—
—
—
—
—
—
—
—
1.6–27
—
ND–7,700
ND–320
ND–380
ND–3,100
6,000–8,000
22–1,270
—
50–10,000
<3.8
1.6–27
6,072–19,810
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
a Data
ND–75
provided by Treated Wood Council on April 3, 2013, September 11, 2015 and October 19, 2015.
Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at https://www.epa.gov/epawaste/
nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air
Quality Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
c Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum
and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample.
d Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC group, so is not reflected here.
e Cells with the ‘‘—’’ indicate analytes not tested for in treated wood, but these are not expected to be present in treated wood formulation
being analyzed based on preservative chemistry and results from previous CTRT testing (i.e., not present in CTRT ties).
f Non-detects are indicated by ‘‘<’’ preceding the method reporting limit, not the method detection limit. Therefore, there are many cases where
the non-detect value may be greater than another test’s detected value due to analysis-specific RLs being different between individual tests (i.e.,
differences in tested amount or analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method reporting limit (MRL), which is always greater than MDL, was used by the lab.
b Contaminant
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g Not
Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Proposed Rules
expected in the treated wood formulation being tested based on preservative chemistry.
As indicated, railroad ties treated
with copper naphthenate-borate have
contaminants that are comparable to or
less than those in biomass or fuel oil.
Given that these railroad ties are a type
of treated wood biomass, such ties can
be combusted in units designed to burn
biomass or biomass and fuel oil.
Creosote-Borate
CREOSOTE-BORATE
Creosote-borate
railroad ties contaminant levels a f
Contaminant
Biomass/untreated
wood b
Fuel oil b
Metal Elements (ppm—dry basis)
Antimony ...............................................................................................................
Arsenic ..................................................................................................................
Beryllium ...............................................................................................................
Cadmium ...............................................................................................................
Chromium .............................................................................................................
Cobalt ....................................................................................................................
Lead ......................................................................................................................
Manganese ...........................................................................................................
Mercury .................................................................................................................
Nickel ....................................................................................................................
Selenium ...............................................................................................................
<1.3
<1.3–0.80
<0.60–0.032
0.059–0.25
0.10–1.1
<6.0–0.22
<0.37–1.8
22–140
<0.15–0.066
0.71–1.8
0.59–1.4
ND–26
ND–298
ND–10
ND–17
ND–340
ND–213
ND–340
ND–15,800
ND–1.1
ND–540
ND–9.0
ND–15.7
ND–13
ND–19
ND–1.4
ND–37
ND–8.5
ND–56.8
ND–3,200
ND–0.2
ND–270
ND–4
ND–5,400
ND–300
200–39,500
ND–8,700
ND–1,260
ND–14
42–8,950
ND–57,000
Non-Metal Elements (ppm—dry basis)
Chlorine .................................................................................................................
Fluorine .................................................................................................................
Nitrogen ................................................................................................................
Sulfur .....................................................................................................................
<100
<100
<500
170–180
Semivolatile Hazardous Pollutants (ppm—dry basis)
Acenaphthene .......................................................................................................
Acenaphthylene ....................................................................................................
Anthracene ............................................................................................................
Benzo[a]anthracene ..............................................................................................
Benzo[a]pyrene .....................................................................................................
Benzo[b]fluoranthene ............................................................................................
Benzo[ghi]perylene ...............................................................................................
Benzo[k]fluoranthene ............................................................................................
Chrysene ...............................................................................................................
Dibenz[a,h]anthracene ..........................................................................................
Fluoranthene .........................................................................................................
Fluorene ................................................................................................................
Indeno[1,2,3-cd]pyrene .........................................................................................
Naphthalene ..........................................................................................................
Phenanthrene .......................................................................................................
Pyrene ...................................................................................................................
16–PAH .................................................................................................................
Pentachlorophenol ................................................................................................
Biphenyl ................................................................................................................
600–2,200
17–96
350–2,000
200–1,500
62–500
110–960
13–170
40–320
210–1,300
<21–58
1,100–8,400
500–2,200
14–170
660–2,900
2,000–12,000
780–5,200
6,600–38,000
<790 g
137–330 h
ND–50
ND–4
0.4–87
ND–62
ND–28
ND–42
ND–9
ND–16
ND–53
ND–3
0.6–160
ND–40
ND–12
ND–38
0.9–190
0.2–160
5–921
ND–1
—
111
4.1
96
41–1,900
0.60–960
11–540
11.4
0.6
2.2–2,700
4.0
31.6–240
3,600
2.3
34.3–4,000
0–116,000
23–178
3,900–54,700
—
1,000–1,200
Total SVOC c .................................................................................................
7,200–39,000
5–922
4,900–54,700
Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm—dry basis)
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
Benzene ................................................................................................................
—
ND–75
Phenol ...................................................................................................................
Styrene ..................................................................................................................
Toluene .................................................................................................................
Xylenes .................................................................................................................
Cumene ................................................................................................................
Ethyl benzene .......................................................................................................
Formaldehyde .......................................................................................................
Hexane ..................................................................................................................
<3.9
—
—e
<3.9
<3.9
<3.9
—e
<3.9
—e
—e
—
—
—
—
—
—
1.6–27
—
ND–7,700
ND–320
ND–380
ND–3,100
6,000–8,000
22–1,270
—
50–10,000
Total VOC d ....................................................................................................
<20
1.6–27
6,072–19,810
a Data
provided by Treated Wood Council on September 11, 2015 and October 19, 2015.
Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at https://www.epa.gov/epawaste/
nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air
Quality Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
b Contaminant
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Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Proposed Rules
c Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum
and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample.
d Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC group, so is not reflected here.
e Cells with the ‘‘—’’ indicate analytes not tested for in treated wood, but these are not expected to be present in treated wood formulation
being analyzed based on preservative chemistry and results from previous CTRT testing (i.e., not present in CTRT ties).
f Non-detects are indicated by ‘‘<’’ preceding the method reporting limit, not the method detection limit. Therefore, there are many cases where
the non-detect value may be greater than another test’s detected value due to analysis-specific RLs being different between individual tests (i.e.,
differences in tested amount or analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method reporting limit (MRL), which is always greater than MDL, was used by the lab.
g Not expected in the treated wood formulation being tested based on preservative chemistry.
h Not tested for, but presumptive worst-case value is presented for treated wood type based on data from previous CTRT testing.
Semi-volatile organic compound
(SVOC) levels in creosote-borate
processed railroad ties are not
comparable to biomass. Given that
creosote-borate railroad ties are a type of
treated wood biomass, and any unit
burning these ties typically burns
untreated wood, the EPA considered
two scenarios.
In the first scenario, where a
combustion unit is designed to only
burn biomass, EPA compared
contaminant levels in creosote-borate to
contaminant levels in biomass. In this
scenario, the total SVOC levels can
reach 39,000 ppm, driven by high levels
of polycyclic aromatic hydrocarbons
(PAHs).25 These compounds are very
low levels in clean wood and biomass,
and the contaminants are therefore not
comparable in this instance. In fact, they
are present at orders of magnitude
higher than found in clean wood and
biomass.
In the second scenario, a combustion
unit is designed to burn biomass and
fuel oil. As previously mentioned,
SVOCs are present in CTRTs (up to
39,000 ppm) at levels well within the
range observed in fuel oil (up to 54,700
ppm). Therefore, creosote-borate
railroad ties have comparable
contaminant levels to other fuels
combusted in units designed to burn
both biomass and fuel oil, and as such,
meet this criterion if used in facilities
that are designed to burn both biomass
and fuel oil.26
As stated in the preamble to the
February 7, 2013, NHSM final rule,
combustors may burn NHSMs as a
product fuel if they compare
appropriately to any traditional fuel the
unit can or does burn (78 FR 9149).
Combustion units are often designed to
burn multiple traditional fuels, and
some units can and do rely on different
fuel types at different times based on
availability of fuel supplies, market
conditions, power demands, and other
factors. Under these circumstances, it is
arbitrary to restrict the combustion for
energy recovery of NHSMs based on
contaminant comparison to only one
traditional fuel if the unit could burn a
second traditional fuel chosen due to
such changes in fuel supplies, market
conditions, power demands or other
factors. If a unit can burn both a solid
and liquid fuel, then comparison to
either fuel would be appropriate.
In order to make comparisons to
multiple traditional fuels, units must be
designed to burn those fuels. If a facility
compares contaminants in an NHSM to
a traditional fuel a unit is not designed
to burn, and that material is highly
contaminated, a facility would then be
able to burn excessive levels of waste
components in the NHSM as a means of
discard. Such NHSMs would be
considered wastes regardless of any fuel
value (78 FR 9149).27 Accordingly, the
ability to burn a fuel in a combustion
unit does have a basic set of
requirements, the most basic of which is
the ability to feed the material into the
combustion unit. The unit must also be
able to ensure the material is wellmixed and maintain temperatures
within unit specifications.
Mixed Treatments-Creosote, Borate,
Copper Naphthenate
MIX 1–1–1–1
Mixed railroad ties
(25%C–25%CB–
25%CuN–25%CuNB)
contaminant levels a f
Contaminant
Biomass/untreated
wood b
Fuel oil b
Metal Elements (ppm—dry basis)
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
Antimony ...........................................................................................................
Arsenic ..............................................................................................................
Beryllium ...........................................................................................................
Cadmium ..........................................................................................................
Chromium .........................................................................................................
Cobalt ...............................................................................................................
Lead ..................................................................................................................
Manganese .......................................................................................................
Mercury .............................................................................................................
Nickel ................................................................................................................
25 We note that for several SVOCs—cresols,
hexachlorobenzene, and 2,4-dinitrotoluene, which
were expected to be in creosote, and for which
information was specifically requested in the
February 7, 2013 NHSM final rule (78 FR 9111), the
data demonstrate that they were not detectable, or
were present at levels so low to be considered
comparable.
26 As discussed previously, the March 21, 2011
NHSM final rule (76 FR 15456), noting the presence
of hexachlorobenzene and dinitrotoluene, suggested
that creosote-treated lumber include contaminants
at levels that are not comparable to those found in
wood or coal, the fuel that creosote-treated wood
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<1.4
<1.5–0.81
<0.70
0.15–0.38
0.15–0.17
<7.0–0.07
0.50–0.81
110–190
<0.15–0.06
0.75–1.4
would replace, and would thus be considered solid
wastes. The February 2016 final rule differs in
several respects from the conclusions in the March
2011 rule. The February 2016 final rule concludes
that CTRTs are a categorical non-waste when
combusted in units designed to burn both fuel oil
and biomass. The March 2011 rule, using 1990 data
on railroad cross ties, was based on contaminant
comparisons to coal and biomass and not fuel oil.
As discussed above, when compared to fuel oil,
total SVOC contaminant concentrations (which
would include dinitrotoluene and
hexachlorobenzene) in CTRTs would be less that
those found in fuel oil, and in fact, the 2012 data
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ND–26
ND–298
ND–10
ND–17
ND–340
ND–213
ND–340
ND–15,800
ND–1.1
ND–540
ND–15.7
ND–13
ND–19
ND–1.4
ND–37
ND–8.5
ND–56.8
ND–3,200
ND–0.2
ND–270
referenced in this final rule showed non-detects for
those two contaminants.
27 78 FR 9149 states ‘‘If a NHSM does not contain
contaminants at levels comparable to or lower than
those found in any [emphasis added] traditional
fuel that a combustion unit could burn, then it
follows that discard could be occurring if the
NHSM were combusted. Whether contaminants in
these cases would be destroyed or discarded
through releases to the air, they could not be
considered a normal part of a legitimate fuel and
the NHSM would be considered a solid waste when
used as a fuel in that combustion unit.’’
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MIX 1–1–1–1—Continued
Mixed railroad ties
(25%C–25%CB–
25%CuN–25%CuNB)
contaminant levels a f
Contaminant
Selenium ...........................................................................................................
<0.66–0.50
Biomass/untreated
wood b
Fuel oil b
ND–9.0
ND–4
ND–5,400
ND–300
200–39,500
ND–8,700
ND–1,260
ND–14
42–8,950
ND–57,000
111
4.1
96
41–1,900
0.60–960
11–540
11.4
0.6
2.2–2,700
4.0
31.6–240
3,600
2.3
34.3–4,000
0–116,000
23–178
3,900–54,700
Non-Metal Elements (ppm—dry basis)
Chlorine ............................................................................................................
Fluorine .............................................................................................................
Nitrogen ............................................................................................................
Sulfur ................................................................................................................
<100
<100
<500
140–210
Semivolatile Hazardous Pollutants (ppm—dry basis)
Acenaphthene ...................................................................................................
Acenaphthylene ................................................................................................
Anthracene .......................................................................................................
Benzo[a]anthracene ..........................................................................................
Benzo[a]pyrene .................................................................................................
Benzo[b]fluoranthene ........................................................................................
Benzo[ghi]perylene ...........................................................................................
Benzo[k]fluoranthene ........................................................................................
Chrysene ..........................................................................................................
Dibenz[a,h]anthracene ......................................................................................
Fluoranthene .....................................................................................................
Fluorene ............................................................................................................
Indeno[1,2,3-cd]pyrene .....................................................................................
Naphthalene .....................................................................................................
Phenanthrene ...................................................................................................
Pyrene ..............................................................................................................
16–PAH ............................................................................................................
Pentachlorophenol ............................................................................................
Biphenyl ............................................................................................................
500–1,100
12–25
290–1,100
140–350
47–120
83–210
9.4–23
30–64
160–360
<7.2–4.7
800–2,100
350–1,000
10–28
320–580
1,300–3,800
520–1,400
4,500–12,000
<330 g
137–330 h
ND–50
ND–4
0.4 –87
ND–62
ND–28
ND–42
ND–9
ND–16
ND–53
ND–3
0.6–160
ND–40
ND–12
ND–38
0.9–190
0.2–160
5–921
ND–1
Total SVOC c .............................................................................................
4,800–13,000
5–922
1,000–1,200
4,900–54,700
Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm—dry basis)
Benzene ............................................................................................................
Phenol ...............................................................................................................
Styrene .............................................................................................................
Toluene .............................................................................................................
Xylenes .............................................................................................................
Cumene ............................................................................................................
Ethyl benzene ...................................................................................................
Formaldehyde ...................................................................................................
Hexane .............................................................................................................
Total VOC d ................................................................................................
<1.1
—
—e
<1.1
<1.1
<1.1
—e
<1.1
—e
—e
<5.3
—
ND–75
—
—
—
—
—
—
1.6–27
—
1.6–27
ND–7,700
ND–320
ND–380
ND–3,100
6,000–8,000
22–1,270
—
50–10,000
6,072–19,810
a Data
provided by Treated Wood Council on September 11, 2015 and October 19, 2015.
Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at https://www.epa.gov/epawaste/
nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air
Quality Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
c Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum
and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample.
d Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC group, so is not reflected here.
e Cells with the ‘‘—’’ indicate analytes not tested for in treated wood, but these are not expected to be present in treated wood formulation
being analyzed based on preservative chemistry and results from previous CTRT testing (i.e., not present in CTRT ties).
f Non-detects are indicated by ‘‘<’’ preceding the method reporting limit, not the method detection limit. Therefore, there are many cases where
the non-detect value may be greater than another test’s detected value due to analysis-specific RLs being different between individual tests (i.e.,
differences in tested amount or analyzer calibration range adjustments). If result is less than the method detection limit (MDL), the method reporting limit (MRL), which is always greater than MDL, was used by the lab.
g Not expected in the treated wood formulation being tested based on preservative chemistry.
h Not tested for, but presumptive worst-case value is presented for treated wood type based on data from previous CTRT testing.
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b Contaminant
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MIX 56–41–1–2
Mixed railroad ties
(56%C–41%CB–
1%CuN–2%CuNB)
contaminant levels a f
Contaminant
Biomass/untreated
wood b
Fuel oil b
Metal Elements (ppm—dry basis)
Antimony ............................................................................................................
Arsenic ...............................................................................................................
Beryllium ............................................................................................................
Cadmium ............................................................................................................
Chromium ...........................................................................................................
Cobalt .................................................................................................................
Lead ...................................................................................................................
Manganese ........................................................................................................
Mercury ..............................................................................................................
Nickel .................................................................................................................
Selenium ............................................................................................................
<1.4
<1.4–0.65
<0.68
0.08–0.09
0.12–0.78
<6.8–0.18
<0.44–0.93
47–77
<0.13–0.03
0.50–0.99
0.56–0.68
ND–26
ND–298
ND–10
ND–17
ND–340
ND–213
ND–340
ND–15,800
ND–1.1
ND–540
ND–9.0
ND–15.7
ND–13
ND–19
ND–1.4
ND–37
ND–8.5
ND–56.8
ND–3,200
ND–0.2
ND–270
ND–4
ND–5,400
ND–300
200–39,500
ND–8,700
ND–1,260
ND–14
42–8,950
ND–57,000
111
4.1
96
41–1,900
0.60–960
11–540
11.4
0.6
2.2–2,700
4.0
31.6–240
3,600
2.3
34.3–4,000
0–116,000
23–178
3,900–54,700
Non-Metal Elements (ppm—dry basis)
Chlorine ..............................................................................................................
Fluorine ..............................................................................................................
Nitrogen ..............................................................................................................
Sulfur ..................................................................................................................
<100
<100
<500
230–280
Semivolatile Hazardous Pollutants (ppm—dry basis)
Acenaphthene ....................................................................................................
Acenaphthylene .................................................................................................
Anthracene .........................................................................................................
Benzo[a]anthracene ...........................................................................................
Benzo[a]pyrene ..................................................................................................
Benzo[b]fluoranthene .........................................................................................
Benzo[ghi]perylene ............................................................................................
Benzo[k]fluoranthene .........................................................................................
Chrysene ............................................................................................................
Dibenz[a,h]anthracene .......................................................................................
Fluoranthene ......................................................................................................
Fluorene .............................................................................................................
Indeno[1,2,3-cd]pyrene ......................................................................................
Naphthalene .......................................................................................................
Phenanthrene .....................................................................................................
Pyrene ................................................................................................................
16–PAH ..............................................................................................................
Pentachlorophenol .............................................................................................
Biphenyl .............................................................................................................
1,500–1,800
31–40
760–1,100
390–490
150–200
230–310
28–56
93–130
390–520
<28
2,000–2,700
1,100–1,300
32–52
890–1,200
3,600–4,500
1,300–1,800
13,000–16,000
<630 g
137–330 h
ND–50
ND–4
0.4–87
ND–62
ND–28
ND–42
ND–9
ND–16
ND–53
ND–3
0.6–160
ND–40
ND–12
ND–38
0.9–190
0.2–160
5–921
ND–1
Total SVOC c ...............................................................................................
13,000–17,000
5–922
1,000–1,200
4,900–54,700
Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm—dry basis)
Phenol ................................................................................................................
Styrene ...............................................................................................................
Toluene ..............................................................................................................
Xylenes ..............................................................................................................
Cumene ..............................................................................................................
Ethyl benzene ....................................................................................................
Formaldehyde ....................................................................................................
Hexane ...............................................................................................................
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
Benzene .............................................................................................................
<2.3
—
—e
<2.3
<2.3
<2.3
—e
<2.3
—e
—e
ND–75
—
—
—
—
—
—
1.6–27
—
ND–7,700
ND–320
ND–380
ND–3,100
6,000–8,000
22–1,270
—
50–10,000
Total VOC d .................................................................................................
<12
1.6–27
6,072–19,810
a Data
provided by Treated Wood Council on September 11, 2015 and October 19, 2015.
Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, available at https://www.epa.gov/epawaste/
nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn from various literature sources and from data submitted to USEPA, Office of Air
Quality Planning and Standards (OAQPS). SVOC values from 2013 IEc data that will be available in the rule docket.
c Total SVOC ranges do not represent a simple sum of the minimum and maximum values for each contaminant. This is because minimum
and maximum concentrations for individual VOCs and SVOCs do not always come from the same sample.
d Naphthalene was the only analyte detected in Oct 2015 VOC testing, but this analyte is included in the SVOC group, so is not reflected here.
e Cells with the ‘‘—’’ indicate analytes not tested for in treated wood, but these are not expected to be present in treated wood formulation
being analyzed based on preservative chemistry and results from previous CTRT testing (i.e., not present in CTRT ties).
b Contaminant
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Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Proposed Rules
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.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
In the mixed treated wood scenarios
above, as previously discussed, SVOCs
are present (up to 17,000 ppm) at levels
well within the range observed in fuel
oil (up to 54,700 ppm). Therefore,
mixed railroad ties with creosote, borate
and copper naphthenate have
comparable contaminant levels to other
fuels combusted in units designed to
burn both biomass and fuel oil, and as
such, meet this criterion if used in
facilities that are designed to burn both
biomass and fuel oil.
4. OTRT Sampling and Analysis Data
History
The data collection supporting the
OTRT non-waste determination has
been based on several rounds of data
submittals by TWC followed by EPA
questions and comments on the data
provided. We have described the
process of forming the OTRT data set,
and all materials provided by TWC are
available in the docket to this
rulemaking.
The TWC submitted data on various
wood preservative types, including
those referred to as OTRTs, in their
April 3, 2013 petition letter requesting
a categorical determination that all
preserved wood types were non-waste
fuels. However, the contaminant
comparison data presented in the
petition were incomplete and not based
on established analytical data. The EPA
response to TWC requested submittal of
analytical data to determine
contaminant concentrations in the
OTRT wood.
In November 2013, TWC responded to
EPA’s request, submitting laboratory
reports on analyses of the various
preservative wood types, including
OTRTs. The EPA reviewed the
laboratory reports and techniques, and
determined that there were limited data
points available (i.e., one per
preservative type) and that the
analytical techniques for several
contaminants (chlorine, nitrogen, sulfur,
and fluorine) were not appropriate to
provide information on the entire
preserved wood sample as combusted,
reflecting only a leachable component.
Furthermore, EPA questioned the
representativeness of the samples being
analyzed and the repeatability of the
analyses.
In August, 2015, TWC performed
additional sampling and analyses to
address these deficiencies in the data. In
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18:29 Oct 31, 2016
Jkt 241001
response to EPA’s concerns on previous
data, and as described previously, TWC
developed a sampling program in which
15 OTRT railroad ties of each
preservative type were collected from
various geographical areas. These 15 ties
were then separated into three 5 tie
groups, then processed into a boiler-fuel
consistency using commercial
processing techniques. A sample of each
5-tie group was then shipped to an
independent laboratory for analysis,
thereby producing 3 data points for each
preservative type. TWC also prepared
two blends: One with equal portions of
creosote, creosote-borate, copper
naphthenate, and copper naphthenateborate; and the second a weighted blend
of these tie types in proportion to
current usage ratios of each preservative
chemistry. These blends samples were
analyzed in triplicate, for a total of 18
samples being analyzed (i.e., three from
each tie sample group). Two laboratories
were used by TWC to perform the
analysis: One laboratory analyzed
metals, mercury, semivolatiles, and heat
of combustion; and the other laboratory
analyzed volatiles, chlorine, fluorine,
and nitrogen. All methods used were
EPA or ASTM methods, and were
appropriate for the materials being
tested. No specific sampling
methodology was employed in taking
the samples from the 5-ties group.
The EPA reviewed the 2015 test data,
which was provided by TWC on
September 11, 2015, and provided TWC
with additional follow-up questions and
clarifications, including the specific
sources of the ties. TWC’s response
noted the sources of ties for each
chemistry and indicated that the ties
generally originated in the southeast,
but there are also ties from
Pennsylvania, South Dakota, and
Kentucky represented within the TWC
data set. The EPA also noted some
exceptions and flags within the
analytical report, such as sample coolers
upon receipt at the lab were outside the
required temperature criterion;
surrogate recoveries for semivolatile
samples (which represent extraction
efficiency within a sample matrix) were
sometimes lower or higher than those
for samples containing creosote-treated
wood; and dilution factors (dilution is
used when the sample is higher in
concentration than can be analyzed) for
creosote-treated wood samples were
high (up to 800). The laboratory noted
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these issues in the report narrative, but
concluded that there were no corrective
actions necessary.
Finally, EPA requested further
information on these issues noted in the
report narrative, as well as supporting
quality assurance documentation from
the laboratories. With respect to
surrogate recoveries and dilutions, the
lab indicated that the high dilutions
were required for the creosotecontaining matrix to avoid saturation of
the detector instrument.28 Also, the
shipping cooler temperature criterion of
4 degrees Celsius, which EPA views as
standard practice, is not wholly
applicable in this case due to the nature
of the samples. Since the ties were used
and stored after being taken out of
service in ambient atmosphere and are
not biologically active, the 4 degree
Celsius receipt condition is not
necessary, but was noted in the report
as part of laboratory standard operating
procedure.
E. Summary and Request for Comment
EPA believes it has sufficient
information to propose to list OTRTs
categorically as non-waste fuels. For
units combusting copper-naphthenateborate and/or copper naphthenate
railroad ties, such materials could be
combusted in units designed to burn
biomass or biomass and fuel oil. For
units combusting railroad ties
containing cresosote, including
creosote-borate or any mixtures of ties
containing cresosote, borate and copper
naphthenate, such materials must be
burned in combustion units that are
designed to burn both biomass and fuel
oil. The Agency would consider units to
meet this requirement if the unit
combusts fuel oil as part of normal
operations and not solely as part of start
up or shut down operations.
Consistent with the approach for
CTRTs outlined in the February 2016
rule, the Agency is also proposing that
units combusting railroad ties treated
28 Samples with concentrations exceeding the
calibration range must be diluted to fall within the
calibration range. The more a sample is diluted, the
higher the reporting limit. Sample dilution is
required when the concentration of a compound
exceeds the amount that produces a full-scale
response. At that point the detector becomes
saturated and fails to respond to additional target
compound(s). Diluting samples to accommodate the
high-concentrations can reduce the concentration of
the target analytes to levels where they can no
longer be detected.
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Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Proposed Rules
with cresosote-borate (or other mixtures
of treated railroad ties containing
creosote, borate and copper
naphthenate) in units designed to burn
biomass and fuel oil, could also
combust those materials in units at
major pulp and paper mills or units at
power production facilities subject to 40
CFR part 63, subpart DDDDD (Boiler
MACT) that combust such ties and had
been designed to burn biomass and fuel
oil, but are modified (e.g., oil delivery
mechanisms are removed) in order to
use natural gas instead of fuel oil as part
of normal operations and not solely as
part of start-up or shut-down operations.
These ties may continue to be
combusted as a product fuel only if
certain conditions are met, which are
intended to ensure that they are not
being discarded:
• Must be combusted in existing (i.e.,
commenced construction prior to April
14, 2014) stoker, bubbling bed, fluidized
bed or hybrid suspension grate boilers;
and
• Must comprise no more than 40
percent of the fuel that is used on an
annual heat input basis.
The standard would be applicable to
existing units burning creosote-borate,
and mixtures of creosote, copper
naphthenate and borate treated railroad
ties that had been designed to burn fuel
oil and biomass and have been modified
to burn natural gas. The standard will
also apply if an existing unit designed
to burn fuel oil and biomass is modified
at some point in the future.
The approach addresses only the
circumstance where contaminants in
these railroad ties are comparable to or
less than the traditional fuels the unit
was originally designed to burn (both
fuel oil and biomass) but that design
was modified in order to combust
natural gas. The approach is not a
general means to circumvent the
contaminant legitimacy criterion by
allowing combustion of any NHSM with
elevated contaminant levels, i.e., levels
not comparable to the traditional fuel
the unit is currently designed to burn.
The particular facilities in this case had
used these ties and would clearly be in
compliance with the legitimacy criteria
if they did not switch to the cleaner
natural gas fuel. Information indicating
that these ties are an important part of
the fuel mix due to the consistently
lower moisture content and higher Btu
value, as well as the benefits of drier
more consistent fuel to combustion
units with significant swings in steam
demand, further suggest that discard is
not occurring. Therefore, EPA believes it
appropriate to balance other relevant
factors in this categorical non-waste
determination and for the Agency to
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decide that the switching to the cleaner
natural gas would not render these
materials a waste fuel.
This case is no different from the
Agency’s determination in the February
2016 rule with respect to CTRTs. This
determination is accepted Agency
policy and is appropriately applied to
the case of other treated railway ties in
this proceeding. This determination, as
discussed in the February 2016 rule, is
based on the historical usage as a
product fuel in stoker, bubbling bed,
fluidized bed and hybrid suspension
grate boilers (i.e., boiler designs used to
combust used railroad ties, see 81 FR
6732).
The Agency solicits comments on the
proposed non-waste categorical
determination as described previously.
The Agency is also specifically
requesting comment on the following:
• Whether railroad ties with de
minimis levels of creosote should be
allowed to be combusted in biomass
only units;
• Should a particular de minimus
level should be designated and on what
should this level be based;
• Whether these OTRTs are
combusted in units designed to burn
coal in lieu of, or in addition to biomass
and fuel oil, and whether the
contaminant comparisons to meet
legitimacy criteria should include
comparisons to coal;
• In light of the data and sampling
history described above, whether the
quality of data is adequate to support
the proposed determination;
• Additional data that should be
considered in making the comparability
determinations for OTRTs.
F. Copper and Borates Literature Review
and Other EPA Program Review
Summary
Neither copper nor borate are
hazardous air pollutants (HAP), and
thus are not contaminants under NHSM
standards.29 30 To determine whether
those compounds pose health risk
concerns not directly covered by the
NHSM standards, and how those
concerns may be addressed under other
Agency programs, we conducted a
29 CAA Section 112 requires EPA to promulgate
regulations to control emissions of 187 HAP from
sources in source categories listed by EPA under
section 112(c), while CAA section 129 CISWI
standards include numeric emission limitations for
the nine pollutants, plus opacity (as appropriate),
that are specified in CAA section 129(a)(4). For the
purpose of NHSM standards, the definition of
contaminants is limited to HAP under CAA 112 and
CAA 129.
30 We note also under the CAA standards for
smaller area sources, emission limits are not
required for copper, borate (or for HAPs). Standards
for area sources focus on tune-ups of the boiler unit
(see 40 CFR 40 CFR part 63, subpart JJJJJJ.
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literature review on copper and borate
and the rules these constituents and
their compounds.
Under the Clean Water Act, EPA’s
Office of Water developed the Lead and
Copper Rule which became effective in
1991 (56 FR 26460). This rule set a limit
of 1.3 ppm copper concentration in 10%
of tap action level for public water.
Exceedances of this limit require
additional treatment steps in order to
reduce waste corrosivity and prevent
leaching of these metals (including
copper) from plumbing and distribution
systems. EPA’s Office of Water also
issued a fact sheet for copper under the
Clean Water Act section 304(a) titled the
Aquatic Life Ambient Freshwater
Quality Criteria.31 This fact sheet
explains that copper is an essential
nutrient at low concentrations, but is
toxic to aquatic organisms at higher
concentrations. The fact sheet listed the
following industries that contribute to
manmade discharges of copper to
surface waters: Mining, leather and
leather products, fabricated metal
products, and electric equipment. No
mention was made of deposition from
combustion sources, such as area source
boilers that may not have robust
particulate matter control devices
installed on them. By comparison, there
are no National Recommended Aquatic
Life Criteria for boron or borates.
EPA also investigated whether there
were any concerns that copper and
borate can react to form polychlorinated
dibenzodioxin and dibenzofurans
(PCDD/PCDF) during the combustion
process. Specific studies evaluating
copper involvement in dioxins and
furans formation in municipal or
medical waste incinerator flue gas have
been conducted.32 While the exact
mechanism and effects of other
combustion parameters on PCDD and
PCDF formation are still unknown,
increased copper chloride (CuCl) and/or
cupric chloride (CuCl2) on fly ash
particles has been shown to increase
concentrations of PCDD and PCDF in fly
ash. Various researchers conclude that
CuCl and/or CuCl2 are serving either
roles as catalysts in dioxin formation or
as chlorine sources for subsequent
PCDD/PCDF formation reactions (i.e.,
the CuCl and/or CuCl2 serve as
dechlorination/chlorination catalysts).
31 Aquatic life criteria for toxic chemicals are the
highest concentration of specific pollutants or
parameters in water that are not expected to pose
a significant risk to the majority of species in a
given environment or a narrative description of the
desired conditions of a water body being ‘‘free
from’’ certain negative conditions.
32 See technical memorandum on copper-related
programs and emission studies available in the
docket to this rulemaking.
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Copper emissions from fly ash are
reduced with good particulate matter
controls. A high performance fabric
filter may be the best control device,
although some portion of fine
particulate matter may pass through.
Cyclone separators and electro-static
precipitators have not been shown to be
effective in controlling these emissions,
and these types of controls may be more
prevalent amongst smaller, area source
boilers. Overall, results from many
studies indicate that most of the copper
ends up in the bottom ash.
Generally, borates have a low toxicity,
and should not be a concern from a
health risk perspective. As indicated
previously, neither boron nor borates
are listed as HAP under CAA section
112, nor are they considered to be
criteria air pollutants subject to any
emissions limitations. However,
elemental boron has been identified by
EPA in the coal combustion residuals
(CCR) risk analysis 33 to present some
potential risks for ecological receptors.
As a result of this risk, and boron’s
ability to move through the
subsurface,34 boron has been included
as a monitored constituent in CCR
monitoring provisions for coal ash
impoundments.
Copper has some acute toxicity, but
these exposures appear to be the result
of direct drinking water or cookingrelated intake. We anticipate the only
routes that copper releases to the
environment could result from burning
copper naphthenate treated ties would
be stormwater runoff from the ties and
deposition from boiler emissions. The
amount of copper remaining in the tie
after its useful life, however, may be
greatly reduced from the original
content, and facilities manage the
shredded tie material in covered areas to
prevent significant moisture swings,
therefore, we do not expect impacts
from copper-containing runoff. Due to
the high vaporization temperature,
copper will exist in solid phase after it
leaves the furnace, and would therefore
be controlled in the air pollution control
device operated to control particulate
emissions from the boiler.
EPA solicits comment and seeks any
additional information (e.g. preservative
leaching rates) that would help further
inform the determinations outlined
above regarding management and
combustion of borate and copper treated
railroad ties and impacts to surface
water, drinking water or air not
addressed under the NHSM standards.
33 Human and Ecological Risk Assessment of Coal
Combustion Residuals, EPA, December 2014.
34 See 80 FR 21302, April 17, 2015.
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IV. Effect of This Proposal on Other
Programs
Beyond expanding the list of NHSMs
that categorically qualify as non-waste
fuels, this rule does not change the
effect of the NHSM regulations on other
programs as described in the March 21,
2011 NHSM final rule, as amended on
February 7, 2013 (78 FR 9138) and
February 8, 2016 (81 FR 6688). Refer to
section VIII of the preamble to the
March 21, 2011 NHSM final rule 35 for
the discussion on the effect of the
NHSM rule on other programs.
V. State Authority
A. Relationship to State Programs
This proposal does not change the
relationship to state programs as
described in the March 21, 2011 NHSM
final rule. Refer to section IX of the
preamble to the March 21, 2011 NHSM
final rule 36 for the discussion on state
authority including, ‘‘Applicability of
State Solid Waste Definitions and
Beneficial Use Determinations’’ and
‘‘Clarifications on the Relationship to
State Programs.’’ The Agency, however,
would like to reiterate that this
proposed rule (like the March 21, 2011
and the February 7, 2013 final rules) is
not intended to interfere with a state’s
program authority over the general
management of solid waste.
B. State Adoption of the Rulemaking
No federal approval procedures for
state adoption of this proposed rule are
included in this rulemaking action
under RCRA subtitle D. Although the
EPA does promulgate criteria for solid
waste landfills and approves state
municipal solid waste landfill
permitting programs, RCRA does not
provide the EPA with authority to
approve state programs beyond those
landfill permitting programs. While
states are not required to adopt
regulations promulgated under RCRA
subtitle D, some states incorporate
federal regulations by reference or have
specific state statutory requirements that
their state program can be no more
stringent than the federal regulations. In
those cases, the EPA anticipates that, if
required by state law, the changes being
proposed in this document, if finalized,
will be incorporated (or possibly
adopted by authorized state air
programs) consistent with the state’s
laws and administrative procedures.
VI. Cost and Benefits
The value of any regulatory action is
traditionally measured by the net
35 76
36 76
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FR 15456, March 21, 2011 (page 15546).
Frm 00057
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change in social welfare that it
generates. This rulemaking, as
proposed, establishes a categorical nonwaste listing for selected NHSMs under
RCRA. This categorical non-waste
determination allows these materials to
be combusted as a product fuel in units,
subject to the CAA section 112 emission
standards, without being subject to a
detailed case-by-case analysis of the
material(s) by individual combustion
facilities, provided they meet the
conditions of the categorical listing. The
proposal establishes no direct standards
or requirements relative to how these
materials are managed or combusted. As
a result, this action alone does not
directly invoke any costs 37 or benefits.
Rather, this RCRA proposal is being
developed to simplify the rules for
identifying which NHSMs are not solid
wastes and to provide additional clarity
and direction for owners or operators of
combustion facilities. In this regard, this
proposal provides a procedural benefit
to the regulated community, as well as
the states through the establishment of
regulatory clarity and enhanced
materials management certainty.
Because this RCRA action is
definitional only, any costs or benefits
indirectly associated with this action
would not occur without the
corresponding implementation of the
relevant CAA rules. However, in an
effort to ensure rulemaking
transparency, the EPA prepared an
assessment in support of this action that
examines the scope and direction of
these indirect impacts, for both costs
and benefits.38 This document is
available in the docket for review and
comment. Finally, we recognize that
this action would indirectly affect
various materials management programs
and policies, and we are sensitive to
these concerns. The Agency encourages
comment on these effects.
The assessment document, as
mentioned previously, finds that
facilities operating under CAA section
129 standards that are currently burning
CTRTs, and no other solid wastes, and
who had planned to continue burning
these materials, may experience cost
savings associated with the potential
modification and operational
adjustments of their affected units. In
this case, the unit-level cost savings are
37 Excluding minor administrative burden/cost
(e.g., rule familiarization).
38 U.S. EPA, Office of Resource Conservation and
Recovery, ‘‘Assessment of the Potential Costs,
Benefits, and Other Impacts for the Proposed Rule:
Categorical Non-Waste Determination for Selected
Non Hazardous Secondary Materials (NHSMs):
Creosote-Borate Treated Railroad Ties, Copper
Naphthenate Treated Railroad Ties, and Copper
Naphthenate-Borate Treated Railroad Ties’’ EPA
Docket Number: EPA–HQ–OLEM–2016–0248.
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estimated, on average, to be
approximately $266,000 per year. In
addition, the increased regulatory
clarity and certainty associated with this
action may stimulate increased product
fuel use for one or more of these
NHSMs, potentially resulting in
upstream life cycle benefits associated
with reduced extraction of selected
virgin materials.
VII. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action. The Office of
Management and Budget (OMB) waived
review. The EPA prepared an economic
analysis of the potential costs and
benefits associated with this action.
This analysis, ‘‘Assessment of the
Potential Costs, Benefits, and Other
Impacts for the Proposed Rule—
Categorical Non-Waste Determination
for Selected Non-Hazardous Secondary
Materials (NHSMs): Creosote-Borate
Treated Railroad Ties, Copper
Naphthenate Treated Railroad Ties, and
Copper Naphthenate-Borate Treated
Railroad Ties’’, is available in the
docket. Interested persons are
encouraged to read and comment on
this document.
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B. Paperwork Reduction Act (PRA)
This action does not impose any new
information collection burden under the
PRA as this action only proposes to add
three new categorical non-waste fuels to
the NHSM regulations. OMB has
previously approved the information
collection activities contained in the
existing regulations and has assigned
OMB control number 2050–0205.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA. In making this
determination, the impact of concern is
any significant adverse economic
impact on small entities. An agency may
certify that a rule will not have a
significant economic impact on a
substantial number of small entities if
the rule relieves regulatory burden, has
no net burden or otherwise has a
positive economic effect on the small
entities subject to the rule. The
proposed addition of three NHSMs to
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the list of categorical non-waste fuels is
expected to indirectly reduce materials
management costs. In addition, this
action will reduce regulatory
uncertainty associated with these
materials and help increase
management efficiency. We have
therefore concluded that this action will
relieve regulatory burden for all directly
regulated small entities. We continue to
be interested in the potential impacts of
the proposed rule on small entities and
welcome comments on issues related to
such impacts.
D. Unfunded Mandates Reform Act
(UMRA)
This action contains no Federal
mandates as described in UMRA, 2
U.S.C. 1531–1538, and does not
significantly or uniquely affect small
governments. UMRA generally excludes
from the definition of ‘‘Federal
intergovernmental mandate’’ duties that
arise from participation in a voluntary
Federal program. Affected entities are
not required to manage the proposed
additional NHSMs as non-waste fuels.
As a result, this action may be
considered voluntary under UMRA.
Therefore, this action is not subject to
the requirements of section 202 or 205
of the UMRA
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. In
addition, this proposal will not impose
direct compliance costs on small
governments.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. It will neither impose
substantial direct compliance costs on
tribal governments, nor preempt Tribal
law. Potential aspects associated with
the categorical non-waste fuel
determinations under this proposed rule
may invoke minor indirect tribal
implications to the extent that entities
generating or consolidating these
NHSMs on tribal lands could be
affected. However, any impacts are
expected to be negligible. Thus,
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75799
Executive Order 13175 does not apply
to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This action is not subject to Executive
Order 13045 because it is not
economically significant as defined in
the Executive Order 12866, and because
the EPA does not believe the
environmental health or safety risks
addressed by this action present a
disproportionate risk to children. Based
on the following discussion, the Agency
found that populations of children near
potentially affected boilers are either not
significantly greater than national
averages, or in the case of landfills, may
potentially result in reduced discharges
near such populations.
The proposed rule, in conjunction
with the corresponding CAA rules, may
indirectly stimulate the increased fuel
use of one of more the three NHSMs by
providing enhanced regulatory clarity
and certainty. This increased fuel use
may result in the diversion of a certain
quantity of these NHSMs away from
current baseline management practices.
Any corresponding disproportionate
impacts among children would depend
upon whether children make up a
disproportionate share of the population
living near the affected units. Therefore,
to assess the potential an indirect
disproportionate effect on children, we
conducted a demographic analysis for
this population group surrounding CAA
section 112 major source boilers,
municipal solid waste landfills, and
construction and demolition (C&D)
landfills for the Major and Area Source
Boilers rules and the CISWI rule.39 We
assessed the share of the population
under the age of 18 living within a
three-mile (approximately five
kilometers) radius of these facilities.
Three miles has been used often in other
demographic analyses focused on areas
around industrial sources.40
39 The extremely large number of area source
boilers and the absence of site-specific coordinates
prevented us from assessing the demographics of
populations located near these sources. In addition,
we did not assess child population percentages
surrounding cement kilns that may use some outof-service railroad crossties for their thermal value.
40 The following publications which have
provided demographic information using a 3-mile
or 5-kilometer circle around a facility:
* U.S. GAO (Government Accountability Office).
Demographics of People Living Near Waste
Facilities. Washington DC: Government Printing
Office 1995.
* Mohai P, Saha R. ‘‘Reassessing Racial and
Socio-economic Disparities in Environmental
Justice Research’’. Demography. 2006;43(2): 383–
399.
* Mennis, Jeremy ‘‘Using Geographic Information
Systems to Create and Analyze Statistical Surfaces
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For major source boilers, our findings
indicate that the percentage of the
population in these areas under age 18
years is generally the same as the
national average.41 In addition, while
the fuel source and corresponding
emission mix for some of these boilers
may change as an indirect response to
this rule, emissions from these sources
would remain subject to the protective
CAA section 112 standards. For
municipal solid waste and C&D
landfills, we do not have demographic
results specific to children. However,
using the population below the poverty
level as a rough surrogate for children,
we found that within three miles of
facilities that may experience diversions
of one or more of these NHSMs, lowincome populations, as a percent of the
total population, are disproportionately
high relative to the national average.
Thus, to the extent that these NHSMs
are diverted away from municipal solid
waste or C&D landfills, any landfillrelated emissions, discharges, or other
negative activity potentially affecting
low-income (children) populations
living near these units are likely to be
reduced. Finally, transportation
emissions associated with the diversion
of some of this material away from
landfills to boilers are likely to be
generally unchanged, while these
emissions are likely to be reduced for
on-site generators of paper recycling
residuals that would reduce off-site
shipments.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act (NTTAA)
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This rulemaking does not involve
technical standards.
of Population and Risk for Environmental Justice
Analysis’’ Social Science Quarterly, 2002,
83(1):281–297.
* Bullard RD, Mohai P, Wright B, Saha R et al.
Toxic Wastes and Race at Twenty, 1987–2007,
March 2007. 5 CICWI Rule and Major Source
Boilers Rule.
41 U.S. EPA, Office of Resource Conservation and
Recovery. Summary of Environmental Justice
Impacts for the Non-Hazardous Secondary Material
(NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the
2010 Major Source Boiler NESHAP and the 2010
Area Source Boiler NESHAP. February 2011.
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J. Executive Order 12898: Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that it is not feasible
to determine whether this action has
disproportionately high and adverse
effects on minority populations, lowincome populations, and/or indigenous
peoples as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
However, the overall level of emissions,
or the emissions mix from affected
boilers are not expected to change
significantly because the three NHSMs
proposed to be categorically listed as
non-waste fuels are generally
comparable to the types of fuels that
these combustors would otherwise burn.
Furthermore, these units remain subject
to the protective standards established
under CAA section 112.
Our environmental justice
demographics assessment conducted for
the prior rulemaking 42 remains relevant
to this action. This assessment reviewed
the distributions of minority and lowincome groups living near potentially
affected sources using U.S. Census
blocks. A three-mile radius
(approximately five kilometers) was
examined in order to determine the
demographic composition (e.g., race,
income, etc.) of these blocks for
comparison to the corresponding
national compositions. Findings from
this analysis indicated that populations
living within three miles of major
source boilers represent areas with
minority and low-income populations
that are higher than the national
averages. In these areas, the minority
share 43 of the population was 33
percent, compared to the national
average of 25 percent. For these same
areas, the percent of the population
below the poverty line (16 percent) was
higher than the national average (13
percent).
In addition to the demographics
assessment described previously, we
also considered the potential for noncombustion environmental justice
concerns related to the potential
incremental increase in NHSMs
diversions from current baseline
management practices. These may
include the following:
42 U.S. EPA, Office of Resource Conservation and
Recovery. Summary of Environmental Justice
Impacts for the Non-Hazardous Secondary Material
(NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the
2010 Major Source Boiler NESHAP and the 2010
Area Source Boiler NESHAP. February 2011.
43 This figure is for overall population minus
white population and does not include the Census
group defined as ‘‘White Hispanic.’’
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• Reduced upstream emissions
resulting from the reduced production
of virgin fuel: Any reduced upstream
emissions that may indirectly occur in
response to reduced virgin fuel mining
or extraction may result in a human
health and/or environmental benefit to
minority and low-income populations
living near these projects.
• Alternative materials transport
patterns: Transportation emissions
associated with NHSMs diverted from
landfills to boilers are likely to be
similar, except for on-site paper
recycling residuals, where the potential
for less off-site transport to landfills may
result in reduced truck traffic and
emissions where such transport patterns
may pass through minority or lowincome communities.
• Change in emissions from baseline
management units: The diversion of
some of these NHSMs away from
disposal in landfills may result in a
marginal decrease in activity at these
facilities. This may include non-adverse
impacts, such as marginally reduced
emissions, odors, groundwater and
surface water impacts, noise pollution,
and reduced maintenance cost to local
infrastructure. Because municipal solid
waste and C&D landfills were found to
be located in areas where minority and
low-income populations are
disproportionately high relative to the
national average, any reduction in
activity and emissions around these
facilities is likely to benefit the citizens
living near these facilities.
Finally, this rule, in conjunction with
the corresponding CAA rules, may help
accelerate the abatement of any existing
stockpiles of the targeted NHSMs. To
the extent that these stockpiles may
represent negative human health or
environmental implications, minority
and/or low-income populations that live
near such stockpiles may experience
marginal health or environmental
improvements. Aesthetics may also be
improved in such areas.
As previously discussed, this RCRA
proposed action alone does not directly
require any change in the management
of these materials. Thus, any potential
materials management changes
stimulated by this action, and
corresponding impacts to minority and
low-income communities, are
considered to be indirect impacts, and
would only occur in conjunction with
the corresponding CAA rules.
List of Subjects in 40 CFR part 241
Environmental protection, Air
pollution control, Waste treatment and
disposal.
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Dated: October 19, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the
preamble, EPA proposes to amend
40,CFR chapter I as set forth below:
PART 241—SOLID WASTES USED AS
FUELS OR INGREDIENTS IN
COMBUSTION UNITS
1. The authority citation for Part 241
continues to read as follows:
■
Authority: 42 U.S.C. 6903, 6912, 7429.
2. Section 241.2 is amended by adding
in alphabetical order the definitions
‘‘Copper naphthenate treated railroad
ties’’, ‘‘Copper naphthenate-borate
treated railroad ties’’ and ‘‘Creosoteborate treated railroad ties’’ to read as
follows:
■
§ 241.2
Definitions.
*
*
*
*
*
Copper naphthenate treated railroad
ties means railroad ties treated with
copper naphthenate made from
naphthenic acid and copper salt.
Copper naphthenate-borate treated
railroad ties means railroad ties treated
with copper naphthenate and borate
made from disodium octaborate
tetrahydrate.
Creosote-borate treated railroad ties
means railroad ties treated with a wood
preservative containing creosols and
phenols and made from coal tar oil and
borate made from disodium octaborate
tetrahydrate.
*
*
*
*
*
■ 3. Section 241.4 is amended by adding
paragraphs (a)(8) through (10) to read as
follows:
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 creosote-borate and
mixed creosote, borate and copper
naphthenate treated railroad ties may
continue to be combusted as product
fuel under this subparagraph only if the
following conditions are met, which are
intended to ensure that such railroad
ties are not being discarded:
(A) Creosote-borate and mixed
creosote, borate and copper naphthenate
treated railroad ties must be burned in
existing (i.e., commenced construction
prior to April 14, 2014) stoker, bubbling
bed, fluidized bed, or hybrid suspension
grate boilers; and
(B) Creosote-borate and mixed
creosote, borate and copper naphthenate
treated railroad ties can comprise no
more than 40 percent of the fuel that is
used on an annual heat input basis.
(9) Copper naphthenate treated
railroad ties that are processed (which
must include at a minimum, metal
removal and shredding or grinding) and
then combusted in units designed to
burn biomass or units designed to burn
both biomass and fuel oil.
(10) Copper naphthenate-borate
treated railroad ties that are processed
(which must include at a minimum,
metal removal and shredding or
grinding) and then combusted in units
designed to burn biomass or units
designed to burn both biomass and fuel
oil.
*
*
*
*
*
[FR Doc. 2016–26381 Filed 10–31–16; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
*
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
§ 241.4 Non-waste Determinations for
Specific Non-Hazardous Secondary
Materials When Used as a Fuel.
Fish and Wildlife Service
*
*
*
*
(a) * * *
(8) Creosote-borate treated railroad
ties, and mixtures of creosote, borate
and copper naphthenate treated railroad
ties that are processed (which must
include at a minimum, metal removal
and shredding or grinding) and then
combusted in the following types of
units:
(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 that
combust creosote-borate treated railroad
ties and mixed creosote, borate and
copper naphthenate treated railroad ties,
and had been designed to burn biomass
and fuel oil, but are modified (e.g., oil
VerDate Sep<11>2014
18:29 Oct 31, 2016
Jkt 241001
50 CFR Part 17
[Docket No. FWS–R2–ES–2015–0148;
4500030113]
RIN 1018–BA86
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
for the Headwater Chub and a Distinct
Population Segment of the Roundtail
Chub
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of the
comment period.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), announce the
comment period reopening on our
proposed rules to add the headwater
SUMMARY:
PO 00000
Frm 00060
Fmt 4702
Sfmt 4702
75801
chub (Gila nigra) and the roundtail chub
(Gila robusta) distinct population
segment (DPS) as threatened species to
the List of Endangered and Threatened
Wildlife. We are taking this action based
on significant new information
regarding the species’ taxonomic status
as presented by the American Fisheries
Society and the American Society of
Ichthyologists and Herpetologists (AFS/
ASIH) Joint Committee on the Names of
Fishes. We are reopening the comment
period for 45 days to provide the public
additional time to review and consider
our proposed rulemakings in light of
this new information.
DATES: The comment period end date
for the proposed rule that published at
80 FR 60754 on October 7, 2015, is
December 16, 2016. We request that
comments be submitted by 11:59 p.m.
Eastern Time on the closing date.
ADDRESSES: Comment submission: You
may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter the appropriate Docket No.: FWS–
R2–ES–2015–0148 for the proposed
threatened status for headwater chub
and the roundtail chub distinct
population segment. You may submit a
comment by clicking on ‘‘Comment
Now!’’
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R2–ES–2015–
0148; U.S. Fish and Wildlife Service
Headquarters, MS: BPHC, 5275 Leesburg
Pike, Falls Church, VA 22041–3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
Public Comments section below for
more information). Comments
previously submitted need not be
resubmitted as they are already
incorporated into the public record and
will be fully considered in the final
determinations.
Document availability: The new
scientific information described in this
document is available at https://
www.regulations.gov in Docket No.
FWS–R2–ES–2015–0148.
FOR FURTHER INFORMATION CONTACT:
Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona
Ecological Services Field Office;
telephone 602–242–0210; facsimile
602–242–2513. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at (800–877–8339).
E:\FR\FM\01NOP1.SGM
01NOP1
]]>Agencies
[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Proposed Rules]
[Pages 75781-75801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26381]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 241
[EPA-HQ-OLEM-2016-0248; FRL-9953-38-OLEM]
RIN 2050-AG83
Additions to List of Section 241.4 Categorical Non-Waste Fuels:
Other Treated Railroad Ties
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to issue amendments to the Non-Hazardous Secondary Materials
rule, initially promulgated on March 21, 2011, and amended on February
7, 2013 and February 8, 2016, under the Resource Conservation and
Recovery Act. The Non-Hazardous Secondary Materials rule generally
established standards and procedures for identifying whether non-
hazardous secondary materials are solid wastes when used as fuels or
ingredients in combustion units. In the February 7, 2013 amendments,
the EPA listed particular non-hazardous secondary materials as
``categorical non-waste fuels'' provided certain conditions are met.
Persons burning these non-hazardous secondary materials do not need to
evaluate them under the general self-implementing case-by-case
standards and procedures that would otherwise apply to non-hazardous
secondary materials used in combustion units. The February 8, 2016
amendments added three materials including creosote treated railroad
ties to the list of categorical non-waste fuels. This action proposes
to add other treated railroad ties to the list, which are processed
creosote-borate, copper naphthenate and copper naphthenate-borate
treated railroad ties, under certain conditions depending on the
chemical treatment.
DATES: Comments must be received on or before January 3, 2017.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2016-0248, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: George Faison, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460; telephone number: (703) 305-7652;
email: faison.george@epa.gov.
SUPPLEMENTARY INFORMATION:
The following outline is provided to aid in locating information in
this preamble.
I. General Information
A. List of Abbreviations and Acronyms Used in This Proposed Rule
B. What is the statutory authority for this proposed rule?
C. Does this proposed rule apply to me?
D. What is the purpose of this proposed rule?
II. Background
A. History of the NHSM Rulemakings
B. Background to This Proposed Rule
C. How will EPA make categorical non-waste determinations?
III. Proposed Categorical Non-Waste Listing Determination for OTRTs
A. Detailed Description of OTRTs
B. OTRTs under Current NHSM Rules
C. Scope of the Proposed Categorical Non-Waste Listing for OTRTs
D. Rationale for Proposed Listing
E. Summary and Request for Comment
F. Copper and Borates Literature Review and Other EPA Program
Review Summary
[[Page 75782]]
IV. Effect of This Proposal on Other Programs
V. State Authority
A. Relationship to State Programs
B. State Adoption of the Rulemaking
VI. Cost and Benefits
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
A. List of Abbreviations and Acronyms Used in This Proposed Rule
Btu British thermal unit
C&D Construction and demolition
CAA Clean Air Act
CBI Confidential business information
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incinerator
CTRT Cresosote-treated railroad ties
EPA U.S. Environmental Protection Agency
FR Federal Register
HAP Hazardous air pollutant
MACT Maximum achievable control technology
NAICS North American Industrial Classification System
ND Non-detect
NESHAP National emission standards for hazardous air pollutants
NHSM Non-hazardous secondary material
OMB Office of Management and Budget
PAH Polycyclic aromatic hydrocarbons
ppm Parts per million
RCRA Resource Conservation and Recovery Act
RIN Regulatory information number
RL Reporting Limits
SBA Small Business Administration
SO2 Sulfur dioxide
SVOC Semi-volatile organic compound
TCLP Toxicity characteristic leaching procedure
UPL Upper prediction limit
U.S.C. United States Code
VOC Volatile organic compound
B. What is the statutory authority for this proposed rule?
The EPA is proposing that additional non-hazardous secondary
materials (NHSMs) be categorically listed as non-waste fuels in 40 CFR
241.4(a) under the authority of sections 2002(a)(1) and 1004(27) of the
Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C.
6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the Clean Air Act
(CAA) directs the EPA to establish standards for Commercial and
Industrial Solid Waste Incinerators (CISWI), which burn solid waste.
Section 129(g)(6) of the CAA provides that the term ``solid waste'' is
to be established by the EPA under RCRA (42 U.S.C. 7429(g)(6)). Section
2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as
are necessary to carry out its functions under the Act. The statutory
definition of ``solid waste'' is stated in RCRA section 1004(27).
C. Does this proposed rule apply to me?
Categories and entities potentially affected by this action, either
directly or indirectly, include, but may not be limited to the
following:
Generators and Potential Users a of the New Materials Proposed To Be
Added to the List of Categorical Non-Waste Fuels
------------------------------------------------------------------------
Primary industry category or sub category NAICS \b\
------------------------------------------------------------------------
Utilities............................................... 221
Construction of Buildings............................... 236
Site Preparation Contractors............................ 238910
Manufacturing........................................... 31, 32, 33
Wood Product Manufacturing.............................. 321
Sawmills................................................ 321113
Wood Preservation (includes crosstie creosote treating). 321114
Pulp, Paper, and Paper Products......................... 322
Cement manufacturing.................................... 32731
Railroads (includes line haul and short line)........... 482
Scenic and Sightseeing Transportation, Land (Includes: 487110
railroad, scenic and sightseeing)......................
Port and Harbor Operations (Used railroad ties)......... 488310
Landscaping Services.................................... 561730
Solid Waste Collection.................................. 562111
Solid Waste Landfill.................................... 562212
Solid Waste Combustors and Incinerators................. 562213
Marinas................................................. 713930
------------------------------------------------------------------------
\a\ Includes: Major Source Boilers, Area Source Boilers, and Solid Waste
Incinerators.
\b\ NAICS--North American Industrial Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities potentially impacted by this
action. This table lists examples of the types of entities of which EPA
is aware that could potentially be affected by this action. Other types
of entities not listed could also be affected. To determine whether
your facility, company, business, organization, etc., is affected by
this action, you should examine the applicability criteria in this
rule. If you have any questions regarding the applicability of this
action to a particular entity, consult the person listed in the FOR
FURTHER INFORMATION CONTACT section.
D. What is the purpose of this proposed rule?
The RCRA statute defines ``solid waste'' as ``any garbage, refuse,
sludge from a waste treatment plant, water supply treatment plant, or
air pollution control facility and other discarded material . . .
resulting from industrial, commercial, mining, and agricultural
operations, and from community
[[Page 75783]]
activities.'' (RCRA section 1004(27) (emphasis added)). The key concept
is that of ``discard'' and, in fact, this definition turns on the
meaning of the phrase, ``other discarded material,'' since this term
encompasses all other examples provided in the definition.
The meaning of ``solid waste,'' as defined under RCRA, is of
particular importance as it relates to section 129 of the CAA. If
material is a solid waste under RCRA, a combustion unit burning it is
required to meet the CAA section 129 emission standards for solid waste
incineration units. If the material is not a solid waste, combustion
units are required to meet the CAA section 112 emission standards for
commercial, industrial, and institutional boilers. Under CAA section
129, the term ``solid waste incineration unit'' is defined, in
pertinent part, to mean ``a distinct operating unit of any facility
which combusts any solid waste material from commercial or industrial
establishments.'' 42 U.S.C. 7429(g)(1). CAA section 129 further states
that the term ``solid waste'' shall have the meaning ``established by
the Administrator pursuant to the Solid Waste Disposal Act.'' Id at
7429(g)(6). The Solid Waste Disposal Act, as amended, is commonly
referred to as the Resource Conservation and Recovery Act or RCRA.
Regulations concerning NHSMs used as fuels or ingredients in
combustion units are codified in 40 CFR part 241.\1\ This action
proposes to amend the Part 241 regulations by adding three NHSMs to the
list of categorical non-waste fuels codified in Sec. 241.4(a). These
new proposed categorical listings are for:
---------------------------------------------------------------------------
\1\ See 40 CFR 241.2 for the definition of non-hazardous
secondary material.
---------------------------------------------------------------------------
Creosote-borate railroad ties (and mixtures of creosote,
copper naphthenate and copper naphthenate-borate railroad ties) that
are processed and then combusted in units designed to burn both biomass
and fuel oil. Such combustion must be part of normal operations and not
solely as part of start-up or shut-down operations. Also included are
units at major source pulp and paper mills or power producers \2\
subject to 40 CFR part 63, subpart DDDDD that combust these types of
treated railroad ties and had been designed to burn biomass and fuel
oil, but are modified (e.g., oil delivery mechanisms were removed) in
order to use natural gas instead of fuel oil. Again, such combustion
must be part of normal operations and not solely as part of start-up or
shut-down operations. These treated railroad ties may continue to be
combusted as product fuel in units that have been modified to use
natural gas only if the following conditions are met, which are
intended to ensure that these materials are not being discarded:
---------------------------------------------------------------------------
\2\ 40 CFR 241.2 defines power producer as a boiler unit
producing electricity for sale to the grid. The term does not
include units meeting the definition of electricity generating unit
under 40 CFR 63.10042 of the Utility Mercury and Air Toxics
Standards rule.
---------------------------------------------------------------------------
[cir] Must be burned in existing (i.e., commenced construction
prior to April 14, 2014) stoker, bubbling bed, fluidized bed, or hybrid
suspension grate boilers; and
[cir] Can comprise no more than 40 percent of the fuel that is used
on an annual heat input basis.
Copper naphthenate railroad ties combusted in units
designed to burn biomass, or biomass and fuel oil.
Copper naphthenate-borate railroad ties combusted in units
designed to burn biomass, or biomass and fuel oil.
II. Background
A. History of the NHSM Rulemakings
The Agency first solicited comments on how the RCRA definition of
solid waste should apply to NHSMs when used as fuels or ingredients in
combustion units in an advanced notice of proposed rulemaking (ANPRM),
which was published in the Federal Register on January 2, 2009 (74 FR
41). We then published an NHSM proposed rule on June 4, 2010 (75 FR
31844), which the EPA made final on March 21, 2011 (76 FR 15456).
In the March 21, 2011 rule, the EPA finalized standards and
procedures to be used to identify whether NHSMs are solid wastes when
used as fuels or ingredients in combustion units. ``Secondary
material'' was defined for the purposes of that rulemaking as any
material that is not the primary product of a manufacturing or
commercial process, and can include post-consumer material, off-
specification commercial chemical products or manufacturing chemical
intermediates, post-industrial material, and scrap (codified in 40 CFR
241.2). ``Non-hazardous secondary material'' is a secondary material
that, when discarded, would not be identified as a hazardous waste
under 40 CFR part 261 (codified in 40 CFR 241.2). Traditional fuels,
including historically managed traditional fuels (e.g., coal, oil,
natural gas) and ``alternative'' traditional fuels (e.g., clean
cellulosic biomass) are not secondary materials and thus, are not solid
wastes under the rule unless discarded (codified in 40 CFR 241.2).
A key concept under the March 21, 2011 rule is that NHSMs used as
non-waste fuels in combustion units must meet the legitimacy criteria
specified in 40 CFR 241.3(d)(1). Application of the legitimacy criteria
helps ensure that the fuel product is being legitimately and
beneficially used and not simply being discarded through combustion
(i.e., via sham recycling). To meet the legitimacy criteria, the NHSM
must be managed as a valuable commodity, have a meaningful heating
value and be used as a fuel in a combustion unit that recovers energy,
and contain contaminants or groups of contaminants at concentrations
comparable to (or lower than) those in traditional fuels which the
combustion unit is designed to burn.
Based on these criteria, the March 21, 2011 rule identified the
following NHSMs as not being solid wastes:
The NHSM is used as a fuel and remains under the control
of the generator (whether at the site of generation or another site the
generator has control over) that meets the legitimacy criteria (40 CFR
241.3(b)(1));
The NHSM is used as an ingredient in a manufacturing
process (whether by the generator or outside the control of the
generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));
Discarded NHSM has been sufficiently processed to produce
a fuel or ingredient that meets the legitimacy criteria (40 CFR
241.3(b)(4)); or
Through a case-by-case petition process, it has been
determined that the NHSM handled outside the control of the generator
has not been discarded and is indistinguishable in all relevant aspects
from a fuel product, and meets the legitimacy criteria (40 CFR
241.3(c)).
In October 2011, the Agency announced it would be initiating a new
rulemaking proceeding to revise certain aspects of the NHSM rule.\3\ On
February 7, 2013, the EPA published a final rule, which addressed
specific targeted amendments and clarifications to the 40 CFR part 241
regulations (78 FR 9112). These revisions and clarifications were
limited to certain issues on which the Agency had received new
information, as well as targeted revisions that the Agency believed
were appropriate in order to allow implementation of the rule as the
EPA originally intended. The amendments modified 40 CFR 241.2 and
241.3, added 40 CFR 241.4, and included the following: \4\
---------------------------------------------------------------------------
\3\ See October 14, 2011, Letter from Administrator Lisa P.
Jackson to Senator Olympia Snowe. A copy of this letter is in the
docket for the February 7, 2013 final rule (EPA-HQ-RCRA-2008-1873).
\4\ See 78 FR 9112 (February 7, 2013) for a discussion of the
rule and the Agency's basis for its decisions.
---------------------------------------------------------------------------
Revised Definitions: The EPA revised three definitions
discussed in the proposed rule: (1) ``clean cellulosic
[[Page 75784]]
biomass,'' (2) ``contaminants,'' and (3) ``established tire collection
programs.'' In addition, based on comments received on the proposed
rule, the Agency revised the definition of ``resinated wood.''
Contaminant Legitimacy Criterion for NHSMs Used as Fuels:
The EPA issued revised contaminant legitimacy criterion for NHSMs used
as fuels to provide additional details on how contaminant-specific
comparisons between NHSMs and traditional fuels may be made.
Categorical Non-Waste Determinations for Specific NHSMs
Used as Fuels. The EPA codified determinations that certain NHSMs are
non-wastes when used as fuels. If a material is categorically listed as
a non-waste fuel, persons that generate or burn these NHSMs will not
need to make individual determinations, as required under the existing
rules, that these NHSMs meet the legitimacy criteria. Except where
otherwise noted, combustors of these materials will not be required to
provide further information demonstrating their non-waste status. Based
on all available information, the EPA determined the following NHSMs
are not solid wastes when burned as a fuel in combustion units and has
categorically listed them in 40 CFR 241.4(a).\5\
---------------------------------------------------------------------------
\5\ In the March 21, 2011 NHSM rule (76 FR 15456), EPA
identified two NHSMs as not being solid wastes, although persons
would still need to make individual determinations that these NHSMs
meet the legitimacy criteria: (1) Scrap tires used in a combustion
unit that are removed from vehicles and managed under the oversight
of established tire collection programs and (2) resinated wood used
in a combustion unit. However, in the February 2013 NHSM rule, the
Agency amended the regulations and listed these NHSMs as categorical
non-waste fuels.
--Scrap tires that are not discarded and are managed under the
oversight of established tire collection programs, including tires
removed from vehicles and off-specification tires;
--Resinated wood;
--Coal refuse that has been recovered from legacy piles and processed
in the same manner as currently-generated coal that would have been
refuse if mined in the past;
--Dewatered pulp and paper sludges that are not discarded and are
generated and burned on-site by pulp and paper mills that burn a
significant portion of such materials where such dewatered residuals
are managed in a manner that preserves the meaningful heating value of
the materials.
Rulemaking Petition Process for Other Categorical Non-
Waste Determinations: EPA made final a process in 40 CFR 241.4(b) that
provides persons an opportunity to submit a rulemaking petition to the
Administrator, seeking a determination for additional NHSMs to be
categorically listed in 40 CFR 241.4(a) as non-waste fuels, if they can
demonstrate that the NHSM meets the legitimacy criteria or, after
balancing the legitimacy criteria with other relevant factors, EPA
determines that the NHSM is not a solid waste when used as a fuel.
The February 8, 2016 amendments (81 FR 6688) added the following to
the list of categorical non-waste fuels:
Construction and demolition (C&D) wood processed from C&D
debris according to best management practices. Under this listing,
combustors of C&D wood must obtain a written certification from C&D
processing facilities that the C&D wood has been processed by trained
operators in accordance with best management practices. Best management
practices must include sorting by trained operators that excludes or
removes the following materials from the final product fuel: Non-wood
materials (e.g., polyvinyl chloride and other plastics, drywall,
concrete, aggregates, dirt, and asbestos), and wood treated with
creosote, pentachlorophenol, chromated copper arsenate, or other
copper, chromium, or arsenical preservatives. Additional required best
management practices address removal of lead-painted wood.
Paper recycling residuals generated from the recycling of
recovered paper, paperboard and corrugated containers and combusted by
paper recycling mills whose boilers are designed to burn solid fuel.
Creosote-treated railroad ties (CTRT) that are processed
(which includes metal removal and shredding or grinding at a minimum)
and then combusted in the following types of units:
[cir] Units designed to burn both biomass and fuel oil as part of
normal operations and not solely as part of start-up or shut-down
operations, and
[cir] Units at major source pulp and paper mills or power producers
subject to 40 CFR part 63, subpart DDDDD, that combust CTRTs and had
been designed to burn biomass and fuel oil, but are modified (e.g., oil
delivery mechanisms are removed) in order to use natural gas instead of
fuel oil, as part of normal operations and not solely as part of start-
up or shut-down operations. The CTRTs may continue to be combusted as
product fuel only if the following conditions are met, which are
intended to ensure that the CTRTs are not being discarded: CTRTs must
be burned in existing (i.e., commenced construction prior to April 14,
2014) stoker, bubbling bed, fluidized bed, or hybrid suspension grate
boilers; and, CTRTs can comprise no more than 40 percent of the fuel
that is used on an annual heat input basis.
Based on these non-waste categorical determinations, as discussed
previously, facilities burning NHSMs that meet the categorical listing
description will not need to make individual determinations that the
NHSM meets the legitimacy criteria or provide further information
demonstrating their non-waste status on a site-by-site basis, provided
they meet the conditions of the categorical listing.
B. Background to This Proposed Rule
The Agency received a petition from the Treated Wood Council (TWC)
in April 2013 requesting that nonhazardous treated wood (including
borate and copper naphthenate) be categorically listed as non-waste
fuels in 40 CFR 241.4(a). Under the April 2013 petition, nonhazardous
treated wood would include: Waterborne borate based preservatives;
waterborne organic based preservatives; waterborne copper based wood
preservatives (ammoniacal/alkaline copper quat, copper azole, copper
HDO, alkaline copper betaine, or copper naphthenate); creosote;
oilborne copper naphthenate; pentachlorophenol; or dual-treated with
any of the above.
In the course of EPA's review of the April 2013 petition,
additional data was requested and received, and meetings were held
between TWC and EPA representatives. Overall, the EPA review determined
that there were limited data points available and the analytical
techniques for some contaminants were not appropriate to provide
information on the entire preserved wood sample as it would be
combusted. EPA also questioned the representativeness of the samples
being analyzed and the repeatability of the analyses.
In the subsequent August 21, 2015 letter from TWC to Barnes
Johnson,\6\ TWC requested that the Agency move forward on a subset of
materials that were identified in the original April 2013 petition
which are creosote borate, copper naphthenate, and copper naphthenate-
borate treated railroad ties. In the letter, TWC indicated that these
types of ties are increasingly being used as alternatives to CTRT, due,
in part, to lower overall contaminant levels and that the ability to
reuse the ties is an important consideration in rail tie purchasing
decisions. Information from industry also claimed that these
[[Page 75785]]
treatments have proven to increase decay resistance for ties in severe
decay environments and for species that are difficult to treat with
creosote alone.\7\ The letter stated that TWC will discuss the
remaining treated wood materials with EPA as a separate matter.
---------------------------------------------------------------------------
\6\ Included in the docket for the February 2016 final rule.
Follow-up meetings were also held with TWC on September 14, 2015 and
December 17, 2015 summaries of which are also included in that
docket.
\7\ Railway Tie Association ``Frequently Asked Questions''
available on https://www.rta.org/faqs. Assessed on August 26, 2016.
---------------------------------------------------------------------------
The Agency reviewed TWC's information on the three treated railroad
ties, creosote borate, copper naphthenate, and copper naphthenate-
borate, submitted on September 11, 2015 and requested additional
contaminant data, which was submitted on October 5, 2015 and October
19, 2015.\8\ Based on that information, we stated in the February 2016
final rule that we believe these three treated railroad ties are
candidates for categorical non-waste listings and expected to begin
development of a proposed rule under 40 CFR 241.4(a) regarding those
listings in the near future. The result is this proposal.
---------------------------------------------------------------------------
\8\ These data submissions and the letter from TWC on August 21,
2015 are included in the docket for this proposed rule.
---------------------------------------------------------------------------
C. How will EPA make categorical non-waste determinations?
The February 7, 2013 revisions to the NHSM rule discuss the process
and decision criteria whereby the Agency would make additional
categorical non-waste determinations (78 FR 9158). While the
categorical non-waste determinations in this action are not based on
rulemaking petitions, the criteria the EPA used to assess these NHSMs
as categorical non-wastes match the criteria to be used by the
Administrator to determine whether to grant or deny the categorical
non-waste petitions.9 10 These determinations follow the
criteria set out in 40 CFR 241.4(b)(5) to assess additional categorical
non-waste petitions and follow the statutory standards as interpreted
by the EPA in the NHSM rule for deciding whether secondary materials
are wastes. Those criteria include: (1) Whether each NHSM has not been
discarded in the first instance (i.e., was not initially abandoned or
thrown away) and is legitimately used as a fuel in a combustion unit
or, if discarded, has been sufficiently processed into a material that
is legitimately used as a fuel; and, (2) if the NHSM does not meet the
legitimacy criteria described in 40 CFR 241.3(d)(1), whether the NHSM
is integrally tied to the industrial production process, the NHSM is
functionally the same as the comparable traditional fuel, or other
relevant factors as appropriate.
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\9\ For a full discussion regarding the petition process for
receiving a categorical non-waste determination, see 78 FR 9112,
February 7, 2013 (page 9158-9159).
\10\ Supplementary information received from by M.A. Energy
Resources (February 2013) in support of the crosstie derived fuel
was submitted as a categorical petition in accordance 40 CFR
241.4(b).
---------------------------------------------------------------------------
Based on the information in the rulemaking record, the Agency is
proposing to amend 40 CFR 241.4(a) by listing in addition to CTRT,
three other types of treated railroad ties as categorical non-wastes.
Specific determinations regarding these other treated railroad ties
(OTRT), i.e., creosote-borate, copper naphthenate, copper naphthenate-
borate and mixtures of creosote, borate and copper naphthenate treated
railroad ties, as categorical non-wastes, and how the information was
assessed by EPA according to the criteria in 40 CFR 241.4(b)(5), are
discussed in detail in section III of this preamble.
The rulemaking record for this rule (i.e., EPA-HQ-RCRA-2016-0248)
includes those documents and information submitted specifically to
support the categorical listings discussed in this rule. However, the
principles on which the categorical listings are determined are based
on the NHSM rules promulgated over the past few years, as discussed
previously. While EPA is not formally including in the record for this
rule materials supporting the earlier NHSM rulemaking proceedings, the
Agency is nevertheless issuing this rule consistent with the NHSM rule
and its supporting documents. This rulemaking proceeding in no way
reopens any issues resolved in previous NHSM rulemaking proceedings. It
simply responds to a petition in accordance with the standards outlined
in the existing NHSM rule.
III. Proposed Categorical Non-Waste Listing Determination for OTRTs
The following sections describe the OTRTs that EPA is proposing to
list in section 241.4(a) as categorical non-wastes when burned as a
fuel in combustion units.
A. Detailed Description of OTRTs
1. Processing
Industry representatives stated that the removal of OTRTs from
service and processing of those ties into a product fuel is analogous
to that of CTRTs described in the February 2016 rule.\11\ OTRTs are
typically comprised of North American hardwoods that have been treated
with a wood preservative. Most of the energy recovery with OTRTs is
conducted through three parties: The generator of the crossties
(railroad or utility); the reclamation company that sorts the
crossties, and in some cases processes the material received from the
generator; and the combustor as third party energy producers.
Typically, ownership of the OTRTs are generally transferred directly
from the generator to the reclamation company that sorts materials for
highest value secondary uses, and then sells the products to end-users,
including those combusting the material as fuel. Some reclamation
companies sell OTRTs to processors who remove metal contaminants and
grind the ties into chipped wood. Other reclamation companies have
their own grinders, do their own contaminant removal, and can sell
directly to the combusting facilities. Information submitted to the
Agency indicates there are approximately 15 OTRT recovery companies in
North America with industry wide revenues of $65-75 million.
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\11\ 81 FR 6688.
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After crossties are removed from service, they are transferred for
sorting/processing, but in some cases, they may be temporarily stored
in the railroad rights-of-way or at another location selected by the
reclamation company. One information source \12\ indicated that when
the crossties are temporarily stored, they are stored until their value
as an alternative fuel can be realized, generally through a contract
completed for transferal of ownership to the reclamation contractor or
combustor. This means that not all OTRTs originate from crossties
removed from service in the same year; some OTRTs are processed from
crossties removed from service in prior years and stored by railroads
or removal/reclamation companies until their value as a landscaping
element or fuel could be realized.
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\12\ M.A. Energy Resources LLC, Petition submitted to
Administrator, EPA, February 2013.
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Typically, reclamation companies receive OTRTs by rail. The
processing of the crossties into fuel by the reclamation/processing
companies involves several steps. Contaminant metals (spikes, nails,
plates, etc.) undergo initial separation and removal by the user
organization (railroad company) during inspection. At the reclamation
company, metal is further removed by magnets and may occur in multiple
stages. After removal of contaminant metals, the crossties are then
ground or shredded to a specified size depending on the particular
needs of the end-use combustor, with chip size typically between 1-2
inches. Such
[[Page 75786]]
grinding and shredding facilitates handling, storage and metering to
the combustion chamber. By achieving a uniform particle size,
combustion efficiency will be improved due to the uniform and
controlled fuel feed rate and the ability to regulate the air supply.
Additionally, the reduction process exposes a greater surface area of
the particle to the heated gases, thus releasing any moisture more
rapidly, and thereby enhancing its heating value.\13\ This step may
occur in several phases, including primary and secondary grinding, or
in a single phase.
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\13\ Forest and Agriculture Organization of the United Nations.
The Potential Use of Wood Residues for Energy Generation, 2016.
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Once the crossties are ground to a specific size, there is further
screening based on the particular needs of the end-use combustor.
Depending on the configuration of the facility and equipment, screening
may occur concurrently with grinding or at a subsequent stage. Once the
processing of OTRTs is complete, the OTRTs are sold directly to the
end-use combustor for energy recovery. Processed OTRTs are delivered to
the buyers by railcar or truck. The OTRTs are then stockpiled prior to
combustion, with a typical storage timeframe ranging from a day to a
week. When the OTRTs are to be burned for energy recovery, the material
is then transferred from the storage location using a conveyor belt or
front-end loader. The OTRTs may be combined with other biomass fuels,
including hog fuel and bark. OTRTs are commonly used to provide the
high Btu fuel to supplement low (and sometimes wet) Btu biomass to
ensure proper combustion, often in lieu of coal or other fossil
fuels.\14\ The combined fuel may be further hammered and screened prior
to combustion.
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\14\ American Forest & Paper Association, American Wood
Council--Letter to EPA Administrator, December 6, 2012.
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In general, contracts for the purchase and combustion of OTRTs
include fuel specifications limiting contaminants, such as metals, and
prohibiting the receipt of wood treated with other preservatives such
as pentachlorophenol.
2. Treatment Descriptions
i. Copper Naphthenate
Copper naphthenate's effectiveness as a preservative has been known
since the early 1900s, and various formulations have been used
commercially since the 1940s. It is an organometallic compound formed
as a reaction product of copper salts and naphthenic acids derived from
petroleum. Unlike other commercially applied wood preservatives, small
quantities of copper naphthenate can be purchased at retail hardware
stores and lumberyards. Cuts or holes in treated wood can be treated in
the field with copper naphthenate. Wood treated with copper naphthenate
has a distinctive bright green color that weathers to light brown. The
treated wood also has an odor that dissipates somewhat over time. Oil
borne copper naphthenate is used for treatment of railroad ties since
that treatment results in the ties being more resistant to cracks and
checking. Waterborne copper naphthenate is used only for interior
millwork and exterior residential dimensional lumber applications such
as decking, fencing, lattice, recreational equipment, and other
structures. Thus, this proposal does not address waterborne copper
naphthenate.
Copper naphthenate can be dissolved in a variety of solvents. The
heavy oil solvent (specified in American Wood Protection Association
(AWPA) Standard P9, Type A) or the lighter solvent (AWPA Standard P9,
Type C) are the most commonly used. Copper naphthenate is listed in
AWPA standards for treatment of major softwood species that are used
for a variety of wood products. It is not listed for treatment of any
hardwood species, except when the wood is used for railroad ties. The
minimum copper naphthenate retentions (as elemental copper) range from
0.04 pounds per cubic foot (0.6 kilograms per cubic meter) for wood
used aboveground, to 0.06 pounds per cubic foot (1 kilograms per cubic
meter) for wood that will contact the ground and 0.075 pounds per cubic
foot (1.2 kilograms per cubic meter) for wood used in critical
structural applications.
When dissolved in No. 2 fuel oil, copper naphthenate can penetrate
wood that is difficult to treat. Copper naphthenate loses some of its
ability to penetrate wood when it is dissolved in heavier oils. Copper
naphthenate treatments do not significantly increase the corrosion of
metal fasteners relative to untreated wood.
Copper naphthenate is commonly used to treat utility poles,
although fewer facilities treat utility poles with copper naphthenate
than with creosote or pentachlorophenol. Unlike creosote and
pentachlorophenol, copper naphthenate is not listed as a Restricted Use
Pesticide (RUP) by the EPA. Even though human health concerns do not
require copper naphthenate to be listed as an RUP, precautions such as
the use of dust masks and gloves are used when working with wood
treated with copper naphthenate.
ii. Borates
Borates is the name for a large number of compounds containing the
element boron. Borate compounds are the most commonly used unfixed
waterborne preservatives. Unfixed preservatives can leach from treated
wood. They are used for pressure treatment of framing lumber used in
areas with high termite hazard and as surface treatments for a wide
range of wood products, such as cabin logs and the interiors of wood
structures. They are also applied as internal treatments using rods or
pastes. At higher rates of retention, borates also are used as fire-
retardant treatments for wood.
Performance characteristics include activity against fungi and
insects, with low mammalian toxicity. Another advantage of boron is its
ability to diffuse with water into wood that normally resists
traditional pressure treatment. Wood treated with borates has no added
color, no odor, and can be finished (primed and painted).
Inorganic boron is listed as a wood preservative in the AWPA
standards, which include formulations prepared from sodium octaborate,
sodium tetraborate, sodium pentaborate, and boric acid. Inorganic boron
is also standardized as a pressure treatment for a variety of species
of softwood lumber used out of contact with the ground and continuously
protected from water. The minimum borate (B2O3)
retention is 0.17 pounds per cubic foot (2.7 kilograms per cubic
meter). A retention of 0.28 pounds per cubic foot (4.5 kilograms per
cubic meter) is specified for areas with Formosan subterranean
termites.
Borate preservatives are available in several forms, but the most
common is disodium octaborate tetrahydrate (DOT). DOT has higher water
solubility than many other forms of borate, allowing more concentrated
solutions to be used and increasing the mobility of the borate through
the wood. With the use of heated solutions, extended pressure periods,
and diffusion periods after treatment, DOT can penetrate species that
are relatively difficult to treat, such as spruce. Several pressure
treatment facilities in the United States use borate solutions. For
refractory species destined for high decay areas, it has now become
relatively common practice to use borates as a pre-treatment to protect
the wood prior to processing with creosote.
iii. Creosote
Creosote was introduced as a wood preservative in the late 1800's
to prolong the life of railroad ties. CTRTs remain the material of
choice by
[[Page 75787]]
railroads due to their long life, durability, cost effectiveness, and
sustainability. As creosote is a by-product of coal tar distillation,
and coal tar is a by-product of making coke from coal, creosote is
considered a derivative of coal. The creosote component of CTRTs is
also governed by the standards established by AWPA. AWPA has
established two blends of creosote, P1/13 and P2. Railroad ties are
typically manufactured using the P2 blend that is more viscous than
other blends.
B. OTRTs Under Current NHSM Rules
1. March 2011 NHSM Final Rule
The March 2011 NHSM final rule stated that most creosote-treated
wood is non-hazardous. However, the presence of hexachlorobenzene, a
CAA section 112 HAP, as well as other HAP suggested that creosote-
treated wood, including CTRTs, contained contaminants at levels that
are not comparable to or lower than those found in wood or coal, the
fuel that creosote-treated wood would replace. In making the
assessment, the Agency did not consider fuel oil \15\ as a traditional
fuel that CTRTs would replace, and concluded at the time that
combustion of creosote-treated wood may result in destruction of
contaminants contained in those materials. Such destruction is an
indication of incineration, a waste activity. Accordingly, creosote-
treated wood, including CTRTs when burned, seemed more like a waste
than a commodity, and did not meet the contaminant legitimacy
criterion. This material, therefore, was considered a solid waste when
burned, and units' combusting it would be subject to the CAA section
129 emission standards (40 CFR part 60, subparts CCCC and DDDD).
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\15\ For the purposes of this proposed rule, fuel oil means oils
1-6, including distillate, residual, kerosene, diesel, and other
petroleum based oils. It does not include gasoline or unrefined
crude oil.
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Regarding borate treated wood, after reviewing data from one
commenter which shows that the levels of contaminants in this material
are comparable to those found in unadulterated wood for the seven
contaminants for which data was presented, the Agency stated in the
March 2011 rule that such treated-wood meets the legitimacy criterion
on the level of contaminants and comparability to traditional fuels.
Therefore, under that rule, borate-treated wood could be classified as
a non-waste fuel, provided they met the other two legitimacy criteria
and provided that the contaminant levels for any other HAP that may be
present in this material are also comparable to or less than those in
traditional fuels. The rule noted that such borate-treated wood would
need to be burned as a fuel for energy recovery within the control of
the generator. Finally, the rule indicated that some borate-treated
wood is subsequently treated with creosote, to provide an insoluble
barrier to prevent the borate compounds from leaching out of the wood.
The Agency did not receive data on the contaminant levels of the
resulting material, but data presented on creosote treated lumber when
combusted in units designed to burn biomass indicated that this NHSM
would likely no longer meet the legitimacy criteria and would be
considered a solid waste when burned as a fuel.
The rule did not have information generally about the transfer of
borate-treated wood to other companies to make a broad determination
about its use as a fuel outside the control of the generator. Thus,
under the March 2011 rule, borate-treated wood would need to be burned
as a fuel for energy recovery within the control of the generator (76
FR 15484).
With regard to wood treated with copper naphthenate, no additional
contaminant data was provided for the March 2011 rule that would
reverse the position in the January 2010 proposed rule, which
considered wood treated with copper naphthenate a solid waste because
of concerns of elevated levels of contaminants (76 FR 15484). The rule
acknowledged, as in the proposed rule, that the Agency did not have
sufficient information on the contaminant levels in wood treated with
copper naphthenate. Thus, if a person could demonstrate that copper
naphthenate treated-wood is burned in a combustion unit as a fuel for
energy recovery within the control of the generator and meets the
legitimacy criteria or, if discarded, can demonstrate that they have
sufficiently processed the material, that person can handle its copper
naphthenate treated-wood as a non-waste fuel.
2. February 2013 NHSM Final Rule
In the February 2013 NHSM final rule, EPA noted that the American
Forest and Paper Association (AF&PA) and the American Wood Council
submitted a letter with supporting information on December 6, 2012,
seeking a categorical listing for CTRTs combusted in any unit.\16\ The
letter included information regarding the amounts of railroad ties
combusted each year and the value of the ties as fuel. The letter also
discussed how CTRTs satisfy the legitimacy criteria, including its high
Btu value.
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\16\ American Forest & Paper Association, American Wood
Council--Letter to EPA Administrator, December 6, 2012.
---------------------------------------------------------------------------
While this information was useful, it was not sufficient for the
EPA to propose that CTRTs be listed categorically as a non-waste fuel
at that time. Therefore, to further inform the Agency as to whether to
list CTRTs categorically as a non-waste fuel, EPA requested that
additional information be provided, and indicated that if this
additional information supported and supplemented the representations
made in the December 2012 letter, EPA would expect to propose a
categorical listing for CTRTs. The requested information included:
A list of industry sectors, in addition to forest product
mills, that burn railroad ties for energy recovery.
The types of boilers (e.g., kilns, stoker boilers,
circulating fluidized bed, etc.) that burn railroad ties for energy
recovery.
The traditional fuels and relative amounts (e.g., startup,
30 percent, 100 percent) of these traditional fuels that could
otherwise generally be burned in these types of units. The extent to
which non-industrial boilers (e.g., commercial or residential boilers)
burn CTRTs for energy recover.
Laboratory analyses for contaminants known or reasonably
suspected to be present in creosote-treated railroad ties, and
contaminants known to be significant components of creosote,
specifically polycyclic aromatic hydrocarbons (i.e., PAH-16),
dibenzofuran, cresols, hexachlorobenzene, 2,4-dinitrotoluene, biphenyl,
quinoline, and dioxins.\17\ See 81 FR 6723 for detailed responses to
those questions.
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\17\ The Agency requested these analyses based on the limited
information previously available concerning the chemical makeup of
CTRTs. That limited information included one well-studied sample
from 1990 (showing the presence of both PAHs and dibenzofuran), past
TCLP results (which showing the presence of cresols,
hexachlorobenzene and 2,4-dinitrotoluene), Material Safety Data
Sheets for coal tar creosote (which showing the potential presence
of biphenyl and quinoline), and the absence of dioxin analyses prior
to combustion despite extensive dioxin analyses of post-combustion
emissions.
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3. February 2016 NHSM Final Rule
As discussed in section II.B of this preamble, EPA stated in the
February 2016 final rule that it had reviewed the information submitted
from stakeholders regarding CTRTs and determined that the information
received supported a categorical determination for those materials
under certain conditions (see 40 CFR
[[Page 75788]]
241.4(a)(7)). That rule also indicated that, based on an August 21,
2015 letter to Barnes Johnson, TWC requested that the Agency move
forward on a subset of materials that were identified in a previous
April 2013 petition. EPA stated in the February 2016 rule, the Agency
had reviewed the TWC information on the three treated railroad ties,
creosote borate, copper naphthenate, submitted on September 11, 2015
and had requested additional contaminant data. Based on information
provided to the Agency at the time, we believed these three treated
railroad ties were candidates for categorical non-waste listings and
expected to begin development of a proposed rule under 40 CFR 241.4(a)
regarding those listings in the near future.
C. Scope of the Proposed Categorical Non-Waste Listing for OTRTs
As discussed previously in section II.B of this preamble, TWC
submitted letters and supporting documents to EPA seeking a categorical
listing for OTRTs. The contaminants found in OTRTs are not materially
different from the traditional fuels (fuel oil and/or biomass) that
these facilities are designed to burn as fuel. Therefore, the Agency is
proposing to list, as categorical non-wastes, processed OTRTs when used
as fuels. The rationale for this proposal is discussed in detail in the
following sections.
D. Rationale for Proposed Listing
1. Discard
When deciding whether an NHSM should be listed as a categorical
non-waste fuel in accordance with 40 CFR 241.4(b)(5), EPA first
evaluates whether or not the NHSM has been discarded, and if not
discarded, whether or not the material is legitimately used as a
product fuel in a combustion unit. If the material has been discarded,
EPA evaluates the NHSM as to whether it has been sufficiently processed
into a material that is legitimately used as a product fuel.
Data submitted by petitioners regarding OTRTs removed from service
and processed was analogous to that for CTRTs. Specifically, OTRTs
removed from service are sometimes temporarily stored in the railroad
right-of-way or at another location selected by the reclamation
company. This means that not all OTRTs originate from crossties removed
from service in the same year; some OTRTs are processed from crossties
removed from service in prior years and stored by railroads or removal/
reclamation companies until a contract for reclamation is in place.
EPA is reiterating its statement from the February 8, 2016 final
rule regarding cases where a railroad or reclamation company waits for
more than a year to realize the value of OTRTs as a fuel. The Agency
again concludes that OTRTs are removed from service and stored in a
railroad right-of-way or location for long periods of time--that is, a
year or longer, without a determination regarding their final end use
(e.g., landscaping, as a fuel or landfilled) thus indicating that the
material has been discarded and is a solid waste (see also the general
discussion of discard at 76 FR 15463 in the March 2011 rule). Regarding
any assertion that OTRTs are a valuable commodity in a robust market,
the Agency would like to remind persons that NHSMs may have value in
the marketplace and still be considered solid wastes.
2. Processing
Since the OTRTs removed from service are considered discarded
because they can be stored for long periods of time without a final
determination regarding their final end use, in order for them to be
considered a non-waste fuel, they must be processed, thus transforming
the OTRTs into a product fuel that meets the legitimacy criteria.\18\
The Agency concludes that the processing of OTRTs described previously
in section III.A.1 of this preamble meets the definition of processing
in 40 CFR 241.2. As discussed in that section, processing includes
operations that transform discarded NHSM into a non-waste fuel or non-
waste ingredient, including operations necessary to: remove or destroy
contaminants; significantly improve the fuel characteristics (e.g.,
sizing or drying of the material, in combination with other
operations); chemically improve the as-fired energy content; or improve
the ingredient characteristics. Minimal operations that result only in
modifying the size of the material by shredding do not constitute
processing for the purposes of the definition. The Agency concludes
that OTRTs meet the definition of processing in 40 CFR 241.3 because
contaminant metals are removed in several steps and the fuel
characteristics are significantly improved; specifically:
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\18\ Persons who concluded that their OTRTs are not discarded
and thus are not subject to this categorical determination may
submit an application to the EPA Regional Administrator that the
material has not been discarded when transferred to a third party
and is indistinguishable from a product fuel (76 FR 15551).
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Contaminants (e.g., spikes, plates, transmission wire and
insulator bulbs) are removed during initial inspection by the user
organization.
Removal of contaminant metals occurs again at the
reclamation facility using magnets; such removal may occur in multiple
stages.
The fuel characteristics of the material are improved when
the crossties are ground or shredded to a specified size (typically 1-2
inches) depending on the particular needs of the end-use combustor. The
grinding may occur in one or more phases.
Once the contaminant metals are removed and the OTRTs are
ground, there may be additional screening to bring the material to a
specified size.
3. Legitimacy Criteria
EPA can list a discarded NHSM categorically as a non-waste fuel if
it has been ``sufficiently processed,'' and meets the legitimacy
criteria. The three legitimacy criteria to be evaluated are: (1) The
NHSM must be managed as a valuable commodity, (2) the NHSM must have a
meaningful heating value and be used as a fuel in a combustion unit to
recover energy, and (3) the NHSM must have contaminants or groups of
contaminants at levels comparable to or less than those in the
traditional fuel the unit is designed to burn.\19\
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\19\ We note that even if the NHSM does not meet one or more of
the legitimacy criteria, the Agency could still propose to list an
NHSM categorically by balancing the legitimacy criteria with other
relevant factors (see 40 CFR 241.4(b)(2).
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i. Managed as a Valuable Commodity
Data submitted \20\ indicates that OTRT processing and subsequent
management is analogous to the processing of CTRTs outlined in the
February 8, 2016 final categorical rule. The processing of OTRTs is
correlated to the particular needs of the end-use combustor.
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\20\ See section III.D.4. for a description of EPA's review of
all data submitted regarding meeting legitimacy criteria.
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The process begins when the railroad or utility company removes the
old OTRTs from service. An initial inspection is conducted where non-
combustible materials are sorted out. OTRTs are stored in staging areas
until shippable quantities are collected. Shippable quantities are
transported via truck or rail to a reprocessing center.
At the reprocessing center, pieces are again inspected, sorted, and
non-combustible materials are removed. Combustible pieces then undergo
size reduction and possible blending with compatible combustibles. Once
the OTRTs meet the end use specification, they are then sold directly
to the end-use combustor for energy recovery.
[[Page 75789]]
OTRTs are delivered to the end-use combustors via railcar and/or truck
similar to delivery of traditional biomass fuels.
After receipt, OTRTs are stockpiled similar to analogous biomass
fuels (e.g., in fuel silos) to maximize dryness and minimize dust.
While awaiting combustion at the end-user, which usually occurs within
one day to a week of arrival, the OTRTs are also transferred and/or
handled from storage in a manner consistent with the transfer and
handling of biomass fuels. Procedures include screening by the end-use
combustor, combining with other biomass fuels, and transferring to the
combustor via conveyor belt or front-end loader.
Since the storage of the processed material clearly does not exceed
reasonable time frames and the processed ties are handled/treated
similar to analogous biomass fuels by end-use combustors, OTRTs meet
the criterion for being managed as a valuable commodity.
ii. Meaningful Heating Value and Used as a Fuel To Recover Energy
EPA received the following information for the heating values of
processed OTRTs: 6,867 Btu/lb for creosote-borate; 7,333 Btu/lb for
copper naphthenate; 5,967 Btu/lb for copper naphthenate-borate; 5,232
Btu/lb for mixed railroad ties containing 56% creosote, 41% creosote-
borate, 1% copper naphthenate, 2% copper naphthenate-borate; and 7,967
Btu/lb for mixed ties containing 25% creosote, 25% creosote borate, 25%
copper naphthenate and 25% copper naphthenate-borate.21 22
In the March 2011 NHSM final rule, the Agency indicated that NHSMs with
an energy value greater than 5,000 Btu/lb, as fired, are considered to
have a meaningful heating value.\23\ Thus, OTRTs meet the criterion for
meaningful heating value and used as a fuel to recover energy.
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\21\ Letter from Jeff Miller to Barnes Johnson, September 11,
2015; see docket for this proposed rule.
\22\ These values reflect averages from 2013 and 2015 data.
Relevant lab data on Btu/lb for each types of processed OTRT can be
viewed in the September and October 2015 letters from Jeff Miller to
Barnes Johnson included in the docket.
\23\ See 76 FR 15541.
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iii. Contaminants Comparable to or Lower Than Traditional Fuels
For each type of OTRT, EPA has compared the September 2015 data
submitted on contaminant levels by petitioners to contaminant data for
two traditional fuels: Biomass, including untreated clean wood, and
fuel oil (petitioners did not provide data or request that contaminant
comparisons be made to coal). The petitioner's data included samples
taken from 15 different used creosote-borate ties, 15 different copper
naphthenate-borate ties, 15 creosote ties, and 15 copper naphthenate
ties. Each type of tie sample was divided into three groups of five tie
samples each. This resulted in 12 total groups corresponding to the
four different types ties. Each group was then isolated, mixed
together, processed into a fuel-type consistency, and shipped to the
laboratory for analysis.
As noted previously, use of these types of ties are relatively new
compared to creosote, so few have transitioned to fuel use at this
time. To simulate that transition over time, three samples of unevenly-
blended tie material (56% creosote, 41% creosote-borate, 1% copper
naphthenate, 2% copper naphthenate-borate) and three samples of equally
blended tie material (25% creosote, 25% creosote-borate, 25% copper
naphthenate, 25% copper naphthenate-borate) were analyzed. The lab
analyzed three samples of each of tie-derived boiler fuel treated with
creosote, creosote-borate, copper naphthenate and copper naphthenate-
borate. In addition, the lab analyzed three samples of equally-blended
tie material, three samples of unevenly-blended tie material, and three
samples of untreated wood for a total of 21 samples.
In addition to September 2015 data, copper naphthenate-borate, and
copper naphthenate test data had also been submitted in conjunction
with TWC's earlier December 4, 2013 petition and are included in the
following tables. As noted in section II.B of this preamble, the data
did not have details on the number of samples collected. In addition,
sulfur was measured using leachable anion techniques that do not
provide results of the total contaminant content, and heat content was
not measured. The results of the analysis of the 2015 and 2013 data are
shown in the following tables.\24\
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\24\ Note for contaminant analyses, when making contaminant
comparisons for purposes of meeting the legitimacy criterion, it
would be appropriate in this circumstance to find that grouping of
contaminants would not result in discard. For example, under the
grouping concept, individual SVOC levels may be elevated above that
of the traditional fuel, but the contaminant legitimacy criterion
will be met as long as total SVOCs is comparable to or less than
that of the traditional fuel. Such an approach is standard practice
employed by the Agency in developing regulations and is consistent
with monitoring standards under CAA sections 112 and 129. See 78 FR
9146, February 7, 2013, for further findings that relate to the
issue of grouping contaminants for purposes of determining discard.
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Copper Naphthenate
Copper Naphthenate
------------------------------------------------------------------------
Copper
naphthenate Biomass/
Contaminant railroad ties Untreated Fuel Oil
contaminant wood \b\ \b\
levels \a\ \f\
------------------------------------------------------------------------
Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony....................... <1.4 ND-26 ND-15.7
Arsenic........................ 0.53-0.93 ND-298 ND-13
Beryllium...................... <0.60-0.05 ND-10 ND-19
Cadmium........................ <0.28-0.20 ND-17 ND-1.4
Chromium....................... 0.22-0.50 ND-340 ND-37
Cobalt......................... <6.0-0.81 ND-213 ND-8.5
Lead........................... <0.36-3.5 ND-340 ND-56.8
Manganese...................... 7.1-166 ND-15,800 ND-3,200
Mercury........................ <0.20 ND-1.1 ND-0.2
Nickel......................... 0.79-1.1 ND-540 ND-270
Selenium....................... 0.41-0.84 ND-9.0 ND-4
------------------------------------------------------------------------
Non-Metal Elements (ppm-dry basis)
------------------------------------------------------------------------
Chlorine....................... <100 ND-5,400 ND-1,260
[[Page 75790]]
Fluorine....................... <100 ND-300 ND-14
Nitrogen....................... <500 200-39,500 42-8,950
Sulfur......................... 190-240 ND-8,700 ND-57,000
------------------------------------------------------------------------
Semivolatile Hazardous Pollutants (ppm-dry basis)
------------------------------------------------------------------------
Acenaphthene................... 3.0-95 ND-50 111
Acenaphthylene................. <1.3 ND-4 4.1
Anthracene..................... <1.3-6.3 0.4-87 96
Benzo[a]anthracene............. <1.3 ND-62 41-1,900
Benzo[a]pyrene................. <1.3 ND-28 0.60-960
Benzo[b]fluoranthene........... <1.3 ND-42 11-540
Benzo[ghi]perylene............. <1.3 ND-9 11.4
Benzo[k]fluoranthene........... <1.3 ND-16 0.6
Chrysene....................... <1.3 ND-53 2.2-2,700
Dibenz[a,h]anthracene.......... <1.3 ND-3 4.0
Fluoranthene................... <1.3-6.5 0.6-160 31.6-240
Fluorene....................... 4.5-53 ND-40 3,600
Indeno[1,2,3-cd]pyrene......... <1.3 ND-12 2.3
Naphthalene.................... 8.2-80 ND-38 34.3-4,000
Phenanthrene................... 8.2-77 0.9-190 0-116,000
Pyrene......................... <1.3-15 0.2-160 23-178
16-PAH......................... 49-298 5-921 3,900-54,7
00
Pentachlorophenol.............. <30 \g\ ND-1 --
Biphenyl....................... -- \e\ -- 1,000-1,20
0
----------------------------------------
Total SVOC \c\............. 77-328 5-922 4,900-54,7
00
------------------------------------------------------------------------
Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm--dry
basis)
------------------------------------------------------------------------
Benzene........................ <0.69 -- ND-75
--
Phenol......................... -- \e\ -- ND-7,700
Styrene........................ <0.69 -- ND-320
Toluene........................ <0.69 -- ND-380
Xylenes........................ <0.69 -- ND-3,100
Cumene......................... -- \e\ -- 6,000-8,00
0
Ethyl benzene.................. <0.69 -- 22-1,270
Formaldehyde................... -- \e\ 1.6-27 --
Hexane......................... -- \e\ -- 50-10,000
----------------------------------------
Total VOC \d\.............. <3.4 1.6-27 6,072-19,8
10
------------------------------------------------------------------------
\a\ Data provided by Treated Wood Council on April 3, 2013, September
11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for
Comparison, November 29, 2011, available at https://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn
from various literature sources and from data submitted to USEPA,
Office of Air Quality Planning and Standards (OAQPS). SVOC values from
2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and
maximum values for each contaminant. This is because minimum and
maximum concentrations for individual VOCs and SVOCs do not always
come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing,
but this analyte is included in the SVOC group, so is not reflected
here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated
wood, but these are not expected to be present in treated wood
formulation being analyzed based on preservative chemistry and results
from previous CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting
limit, not the method detection limit. Therefore, there are many cases
where the non-detect value may be greater than another test's detected
value due to analysis-specific RLs being different between individual
tests (i.e., differences in tested amount or analyzer calibration
range adjustments). If result is less than the method detection limit
(MDL), the method reporting limit (MRL), which is always greater than
MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on
preservative chemistry.
As indicated, railroad ties treated with copper naphthenate have
contaminants that are comparable to or less than those in biomass or
fuel oil. Given that these railroad ties are a type of treated wood
biomass, such ties can be combusted in units designed to burn biomass
or biomass and fuel oil.
Copper Naphthenate-Borate
[[Page 75791]]
Copper Naphthenate-Borate
------------------------------------------------------------------------
Copper
naphthenate-
borate Biomass/ Fuel oil
Contaminant railroad ties Untreated \b\
contaminant wood \b\
levels \a\ \f\
------------------------------------------------------------------------
Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony....................... <1.4 ND-26 ND-15.7
Arsenic........................ 0.52-0.72 ND-298 ND-13
Beryllium...................... <0.67 ND-10 ND-19
Cadmium........................ <0.31-0.078 ND-17 ND-1.4
Chromium....................... 0.11-0.78 ND-340 ND-37
Cobalt......................... <7.5-0.74 ND-213 ND-8.5
Lead........................... <0.38-4.0 ND-340 ND-56.8
Manganese...................... 14-170 ND-15,800 ND-3,200
Mercury........................ <0.15 ND-1.1 ND-0.2
Nickel......................... 0.46-2.0 ND-540 ND-270
Selenium....................... <0.64-0.52 ND-9.0 ND-4
------------------------------------------------------------------------
Non-Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Chlorine....................... <100 ND-5,400 ND-1,260
Fluorine....................... <100 ND-300 ND-14
Nitrogen....................... <500 200-39,500 42-8,950
Sulfur......................... 140-170 ND-8,700 ND-57,000
------------------------------------------------------------------------
Semivolatile Hazardous Pollutants (ppm--dry basis)
------------------------------------------------------------------------
Acenaphthene................... 4.8-17 ND-50 111
Acenaphthylene................. <1.2-0.9 ND-4 4.1
Anthracene..................... <1.2-7.2 0.4-87 96
Benzo[a]anthracene............. <1.2-3.7 ND-62 41-1,900
Benzo[a]pyrene................. <1.2-1.4 ND-28 0.60-960
Benzo[b]fluoranthene........... <1.2-3.9 ND-42 11-540
Benzo[ghi]perylene............. <1.2 ND-9 11.4
Benzo[k]fluoranthene........... <1.2-20 ND-16 0.6
Chrysene....................... <1.2-6.6 ND-53 2.2-2,700
Dibenz[a,h]anthracene.......... <1.2 ND-3 4.0
Fluoranthene................... <1.2-20 0.6-160 31.6-240
Fluorene....................... 2.2-16 ND-40 3,600
Indeno[1,2,3-cd]pyrene......... <1.2 ND-12 2.3
Naphthalene.................... 5.2-82 ND-38 34.3-4,000
Phenanthrene................... 3.6-43 0.9-190 0-116,000
Pyrene......................... <1.3-19 0.2-160 23-178
16-PAH......................... 39-145 5-921 3,900-54,7
00
Pentachlorophenol.............. <28 \g\ ND-1 --
Biphenyl....................... -- \e\ -- 1,000-1,20
0
----------------------------------------
Total SVOC \c\............. 66-173 5-922 4,900-54,7
00
------------------------------------------------------------------------
Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm--dry
basis)
------------------------------------------------------------------------
Benzene........................ <0.77 -- ND-75
-- --
Phenol......................... -- \e\ -- ND-7,700
Styrene........................ <0.77 -- ND-320
Toluene........................ <0.77 -- ND-380
Xylenes........................ <0.77 -- ND-3,100
Cumene......................... -- \e\ -- 6,000-8,00
0
Ethyl benzene.................. <0.77 -- 22-1,270
Formaldehyde................... -- \e\ 1.6-27 --
Hexane......................... -- \e\ -- 50-10,000
----------------------------------------
Total VOC \d\.............. <3.8 1.6-27 6,072-19,8
10
------------------------------------------------------------------------
\a\ Data provided by Treated Wood Council on April 3, 2013, September
11, 2015 and October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for
Comparison, November 29, 2011, available at https://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn
from various literature sources and from data submitted to USEPA,
Office of Air Quality Planning and Standards (OAQPS). SVOC values from
2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and
maximum values for each contaminant. This is because minimum and
maximum concentrations for individual VOCs and SVOCs do not always
come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing,
but this analyte is included in the SVOC group, so is not reflected
here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated
wood, but these are not expected to be present in treated wood
formulation being analyzed based on preservative chemistry and results
from previous CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting
limit, not the method detection limit. Therefore, there are many cases
where the non-detect value may be greater than another test's detected
value due to analysis-specific RLs being different between individual
tests (i.e., differences in tested amount or analyzer calibration
range adjustments). If result is less than the method detection limit
(MDL), the method reporting limit (MRL), which is always greater than
MDL, was used by the lab.
[[Page 75792]]
\g\ Not expected in the treated wood formulation being tested based on
preservative chemistry.
As indicated, railroad ties treated with copper naphthenate-borate
have contaminants that are comparable to or less than those in biomass
or fuel oil. Given that these railroad ties are a type of treated wood
biomass, such ties can be combusted in units designed to burn biomass
or biomass and fuel oil.
Creosote-Borate
Creosote-Borate
------------------------------------------------------------------------
Creosote-
borate Biomass/
Contaminant railroad ties untreated Fuel oil
contaminant wood \b\ \b\
levels \a\ \f\
------------------------------------------------------------------------
Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony....................... <1.3 ND-26 ND-15.7
Arsenic........................ <1.3-0.80 ND-298 ND-13
Beryllium...................... <0.60-0.032 ND-10 ND-19
Cadmium........................ 0.059-0.25 ND-17 ND-1.4
Chromium....................... 0.10-1.1 ND-340 ND-37
Cobalt......................... <6.0-0.22 ND-213 ND-8.5
Lead........................... <0.37-1.8 ND-340 ND-56.8
Manganese...................... 22-140 ND-15,800 ND-3,200
Mercury........................ <0.15-0.066 ND-1.1 ND-0.2
Nickel......................... 0.71-1.8 ND-540 ND-270
Selenium....................... 0.59-1.4 ND-9.0 ND-4
------------------------------------------------------------------------
Non-Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Chlorine....................... <100 ND-5,400 ND-1,260
Fluorine....................... <100 ND-300 ND-14
Nitrogen....................... <500 200-39,500 42-8,950
Sulfur......................... 170-180 ND-8,700 ND-57,000
------------------------------------------------------------------------
Semivolatile Hazardous Pollutants (ppm--dry basis)
------------------------------------------------------------------------
Acenaphthene................... 600-2,200 ND-50 111
Acenaphthylene................. 17-96 ND-4 4.1
Anthracene..................... 350-2,000 0.4-87 96
Benzo[a]anthracene............. 200-1,500 ND-62 41-1,900
Benzo[a]pyrene................. 62-500 ND-28 0.60-960
Benzo[b]fluoranthene........... 110-960 ND-42 11-540
Benzo[ghi]perylene............. 13-170 ND-9 11.4
Benzo[k]fluoranthene........... 40-320 ND-16 0.6
Chrysene....................... 210-1,300 ND-53 2.2-2,700
Dibenz[a,h]anthracene.......... <21-58 ND-3 4.0
Fluoranthene................... 1,100-8,400 0.6-160 31.6-240
Fluorene....................... 500-2,200 ND-40 3,600
Indeno[1,2,3-cd]pyrene......... 14-170 ND-12 2.3
Naphthalene.................... 660-2,900 ND-38 34.3-4,000
Phenanthrene................... 2,000-12,000 0.9-190 0-116,000
Pyrene......................... 780-5,200 0.2-160 23-178
16-PAH......................... 6,600-38,000 5-921 3,900-54,7
00
Pentachlorophenol.............. <790 \g\ ND-1 --
Biphenyl....................... 137-330 \h\ -- 1,000-1,20
0
----------------------------------------
Total SVOC \c\............. 7,200-39,000 5-922 4,900-54,7
00
------------------------------------------------------------------------
Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm--dry
basis)
------------------------------------------------------------------------
Benzene........................ <3.9 -- ND-75
--
Phenol......................... -- \e\ -- ND-7,700
Styrene........................ <3.9 -- ND-320
Toluene........................ <3.9 -- ND-380
Xylenes........................ <3.9 -- ND-3,100
Cumene......................... -- \e\ -- 6,000-8,00
0
Ethyl benzene.................. <3.9 -- 22-1,270
Formaldehyde................... -- \e\ 1.6-27 --
Hexane......................... -- \e\ -- 50-10,000
----------------------------------------
Total VOC \d\.............. <20 1.6-27 6,072-19,8
10
------------------------------------------------------------------------
\a\ Data provided by Treated Wood Council on September 11, 2015 and
October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for
Comparison, November 29, 2011, available at https://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn
from various literature sources and from data submitted to USEPA,
Office of Air Quality Planning and Standards (OAQPS). SVOC values from
2013 IEc data that will be available in the rule docket.
[[Page 75793]]
\c\ Total SVOC ranges do not represent a simple sum of the minimum and
maximum values for each contaminant. This is because minimum and
maximum concentrations for individual VOCs and SVOCs do not always
come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing,
but this analyte is included in the SVOC group, so is not reflected
here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated
wood, but these are not expected to be present in treated wood
formulation being analyzed based on preservative chemistry and results
from previous CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting
limit, not the method detection limit. Therefore, there are many cases
where the non-detect value may be greater than another test's detected
value due to analysis-specific RLs being different between individual
tests (i.e., differences in tested amount or analyzer calibration
range adjustments). If result is less than the method detection limit
(MDL), the method reporting limit (MRL), which is always greater than
MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on
preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for
treated wood type based on data from previous CTRT testing.
Semi-volatile organic compound (SVOC) levels in creosote-borate
processed railroad ties are not comparable to biomass. Given that
creosote-borate railroad ties are a type of treated wood biomass, and
any unit burning these ties typically burns untreated wood, the EPA
considered two scenarios.
In the first scenario, where a combustion unit is designed to only
burn biomass, EPA compared contaminant levels in creosote-borate to
contaminant levels in biomass. In this scenario, the total SVOC levels
can reach 39,000 ppm, driven by high levels of polycyclic aromatic
hydrocarbons (PAHs).\25\ These compounds are very low levels in clean
wood and biomass, and the contaminants are therefore not comparable in
this instance. In fact, they are present at orders of magnitude higher
than found in clean wood and biomass.
---------------------------------------------------------------------------
\25\ We note that for several SVOCs--cresols, hexachlorobenzene,
and 2,4-dinitrotoluene, which were expected to be in creosote, and
for which information was specifically requested in the February 7,
2013 NHSM final rule (78 FR 9111), the data demonstrate that they
were not detectable, or were present at levels so low to be
considered comparable.
---------------------------------------------------------------------------
In the second scenario, a combustion unit is designed to burn
biomass and fuel oil. As previously mentioned, SVOCs are present in
CTRTs (up to 39,000 ppm) at levels well within the range observed in
fuel oil (up to 54,700 ppm). Therefore, creosote-borate railroad ties
have comparable contaminant levels to other fuels combusted in units
designed to burn both biomass and fuel oil, and as such, meet this
criterion if used in facilities that are designed to burn both biomass
and fuel oil.\26\
---------------------------------------------------------------------------
\26\ As discussed previously, the March 21, 2011 NHSM final rule
(76 FR 15456), noting the presence of hexachlorobenzene and
dinitrotoluene, suggested that creosote-treated lumber include
contaminants at levels that are not comparable to those found in
wood or coal, the fuel that creosote-treated wood would replace, and
would thus be considered solid wastes. The February 2016 final rule
differs in several respects from the conclusions in the March 2011
rule. The February 2016 final rule concludes that CTRTs are a
categorical non-waste when combusted in units designed to burn both
fuel oil and biomass. The March 2011 rule, using 1990 data on
railroad cross ties, was based on contaminant comparisons to coal
and biomass and not fuel oil. As discussed above, when compared to
fuel oil, total SVOC contaminant concentrations (which would include
dinitrotoluene and hexachlorobenzene) in CTRTs would be less that
those found in fuel oil, and in fact, the 2012 data referenced in
this final rule showed non-detects for those two contaminants.
---------------------------------------------------------------------------
As stated in the preamble to the February 7, 2013, NHSM final rule,
combustors may burn NHSMs as a product fuel if they compare
appropriately to any traditional fuel the unit can or does burn (78 FR
9149). Combustion units are often designed to burn multiple traditional
fuels, and some units can and do rely on different fuel types at
different times based on availability of fuel supplies, market
conditions, power demands, and other factors. Under these
circumstances, it is arbitrary to restrict the combustion for energy
recovery of NHSMs based on contaminant comparison to only one
traditional fuel if the unit could burn a second traditional fuel
chosen due to such changes in fuel supplies, market conditions, power
demands or other factors. If a unit can burn both a solid and liquid
fuel, then comparison to either fuel would be appropriate.
In order to make comparisons to multiple traditional fuels, units
must be designed to burn those fuels. If a facility compares
contaminants in an NHSM to a traditional fuel a unit is not designed to
burn, and that material is highly contaminated, a facility would then
be able to burn excessive levels of waste components in the NHSM as a
means of discard. Such NHSMs would be considered wastes regardless of
any fuel value (78 FR 9149).\27\ Accordingly, the ability to burn a
fuel in a combustion unit does have a basic set of requirements, the
most basic of which is the ability to feed the material into the
combustion unit. The unit must also be able to ensure the material is
well-mixed and maintain temperatures within unit specifications.
---------------------------------------------------------------------------
\27\ 78 FR 9149 states ``If a NHSM does not contain contaminants
at levels comparable to or lower than those found in any [emphasis
added] traditional fuel that a combustion unit could burn, then it
follows that discard could be occurring if the NHSM were combusted.
Whether contaminants in these cases would be destroyed or discarded
through releases to the air, they could not be considered a normal
part of a legitimate fuel and the NHSM would be considered a solid
waste when used as a fuel in that combustion unit.''
---------------------------------------------------------------------------
Mixed Treatments-Creosote, Borate, Copper Naphthenate
Mix 1-1-1-1
------------------------------------------------------------------------
Mixed railroad
ties (25%C-25%CB-
25%CuN-25%CuNB) Biomass/ Fuel oil
Contaminant contaminant untreated \b\
levels \a\ \f\ wood \b\
------------------------------------------------------------------------
Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony...................... <1.4 ND-26 ND-15.7
Arsenic....................... <1.5-0.81 ND-298 ND-13
Beryllium..................... <0.70 ND-10 ND-19
Cadmium....................... 0.15-0.38 ND-17 ND-1.4
Chromium...................... 0.15-0.17 ND-340 ND-37
Cobalt........................ <7.0-0.07 ND-213 ND-8.5
Lead.......................... 0.50-0.81 ND-340 ND-56.8
Manganese..................... 110-190 ND-15,800 ND-3,200
Mercury....................... <0.15-0.06 ND-1.1 ND-0.2
Nickel........................ 0.75-1.4 ND-540 ND-270
[[Page 75794]]
Selenium...................... <0.66-0.50 ND-9.0 ND-4
------------------------------------------------------------------------
Non-Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Chlorine...................... <100 ND-5,400 ND-1,260
Fluorine...................... <100 ND-300 ND-14
Nitrogen...................... <500 200-39,500 42-8,950
Sulfur........................ 140-210 ND-8,700 ND-57,000
------------------------------------------------------------------------
Semivolatile Hazardous Pollutants (ppm--dry basis)
------------------------------------------------------------------------
Acenaphthene.................. 500-1,100 ND-50 111
Acenaphthylene................ 12-25 ND-4 4.1
Anthracene.................... 290-1,100 0.4 -87 96
Benzo[a]anthracene............ 140-350 ND-62 41-1,900
Benzo[a]pyrene................ 47-120 ND-28 0.60-960
Benzo[b]fluoranthene.......... 83-210 ND-42 11-540
Benzo[ghi]perylene............ 9.4-23 ND-9 11.4
Benzo[k]fluoranthene.......... 30-64 ND-16 0.6
Chrysene...................... 160-360 ND-53 2.2-2,700
Dibenz[a,h]anthracene......... <7.2-4.7 ND-3 4.0
Fluoranthene.................. 800-2,100 0.6-160 31.6-240
Fluorene...................... 350-1,000 ND-40 3,600
Indeno[1,2,3-cd]pyrene........ 10-28 ND-12 2.3
Naphthalene................... 320-580 ND-38 34.3-4,00
0
Phenanthrene.................. 1,300-3,800 0.9-190 0-116,000
Pyrene........................ 520-1,400 0.2-160 23-178
16-PAH........................ 4,500-12,000 5-921 3,900-54,
700
Pentachlorophenol............. <330 \g\ ND-1 .........
Biphenyl...................... 137-330 \h\ .......... 1,000-1,2
00
-----------------------------------------
Total SVOC \c\............ 4,800-13,000 5-922 4,900-54,
700
------------------------------------------------------------------------
Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm--dry
basis)
------------------------------------------------------------------------
Benzene....................... <1.1 -- ND-75
--
Phenol........................ -- \e\ -- ND-7,700
Styrene....................... <1.1 -- ND-320
Toluene....................... <1.1 -- ND-380
Xylenes....................... <1.1 -- ND-3,100
Cumene........................ -- \e\ -- 6,000-8,0
00
Ethyl benzene................. <1.1 -- 22-1,270
Formaldehyde.................. -- \e\ 1.6-27 --
Hexane........................ -- \e\ -- 50-10,000
Total VOC \d\............. <5.3 1.6-27 6,072-19,
810
------------------------------------------------------------------------
\a\ Data provided by Treated Wood Council on September 11, 2015 and
October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for
Comparison, November 29, 2011, available at https://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn
from various literature sources and from data submitted to USEPA,
Office of Air Quality Planning and Standards (OAQPS). SVOC values from
2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and
maximum values for each contaminant. This is because minimum and
maximum concentrations for individual VOCs and SVOCs do not always
come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing,
but this analyte is included in the SVOC group, so is not reflected
here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated
wood, but these are not expected to be present in treated wood
formulation being analyzed based on preservative chemistry and results
from previous CTRT testing (i.e., not present in CTRT ties).
\f\ Non-detects are indicated by ``<'' preceding the method reporting
limit, not the method detection limit. Therefore, there are many cases
where the non-detect value may be greater than another test's detected
value due to analysis-specific RLs being different between individual
tests (i.e., differences in tested amount or analyzer calibration
range adjustments). If result is less than the method detection limit
(MDL), the method reporting limit (MRL), which is always greater than
MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on
preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for
treated wood type based on data from previous CTRT testing.
[[Page 75795]]
Mix 56-41-1-2
------------------------------------------------------------------------
Mixed railroad
ties (56%C-
41%CB- 1%CuN- Biomass/ Fuel oil
Contaminant 2%CuNB) untreated \b\
contaminant wood \b\
levels \a\ \f\
------------------------------------------------------------------------
Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Antimony...................... <1.4 ND-26 ND-15.7
Arsenic....................... <1.4-0.65 ND-298 ND-13
Beryllium..................... <0.68 ND-10 ND-19
Cadmium....................... 0.08-0.09 ND-17 ND-1.4
Chromium...................... 0.12-0.78 ND-340 ND-37
Cobalt........................ <6.8-0.18 ND-213 ND-8.5
Lead.......................... <0.44-0.93 ND-340 ND-56.8
Manganese..................... 47-77 ND-15,800 ND-3,200
Mercury....................... <0.13-0.03 ND-1.1 ND-0.2
Nickel........................ 0.50-0.99 ND-540 ND-270
Selenium...................... 0.56-0.68 ND-9.0 ND-4
------------------------------------------------------------------------
Non-Metal Elements (ppm--dry basis)
------------------------------------------------------------------------
Chlorine...................... <100 ND-5,400 ND-1,260
Fluorine...................... <100 ND-300 ND-14
Nitrogen...................... <500 200-39,500 42-8,950
Sulfur........................ 230-280 ND-8,700 ND-57,000
------------------------------------------------------------------------
Semivolatile Hazardous Pollutants (ppm--dry basis)
------------------------------------------------------------------------
Acenaphthene.................. 1,500-1,800 ND-50 111
Acenaphthylene................ 31-40 ND-4 4.1
Anthracene.................... 760-1,100 0.4-87 96
Benzo[a]anthracene............ 390-490 ND-62 41-1,900
Benzo[a]pyrene................ 150-200 ND-28 0.60-960
Benzo[b]fluoranthene.......... 230-310 ND-42 11-540
Benzo[ghi]perylene............ 28-56 ND-9 11.4
Benzo[k]fluoranthene.......... 93-130 ND-16 0.6
Chrysene...................... 390-520 ND-53 2.2-2,700
Dibenz[a,h]anthracene......... <28 ND-3 4.0
Fluoranthene.................. 2,000-2,700 0.6-160 31.6-240
Fluorene...................... 1,100-1,300 ND-40 3,600
Indeno[1,2,3-cd]pyrene........ 32-52 ND-12 2.3
Naphthalene................... 890-1,200 ND-38 34.3-4,000
Phenanthrene.................. 3,600-4,500 0.9-190 0-116,000
Pyrene........................ 1,300-1,800 0.2-160 23-178
16-PAH........................ 13,000-16,000 5-921 3,900-54,7
00
Pentachlorophenol............. <630 \g\ ND-1 ..........
Biphenyl...................... 137-330 \h\ ........... 1,000-1,20
0
-----------------------------------------
Total SVOC \c\............ 13,000-17,000 5-922 4,900-54,7
00
------------------------------------------------------------------------
Volatile Organic Compound (VOC) Hazardous Air Pollutants (ppm--dry
basis)
------------------------------------------------------------------------
Benzene....................... <2.3 ........... ND-75
--
Phenol........................ -- \e\ -- ND-7,700
Styrene....................... <2.3 -- ND-320
Toluene....................... <2.3 -- ND-380
Xylenes....................... <2.3 -- ND-3,100
Cumene........................ -- \e\ -- 6,000-8,00
0
Ethyl benzene................. <2.3 -- 22-1,270
Formaldehyde.................. -- \e\ 1.6-27 --
Hexane........................ -- \e\ -- 50-10,000
-----------------------------------------
Total VOC \d\............. <12 1.6-27 6,072-19,8
10
------------------------------------------------------------------------
\a\ Data provided by Treated Wood Council on September 11, 2015 and
October 19, 2015.
\b\ Contaminant Concentrations in Traditional Fuels: Tables for
Comparison, November 29, 2011, available at https://www.epa.gov/epawaste/nonhaz/define/pdfs/nhsm_cont_tf.pdf. Contaminant data drawn
from various literature sources and from data submitted to USEPA,
Office of Air Quality Planning and Standards (OAQPS). SVOC values from
2013 IEc data that will be available in the rule docket.
\c\ Total SVOC ranges do not represent a simple sum of the minimum and
maximum values for each contaminant. This is because minimum and
maximum concentrations for individual VOCs and SVOCs do not always
come from the same sample.
\d\ Naphthalene was the only analyte detected in Oct 2015 VOC testing,
but this analyte is included in the SVOC group, so is not reflected
here.
\e\ Cells with the ``--'' indicate analytes not tested for in treated
wood, but these are not expected to be present in treated wood
formulation being analyzed based on preservative chemistry and results
from previous CTRT testing (i.e., not present in CTRT ties).
[[Page 75796]]
\f\ Non-detects are indicated by ``<'' preceding the method reporting
limit, not the method detection limit. Therefore, there are many cases
where the non-detect value may be greater than another test's detected
value due to analysis-specific RLs being different between individual
tests (i.e., differences in tested amount or analyzer calibration
range adjustments). If result is less than the method detection limit
(MDL), the method reporting limit (MRL), which is always greater than
MDL, was used by the lab.
\g\ Not expected in the treated wood formulation being tested based on
preservative chemistry.
\h\ Not tested for, but presumptive worst-case value is presented for
treated wood type based on data from previous CTRT testing.
In the mixed treated wood scenarios above, as previously discussed,
SVOCs are present (up to 17,000 ppm) at levels well within the range
observed in fuel oil (up to 54,700 ppm). Therefore, mixed railroad ties
with creosote, borate and copper naphthenate have comparable
contaminant levels to other fuels combusted in units designed to burn
both biomass and fuel oil, and as such, meet this criterion if used in
facilities that are designed to burn both biomass and fuel oil.
4. OTRT Sampling and Analysis Data History
The data collection supporting the OTRT non-waste determination has
been based on several rounds of data submittals by TWC followed by EPA
questions and comments on the data provided. We have described the
process of forming the OTRT data set, and all materials provided by TWC
are available in the docket to this rulemaking.
The TWC submitted data on various wood preservative types,
including those referred to as OTRTs, in their April 3, 2013 petition
letter requesting a categorical determination that all preserved wood
types were non-waste fuels. However, the contaminant comparison data
presented in the petition were incomplete and not based on established
analytical data. The EPA response to TWC requested submittal of
analytical data to determine contaminant concentrations in the OTRT
wood.
In November 2013, TWC responded to EPA's request, submitting
laboratory reports on analyses of the various preservative wood types,
including OTRTs. The EPA reviewed the laboratory reports and
techniques, and determined that there were limited data points
available (i.e., one per preservative type) and that the analytical
techniques for several contaminants (chlorine, nitrogen, sulfur, and
fluorine) were not appropriate to provide information on the entire
preserved wood sample as combusted, reflecting only a leachable
component. Furthermore, EPA questioned the representativeness of the
samples being analyzed and the repeatability of the analyses.
In August, 2015, TWC performed additional sampling and analyses to
address these deficiencies in the data. In response to EPA's concerns
on previous data, and as described previously, TWC developed a sampling
program in which 15 OTRT railroad ties of each preservative type were
collected from various geographical areas. These 15 ties were then
separated into three 5 tie groups, then processed into a boiler-fuel
consistency using commercial processing techniques. A sample of each 5-
tie group was then shipped to an independent laboratory for analysis,
thereby producing 3 data points for each preservative type. TWC also
prepared two blends: One with equal portions of creosote, creosote-
borate, copper naphthenate, and copper naphthenate-borate; and the
second a weighted blend of these tie types in proportion to current
usage ratios of each preservative chemistry. These blends samples were
analyzed in triplicate, for a total of 18 samples being analyzed (i.e.,
three from each tie sample group). Two laboratories were used by TWC to
perform the analysis: One laboratory analyzed metals, mercury,
semivolatiles, and heat of combustion; and the other laboratory
analyzed volatiles, chlorine, fluorine, and nitrogen. All methods used
were EPA or ASTM methods, and were appropriate for the materials being
tested. No specific sampling methodology was employed in taking the
samples from the 5-ties group.
The EPA reviewed the 2015 test data, which was provided by TWC on
September 11, 2015, and provided TWC with additional follow-up
questions and clarifications, including the specific sources of the
ties. TWC's response noted the sources of ties for each chemistry and
indicated that the ties generally originated in the southeast, but
there are also ties from Pennsylvania, South Dakota, and Kentucky
represented within the TWC data set. The EPA also noted some exceptions
and flags within the analytical report, such as sample coolers upon
receipt at the lab were outside the required temperature criterion;
surrogate recoveries for semivolatile samples (which represent
extraction efficiency within a sample matrix) were sometimes lower or
higher than those for samples containing creosote-treated wood; and
dilution factors (dilution is used when the sample is higher in
concentration than can be analyzed) for creosote-treated wood samples
were high (up to 800). The laboratory noted these issues in the report
narrative, but concluded that there were no corrective actions
necessary.
Finally, EPA requested further information on these issues noted in
the report narrative, as well as supporting quality assurance
documentation from the laboratories. With respect to surrogate
recoveries and dilutions, the lab indicated that the high dilutions
were required for the creosote-containing matrix to avoid saturation of
the detector instrument.\28\ Also, the shipping cooler temperature
criterion of 4 degrees Celsius, which EPA views as standard practice,
is not wholly applicable in this case due to the nature of the samples.
Since the ties were used and stored after being taken out of service in
ambient atmosphere and are not biologically active, the 4 degree
Celsius receipt condition is not necessary, but was noted in the report
as part of laboratory standard operating procedure.
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\28\ Samples with concentrations exceeding the calibration range
must be diluted to fall within the calibration range. The more a
sample is diluted, the higher the reporting limit. Sample dilution
is required when the concentration of a compound exceeds the amount
that produces a full-scale response. At that point the detector
becomes saturated and fails to respond to additional target
compound(s). Diluting samples to accommodate the high-concentrations
can reduce the concentration of the target analytes to levels where
they can no longer be detected.
---------------------------------------------------------------------------
E. Summary and Request for Comment
EPA believes it has sufficient information to propose to list OTRTs
categorically as non-waste fuels. For units combusting copper-
naphthenate-borate and/or copper naphthenate railroad ties, such
materials could be combusted in units designed to burn biomass or
biomass and fuel oil. For units combusting railroad ties containing
cresosote, including creosote-borate or any mixtures of ties containing
cresosote, borate and copper naphthenate, such materials must be burned
in combustion units that are designed to burn both biomass and fuel
oil. The Agency would consider units to meet this requirement if the
unit combusts fuel oil as part of normal operations and not solely as
part of start up or shut down operations.
Consistent with the approach for CTRTs outlined in the February
2016 rule, the Agency is also proposing that units combusting railroad
ties treated
[[Page 75797]]
with cresosote-borate (or other mixtures of treated railroad ties
containing creosote, borate and copper naphthenate) in units designed
to burn biomass and fuel oil, could also combust those materials in
units at major pulp and paper mills or units at power production
facilities subject to 40 CFR part 63, subpart DDDDD (Boiler MACT) that
combust such ties and had been designed to burn biomass and fuel oil,
but are modified (e.g., oil delivery mechanisms are removed) in order
to use natural gas instead of fuel oil as part of normal operations and
not solely as part of start-up or shut-down operations. These ties may
continue to be combusted as a product fuel only if certain conditions
are met, which are intended to ensure that they are not being
discarded:
Must be combusted in existing (i.e., commenced
construction prior to April 14, 2014) stoker, bubbling bed, fluidized
bed or hybrid suspension grate boilers; and
Must comprise no more than 40 percent of the fuel that is
used on an annual heat input basis.
The standard would be applicable to existing units burning
creosote-borate, and mixtures of creosote, copper naphthenate and
borate treated railroad ties that had been designed to burn fuel oil
and biomass and have been modified to burn natural gas. The standard
will also apply if an existing unit designed to burn fuel oil and
biomass is modified at some point in the future.
The approach addresses only the circumstance where contaminants in
these railroad ties are comparable to or less than the traditional
fuels the unit was originally designed to burn (both fuel oil and
biomass) but that design was modified in order to combust natural gas.
The approach is not a general means to circumvent the contaminant
legitimacy criterion by allowing combustion of any NHSM with elevated
contaminant levels, i.e., levels not comparable to the traditional fuel
the unit is currently designed to burn. The particular facilities in
this case had used these ties and would clearly be in compliance with
the legitimacy criteria if they did not switch to the cleaner natural
gas fuel. Information indicating that these ties are an important part
of the fuel mix due to the consistently lower moisture content and
higher Btu value, as well as the benefits of drier more consistent fuel
to combustion units with significant swings in steam demand, further
suggest that discard is not occurring. Therefore, EPA believes it
appropriate to balance other relevant factors in this categorical non-
waste determination and for the Agency to decide that the switching to
the cleaner natural gas would not render these materials a waste fuel.
This case is no different from the Agency's determination in the
February 2016 rule with respect to CTRTs. This determination is
accepted Agency policy and is appropriately applied to the case of
other treated railway ties in this proceeding. This determination, as
discussed in the February 2016 rule, is based on the historical usage
as a product fuel in stoker, bubbling bed, fluidized bed and hybrid
suspension grate boilers (i.e., boiler designs used to combust used
railroad ties, see 81 FR 6732).
The Agency solicits comments on the proposed non-waste categorical
determination as described previously. The Agency is also specifically
requesting comment on the following:
Whether railroad ties with de minimis levels of creosote
should be allowed to be combusted in biomass only units;
Should a particular de minimus level should be designated
and on what should this level be based;
Whether these OTRTs are combusted in units designed to
burn coal in lieu of, or in addition to biomass and fuel oil, and
whether the contaminant comparisons to meet legitimacy criteria should
include comparisons to coal;
In light of the data and sampling history described above,
whether the quality of data is adequate to support the proposed
determination;
Additional data that should be considered in making the
comparability determinations for OTRTs.
F. Copper and Borates Literature Review and Other EPA Program Review
Summary
Neither copper nor borate are hazardous air pollutants (HAP), and
thus are not contaminants under NHSM standards.29 30 To
determine whether those compounds pose health risk concerns not
directly covered by the NHSM standards, and how those concerns may be
addressed under other Agency programs, we conducted a literature review
on copper and borate and the rules these constituents and their
compounds.
---------------------------------------------------------------------------
\29\ CAA Section 112 requires EPA to promulgate regulations to
control emissions of 187 HAP from sources in source categories
listed by EPA under section 112(c), while CAA section 129 CISWI
standards include numeric emission limitations for the nine
pollutants, plus opacity (as appropriate), that are specified in CAA
section 129(a)(4). For the purpose of NHSM standards, the definition
of contaminants is limited to HAP under CAA 112 and CAA 129.
\30\ We note also under the CAA standards for smaller area
sources, emission limits are not required for copper, borate (or for
HAPs). Standards for area sources focus on tune-ups of the boiler
unit (see 40 CFR 40 CFR part 63, subpart JJJJJJ.
---------------------------------------------------------------------------
Under the Clean Water Act, EPA's Office of Water developed the Lead
and Copper Rule which became effective in 1991 (56 FR 26460). This rule
set a limit of 1.3 ppm copper concentration in 10% of tap action level
for public water. Exceedances of this limit require additional
treatment steps in order to reduce waste corrosivity and prevent
leaching of these metals (including copper) from plumbing and
distribution systems. EPA's Office of Water also issued a fact sheet
for copper under the Clean Water Act section 304(a) titled the Aquatic
Life Ambient Freshwater Quality Criteria.\31\ This fact sheet explains
that copper is an essential nutrient at low concentrations, but is
toxic to aquatic organisms at higher concentrations. The fact sheet
listed the following industries that contribute to manmade discharges
of copper to surface waters: Mining, leather and leather products,
fabricated metal products, and electric equipment. No mention was made
of deposition from combustion sources, such as area source boilers that
may not have robust particulate matter control devices installed on
them. By comparison, there are no National Recommended Aquatic Life
Criteria for boron or borates.
---------------------------------------------------------------------------
\31\ Aquatic life criteria for toxic chemicals are the highest
concentration of specific pollutants or parameters in water that are
not expected to pose a significant risk to the majority of species
in a given environment or a narrative description of the desired
conditions of a water body being ``free from'' certain negative
conditions.
---------------------------------------------------------------------------
EPA also investigated whether there were any concerns that copper
and borate can react to form polychlorinated dibenzodioxin and
dibenzofurans (PCDD/PCDF) during the combustion process. Specific
studies evaluating copper involvement in dioxins and furans formation
in municipal or medical waste incinerator flue gas have been
conducted.\32\ While the exact mechanism and effects of other
combustion parameters on PCDD and PCDF formation are still unknown,
increased copper chloride (CuCl) and/or cupric chloride
(CuCl2) on fly ash particles has been shown to increase
concentrations of PCDD and PCDF in fly ash. Various researchers
conclude that CuCl and/or CuCl2 are serving either roles as
catalysts in dioxin formation or as chlorine sources for subsequent
PCDD/PCDF formation reactions (i.e., the CuCl and/or CuCl2
serve as dechlorination/chlorination catalysts).
[[Page 75798]]
Copper emissions from fly ash are reduced with good particulate matter
controls. A high performance fabric filter may be the best control
device, although some portion of fine particulate matter may pass
through. Cyclone separators and electro-static precipitators have not
been shown to be effective in controlling these emissions, and these
types of controls may be more prevalent amongst smaller, area source
boilers. Overall, results from many studies indicate that most of the
copper ends up in the bottom ash.
---------------------------------------------------------------------------
\32\ See technical memorandum on copper-related programs and
emission studies available in the docket to this rulemaking.
---------------------------------------------------------------------------
Generally, borates have a low toxicity, and should not be a concern
from a health risk perspective. As indicated previously, neither boron
nor borates are listed as HAP under CAA section 112, nor are they
considered to be criteria air pollutants subject to any emissions
limitations. However, elemental boron has been identified by EPA in the
coal combustion residuals (CCR) risk analysis \33\ to present some
potential risks for ecological receptors. As a result of this risk, and
boron's ability to move through the subsurface,\34\ boron has been
included as a monitored constituent in CCR monitoring provisions for
coal ash impoundments.
---------------------------------------------------------------------------
\33\ Human and Ecological Risk Assessment of Coal Combustion
Residuals, EPA, December 2014.
\34\ See 80 FR 21302, April 17, 2015.
---------------------------------------------------------------------------
Copper has some acute toxicity, but these exposures appear to be
the result of direct drinking water or cooking-related intake. We
anticipate the only routes that copper releases to the environment
could result from burning copper naphthenate treated ties would be
stormwater runoff from the ties and deposition from boiler emissions.
The amount of copper remaining in the tie after its useful life,
however, may be greatly reduced from the original content, and
facilities manage the shredded tie material in covered areas to prevent
significant moisture swings, therefore, we do not expect impacts from
copper-containing runoff. Due to the high vaporization temperature,
copper will exist in solid phase after it leaves the furnace, and would
therefore be controlled in the air pollution control device operated to
control particulate emissions from the boiler.
EPA solicits comment and seeks any additional information (e.g.
preservative leaching rates) that would help further inform the
determinations outlined above regarding management and combustion of
borate and copper treated railroad ties and impacts to surface water,
drinking water or air not addressed under the NHSM standards.
IV. Effect of This Proposal on Other Programs
Beyond expanding the list of NHSMs that categorically qualify as
non-waste fuels, this rule does not change the effect of the NHSM
regulations on other programs as described in the March 21, 2011 NHSM
final rule, as amended on February 7, 2013 (78 FR 9138) and February 8,
2016 (81 FR 6688). Refer to section VIII of the preamble to the March
21, 2011 NHSM final rule \35\ for the discussion on the effect of the
NHSM rule on other programs.
---------------------------------------------------------------------------
\35\ 76 FR 15456, March 21, 2011 (page 15545).
---------------------------------------------------------------------------
V. State Authority
A. Relationship to State Programs
This proposal does not change the relationship to state programs as
described in the March 21, 2011 NHSM final rule. Refer to section IX of
the preamble to the March 21, 2011 NHSM final rule \36\ for the
discussion on state authority including, ``Applicability of State Solid
Waste Definitions and Beneficial Use Determinations'' and
``Clarifications on the Relationship to State Programs.'' The Agency,
however, would like to reiterate that this proposed rule (like the
March 21, 2011 and the February 7, 2013 final rules) is not intended to
interfere with a state's program authority over the general management
of solid waste.
---------------------------------------------------------------------------
\36\ 76 FR 15456, March 21, 2011 (page 15546).
---------------------------------------------------------------------------
B. State Adoption of the Rulemaking
No federal approval procedures for state adoption of this proposed
rule are included in this rulemaking action under RCRA subtitle D.
Although the EPA does promulgate criteria for solid waste landfills and
approves state municipal solid waste landfill permitting programs, RCRA
does not provide the EPA with authority to approve state programs
beyond those landfill permitting programs. While states are not
required to adopt regulations promulgated under RCRA subtitle D, some
states incorporate federal regulations by reference or have specific
state statutory requirements that their state program can be no more
stringent than the federal regulations. In those cases, the EPA
anticipates that, if required by state law, the changes being proposed
in this document, if finalized, will be incorporated (or possibly
adopted by authorized state air programs) consistent with the state's
laws and administrative procedures.
VI. Cost and Benefits
The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. This rulemaking, as
proposed, establishes a categorical non-waste listing for selected
NHSMs under RCRA. This categorical non-waste determination allows these
materials to be combusted as a product fuel in units, subject to the
CAA section 112 emission standards, without being subject to a detailed
case-by-case analysis of the material(s) by individual combustion
facilities, provided they meet the conditions of the categorical
listing. The proposal establishes no direct standards or requirements
relative to how these materials are managed or combusted. As a result,
this action alone does not directly invoke any costs \37\ or benefits.
Rather, this RCRA proposal is being developed to simplify the rules for
identifying which NHSMs are not solid wastes and to provide additional
clarity and direction for owners or operators of combustion facilities.
In this regard, this proposal provides a procedural benefit to the
regulated community, as well as the states through the establishment of
regulatory clarity and enhanced materials management certainty.
---------------------------------------------------------------------------
\37\ Excluding minor administrative burden/cost (e.g., rule
familiarization).
---------------------------------------------------------------------------
Because this RCRA action is definitional only, any costs or
benefits indirectly associated with this action would not occur without
the corresponding implementation of the relevant CAA rules. However, in
an effort to ensure rulemaking transparency, the EPA prepared an
assessment in support of this action that examines the scope and
direction of these indirect impacts, for both costs and benefits.\38\
This document is available in the docket for review and comment.
Finally, we recognize that this action would indirectly affect various
materials management programs and policies, and we are sensitive to
these concerns. The Agency encourages comment on these effects.
---------------------------------------------------------------------------
\38\ U.S. EPA, Office of Resource Conservation and Recovery,
``Assessment of the Potential Costs, Benefits, and Other Impacts for
the Proposed Rule: Categorical Non-Waste Determination for Selected
Non Hazardous Secondary Materials (NHSMs): Creosote-Borate Treated
Railroad Ties, Copper Naphthenate Treated Railroad Ties, and Copper
Naphthenate-Borate Treated Railroad Ties'' EPA Docket Number: EPA-
HQ-OLEM-2016-0248.
---------------------------------------------------------------------------
The assessment document, as mentioned previously, finds that
facilities operating under CAA section 129 standards that are currently
burning CTRTs, and no other solid wastes, and who had planned to
continue burning these materials, may experience cost savings
associated with the potential modification and operational adjustments
of their affected units. In this case, the unit-level cost savings are
[[Page 75799]]
estimated, on average, to be approximately $266,000 per year. In
addition, the increased regulatory clarity and certainty associated
with this action may stimulate increased product fuel use for one or
more of these NHSMs, potentially resulting in upstream life cycle
benefits associated with reduced extraction of selected virgin
materials.
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action. The Office of
Management and Budget (OMB) waived review. The EPA prepared an economic
analysis of the potential costs and benefits associated with this
action. This analysis, ``Assessment of the Potential Costs, Benefits,
and Other Impacts for the Proposed Rule--Categorical Non-Waste
Determination for Selected Non-Hazardous Secondary Materials (NHSMs):
Creosote-Borate Treated Railroad Ties, Copper Naphthenate Treated
Railroad Ties, and Copper Naphthenate-Borate Treated Railroad Ties'',
is available in the docket. Interested persons are encouraged to read
and comment on this document.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA as this action only proposes to add three new categorical
non-waste fuels to the NHSM regulations. OMB has previously approved
the information collection activities contained in the existing
regulations and has assigned OMB control number 2050-0205.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. The proposed addition of three NHSMs to
the list of categorical non-waste fuels is expected to indirectly
reduce materials management costs. In addition, this action will reduce
regulatory uncertainty associated with these materials and help
increase management efficiency. We have therefore concluded that this
action will relieve regulatory burden for all directly regulated small
entities. We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act (UMRA)
This action contains no Federal mandates as described in UMRA, 2
U.S.C. 1531-1538, and does not significantly or uniquely affect small
governments. UMRA generally excludes from the definition of ``Federal
intergovernmental mandate'' duties that arise from participation in a
voluntary Federal program. Affected entities are not required to manage
the proposed additional NHSMs as non-waste fuels. As a result, this
action may be considered voluntary under UMRA. Therefore, this action
is not subject to the requirements of section 202 or 205 of the UMRA
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. In addition, this
proposal will not impose direct compliance costs on small governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will neither impose substantial direct
compliance costs on tribal governments, nor preempt Tribal law.
Potential aspects associated with the categorical non-waste fuel
determinations under this proposed rule may invoke minor indirect
tribal implications to the extent that entities generating or
consolidating these NHSMs on tribal lands could be affected. However,
any impacts are expected to be negligible. Thus, Executive Order 13175
does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in the Executive Order 12866,
and because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. Based on the following discussion, the Agency found that
populations of children near potentially affected boilers are either
not significantly greater than national averages, or in the case of
landfills, may potentially result in reduced discharges near such
populations.
The proposed rule, in conjunction with the corresponding CAA rules,
may indirectly stimulate the increased fuel use of one of more the
three NHSMs by providing enhanced regulatory clarity and certainty.
This increased fuel use may result in the diversion of a certain
quantity of these NHSMs away from current baseline management
practices. Any corresponding disproportionate impacts among children
would depend upon whether children make up a disproportionate share of
the population living near the affected units. Therefore, to assess the
potential an indirect disproportionate effect on children, we conducted
a demographic analysis for this population group surrounding CAA
section 112 major source boilers, municipal solid waste landfills, and
construction and demolition (C&D) landfills for the Major and Area
Source Boilers rules and the CISWI rule.\39\ We assessed the share of
the population under the age of 18 living within a three-mile
(approximately five kilometers) radius of these facilities. Three miles
has been used often in other demographic analyses focused on areas
around industrial sources.\40\
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\39\ The extremely large number of area source boilers and the
absence of site-specific coordinates prevented us from assessing the
demographics of populations located near these sources. In addition,
we did not assess child population percentages surrounding cement
kilns that may use some out-of-service railroad crossties for their
thermal value.
\40\ The following publications which have provided demographic
information using a 3-mile or 5-kilometer circle around a facility:
* U.S. GAO (Government Accountability Office). Demographics of
People Living Near Waste Facilities. Washington DC: Government
Printing Office 1995.
* Mohai P, Saha R. ``Reassessing Racial and Socio-economic
Disparities in Environmental Justice Research''. Demography.
2006;43(2): 383-399.
* Mennis, Jeremy ``Using Geographic Information Systems to
Create and Analyze Statistical Surfaces of Population and Risk for
Environmental Justice Analysis'' Social Science Quarterly, 2002,
83(1):281-297.
* Bullard RD, Mohai P, Wright B, Saha R et al. Toxic Wastes and
Race at Twenty, 1987-2007, March 2007. 5 CICWI Rule and Major Source
Boilers Rule.
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[[Page 75800]]
For major source boilers, our findings indicate that the percentage
of the population in these areas under age 18 years is generally the
same as the national average.\41\ In addition, while the fuel source
and corresponding emission mix for some of these boilers may change as
an indirect response to this rule, emissions from these sources would
remain subject to the protective CAA section 112 standards. For
municipal solid waste and C&D landfills, we do not have demographic
results specific to children. However, using the population below the
poverty level as a rough surrogate for children, we found that within
three miles of facilities that may experience diversions of one or more
of these NHSMs, low-income populations, as a percent of the total
population, are disproportionately high relative to the national
average. Thus, to the extent that these NHSMs are diverted away from
municipal solid waste or C&D landfills, any landfill-related emissions,
discharges, or other negative activity potentially affecting low-income
(children) populations living near these units are likely to be
reduced. Finally, transportation emissions associated with the
diversion of some of this material away from landfills to boilers are
likely to be generally unchanged, while these emissions are likely to
be reduced for on-site generators of paper recycling residuals that
would reduce off-site shipments.
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\41\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
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H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that it is not feasible to determine whether this
action has disproportionately high and adverse effects on minority
populations, low-income populations, and/or indigenous peoples as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
However, the overall level of emissions, or the emissions mix from
affected boilers are not expected to change significantly because the
three NHSMs proposed to be categorically listed as non-waste fuels are
generally comparable to the types of fuels that these combustors would
otherwise burn. Furthermore, these units remain subject to the
protective standards established under CAA section 112.
Our environmental justice demographics assessment conducted for the
prior rulemaking \42\ remains relevant to this action. This assessment
reviewed the distributions of minority and low-income groups living
near potentially affected sources using U.S. Census blocks. A three-
mile radius (approximately five kilometers) was examined in order to
determine the demographic composition (e.g., race, income, etc.) of
these blocks for comparison to the corresponding national compositions.
Findings from this analysis indicated that populations living within
three miles of major source boilers represent areas with minority and
low-income populations that are higher than the national averages. In
these areas, the minority share \43\ of the population was 33 percent,
compared to the national average of 25 percent. For these same areas,
the percent of the population below the poverty line (16 percent) was
higher than the national average (13 percent).
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\42\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
\43\ This figure is for overall population minus white
population and does not include the Census group defined as ``White
Hispanic.''
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In addition to the demographics assessment described previously, we
also considered the potential for non-combustion environmental justice
concerns related to the potential incremental increase in NHSMs
diversions from current baseline management practices. These may
include the following:
Reduced upstream emissions resulting from the reduced
production of virgin fuel: Any reduced upstream emissions that may
indirectly occur in response to reduced virgin fuel mining or
extraction may result in a human health and/or environmental benefit to
minority and low-income populations living near these projects.
Alternative materials transport patterns: Transportation
emissions associated with NHSMs diverted from landfills to boilers are
likely to be similar, except for on-site paper recycling residuals,
where the potential for less off-site transport to landfills may result
in reduced truck traffic and emissions where such transport patterns
may pass through minority or low-income communities.
Change in emissions from baseline management units: The
diversion of some of these NHSMs away from disposal in landfills may
result in a marginal decrease in activity at these facilities. This may
include non-adverse impacts, such as marginally reduced emissions,
odors, groundwater and surface water impacts, noise pollution, and
reduced maintenance cost to local infrastructure. Because municipal
solid waste and C&D landfills were found to be located in areas where
minority and low-income populations are disproportionately high
relative to the national average, any reduction in activity and
emissions around these facilities is likely to benefit the citizens
living near these facilities.
Finally, this rule, in conjunction with the corresponding CAA
rules, may help accelerate the abatement of any existing stockpiles of
the targeted NHSMs. To the extent that these stockpiles may represent
negative human health or environmental implications, minority and/or
low-income populations that live near such stockpiles may experience
marginal health or environmental improvements. Aesthetics may also be
improved in such areas.
As previously discussed, this RCRA proposed action alone does not
directly require any change in the management of these materials. Thus,
any potential materials management changes stimulated by this action,
and corresponding impacts to minority and low-income communities, are
considered to be indirect impacts, and would only occur in conjunction
with the corresponding CAA rules.
List of Subjects in 40 CFR part 241
Environmental protection, Air pollution control, Waste treatment
and disposal.
[[Page 75801]]
Dated: October 19, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the preamble, EPA proposes to amend
40,CFR chapter I as set forth below:
PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION
UNITS
0
1. The authority citation for Part 241 continues to read as follows:
Authority: 42 U.S.C. 6903, 6912, 7429.
0
2. Section 241.2 is amended by adding in alphabetical order the
definitions ``Copper naphthenate treated railroad ties'', ``Copper
naphthenate-borate treated railroad ties'' and ``Creosote-borate
treated railroad ties'' to read as follows:
Sec. 241.2 Definitions.
* * * * *
Copper naphthenate treated railroad ties means railroad ties
treated with copper naphthenate made from naphthenic acid and copper
salt.
Copper naphthenate-borate treated railroad ties means railroad ties
treated with copper naphthenate and borate made from disodium
octaborate tetrahydrate.
Creosote-borate treated railroad ties means railroad ties treated
with a wood preservative containing creosols and phenols and made from
coal tar oil and borate made from disodium octaborate tetrahydrate.
* * * * *
0
3. Section 241.4 is amended by adding paragraphs (a)(8) through (10) to
read as follows:
Sec. 241.4 Non-waste Determinations for Specific Non-Hazardous
Secondary Materials When Used as a Fuel.
* * * * *
(a) * * *
(8) Creosote-borate treated railroad ties, and mixtures of
creosote, borate and copper naphthenate treated railroad ties that are
processed (which must include at a minimum, metal removal and shredding
or grinding) and then combusted in the following types of units:
(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 that combust creosote-borate
treated railroad ties and mixed creosote, borate and copper naphthenate
treated railroad 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.
The creosote-borate and mixed creosote, borate and copper naphthenate
treated railroad ties may continue to be combusted as product fuel
under this subparagraph only if the following conditions are met, which
are intended to ensure that such railroad ties are not being discarded:
(A) Creosote-borate and mixed creosote, borate and copper
naphthenate treated railroad ties must be burned in existing (i.e.,
commenced construction prior to April 14, 2014) stoker, bubbling bed,
fluidized bed, or hybrid suspension grate boilers; and
(B) Creosote-borate and mixed creosote, borate and copper
naphthenate treated railroad ties can comprise no more than 40 percent
of the fuel that is used on an annual heat input basis.
(9) Copper naphthenate treated railroad ties that are processed
(which must include at a minimum, metal removal and shredding or
grinding) and then combusted in units designed to burn biomass or units
designed to burn both biomass and fuel oil.
(10) Copper naphthenate-borate treated railroad ties that are
processed (which must include at a minimum, metal removal and shredding
or grinding) and then combusted in units designed to burn biomass or
units designed to burn both biomass and fuel oil.
* * * * *
[FR Doc. 2016-26381 Filed 10-31-16; 8:45 am]
BILLING CODE 6560-50-P
