Petition To Revise the Non-Hazardous Secondary Material Standard: Proposed Response, 4536-4546 [2022-01074]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 87, Number 19 (Friday, January 28, 2022)]
[Proposed Rules]
[Pages 4536-4546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01074]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

[EPA-HQ-OLEM-2020-0550; 7815-02-OLEM]
RIN 2050-AH13


Petition To Revise the Non-Hazardous Secondary Material Standard: 
Proposed Response

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of tentative response to petition for rulemaking.

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[[Page 4537]]

SUMMARY: The Environmental Protection Agency (EPA or ``the Agency'') is 
responding to a rulemaking petition from American Forest and Paper 
Association et al. (``the petition'') requesting amendments to the Non-
Hazardous Secondary Materials (NHSM) regulations, initially promulgated 
on March 21, 2011, and amended on February 7, 2013, February 8, 2016, 
and February 7, 2018 under the Resource Conservation and Recovery Act 
(RCRA). The NHSM regulations establish standards and procedures for 
identifying whether non-hazardous secondary materials are solid wastes 
when legitimately used as fuels or ingredients in combustion units. The 
petition requested the following amendments: Change the legitimacy 
criterion for comparison of contaminants in the NHSM to the traditional 
fuel the unit is designed to burn from mandatory to ``should 
consider''; remove associated designed to burn and other limitations 
for creosote-treated railroad ties (CTRT); and revise the definition of 
``paper recycling residuals'' (PRR) to remove the limit on non-fiber 
materials in PRR that can be burned as a non-waste fuel. The EPA is 
proposing to deny the requested amendments. In addition, as an 
alternative to granting the third request, EPA is proposing a change to 
the definition of PRR to set a numerical limit on the amount of non-
fiber materials that may be included for the residuals to be considered 
a non-waste fuel.

DATES: Comments must be received on or before March 29, 2022.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2020-0550, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, OLEM Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
     Hand Delivery or Courier (by scheduled appointment only): 
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution 
Avenue NW, Washington, DC 20004. The Docket Center's hours of 
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal 
Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted by the Agency 
without change to https://www.regulations.gov/, including any personal 
information provided. For detailed instructions on sending comments and 
additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document. Out of an abundance of caution for members of the public 
and our staff, the EPA Docket Center and Reading Room are open to the 
public by appointment only to reduce the risk of transmitting COVID-19. 
Our Docket Center staff also continues to provide remote customer 
service via email, phone, and webform. Hand deliveries and couriers may 
be received by scheduled appointment only. For further information on 
EPA Docket Center services and the current status, please visit us 
online at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Tracy Atagi, Office of Resource 
Conservation and Recovery, Materials Recovery and Waste Management 
Division, MC 5303P, Environmental Protection Agency, 1200 Pennsylvania 
Ave. NW, Washington, DC 20460; telephone number: 202-566-0511; email 
address: [email protected].

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

I. General Information
    A. List of Abbreviations and Acronyms Used in This Proposed Rule
    B. What is the statutory authority for this proposed rule?
    C. Does this proposed rule apply to me?
II. Public Participation
III. Background
    A. History of NHSM Rulemaking
    B. Summary of the Petitioners' Requested Changes
    C. Background on Creosote-Treated Railroad Ties
IV. EPA Response to Petitioners' Requested Changes
V. Effect of This Proposal on Other Programs
VI. State Authority
    A. Relationship to State Programs
    B. State Adoption of the Rulemaking
VII. Costs and Benefits
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

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

Btu British thermal unit
CAA Clean Air Act
CBI Confidential business information
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incinerator
CTRT Creosote-treated railroad ties
EPA U.S. Environmental Protection Agency
FR Federal Register
HAP Hazardous air pollutants
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
PRR Paper Recycling Residuals
RCRA Resource Conservation and Recovery Act
RIN Regulatory information number
SBA Small Business Administration
SO2 Sulfur dioxide
SVOC Semi-volatile organic compound
U.S.C. United States Code
VOC Volatile organic compound

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

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

[[Page 4538]]

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 Categorical Non-Waste Fuels
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        Primary industry category or subcategory             NAICS \b\
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Utilities...............................................             221
Manufacturing...........................................      31, 32, 33
Wood Product Manufacturing..............................             321
Sawmills................................................          321113
Wood Preservation (includes railroad tie creosote                 321114
 treating)..............................................
Paper Manufacturing.....................................             322
Cement Manufacturing....................................           32731
Rail Transportation (includes line haul and short line).             482
Scenic and Sightseeing Transportation, Land (Includes:            487110
 Railroad, scenic and sightseeing)......................
Port and Harbor Operations (Used railroad ties).........          488310
Landscaping Services....................................          561730
Solid Waste Collection..................................          562111
Solid Waste Landfill....................................          562212
Solid Waste Combustors and Incinerators.................          562213
Marinas.................................................          713930
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\a\ Includes: Major Source Boilers, Area Source Boilers, and Solid Waste
  Incinerators.
\b\ NAICS--North American Industrial Classification System.

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

II. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2020-
0550, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit to 
EPA's docket at https://www.regulations.gov 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.
    Due to public health concerns related to COVID-19, the EPA Docket 
Center and Reading Room are open to the public by appointment only. Our 
Docket Center staff also continues to provide remote customer service 
via email, phone, and webform. Hand deliveries or couriers will be 
received by scheduled appointment only. For further information and 
updates on EPA Docket Center services, please visit us online at 
https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

III. Background

A. History of the NHSM Rulemakings

    The NHSM regulations establish standards and procedures for 
identifying when non-hazardous secondary materials burned in combustion 
units are solid wastes. The RCRA statute defines ``solid waste'' as 
``any garbage, refuse, sludge from a waste treatment plant, water 
supply treatment plant, or air pollution control facility and other 
discarded material . . . resulting from industrial, commercial, mining, 
and agricultural operations, and from community activities.'' (RCRA 
section 1004(27) (emphasis added)). The key concept is that of 
``discard'' and, in fact, this definition hinges on the meaning of the 
phrase ``other discarded material,'' since this term encompasses all 
other examples provided in the definition.
    The meaning of ``solid waste,'' as defined under RCRA, is of 
particular importance as it relates to section 129 of the CAA. If a 
material or any portion thereof is a solid waste under RCRA, a 
combustion unit burning it is required to meet the CAA section 129 
emission standards for solid waste incineration units. If the material 
is not a solid waste, combustion units are required to meet the CAA 
section 112 emission standards. CAA section 129 further states that the 
term ``solid waste'' shall have the meaning ``established by the 
Administrator pursuant to the Solid Waste Disposal Act.'' Id at section 
7429(g)(6). The Solid Waste Disposal Act, as amended, is commonly 
referred to as RCRA.
    The Agency first solicited comments on how the RCRA definition of 
solid waste should apply to NHSMs when used as fuels or ingredients in 
combustion units in an advanced notice of proposed rulemaking (ANPRM), 
which was published in the Federal Register on January 2, 2009 (74 FR 
41). The EPA then published an NHSM proposed rule on June 4, 2010 (75 
FR 31844), which the EPA finalized on March 21, 2011 (76 FR 15456).
    In the March 21, 2011 rule, the EPA finalized standards and 
procedures to be used to identify whether NHSMs are

[[Page 4539]]

solid wastes when used as fuels or ingredients in combustion units. 
``Secondary material'' was defined for the purposes of that rulemaking 
as any material that is not the primary product of a manufacturing or 
commercial process, and can include post-consumer material, off-
specification commercial chemical products or manufacturing chemical 
intermediates, post-industrial material, and scrap (codified at 40 CFR 
241.2). ``Non-hazardous secondary material'' is a secondary material 
that, when discarded, would not be identified as a hazardous waste 
under 40 CFR part 261 (codified at 40 CFR 241.2). Traditional fuels, 
including historically managed traditional fuels (e.g., coal, oil, 
natural gas) and ``alternative'' traditional fuels (e.g., clean 
cellulosic biomass) are not secondary materials and thus, are not solid 
wastes under the rule unless discarded (codified at 40 CFR 241.2).
    A key concept included in the March 21, 2011 rule is that NHSMs 
used as non-waste fuels in combustion units 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. To 
meet the legitimacy criteria, the NHSM must be managed as a valuable 
commodity, have a meaningful heating value and be used as a fuel in a 
combustion unit that recovers energy, and contain contaminants or 
groups of contaminants at concentration levels comparable to (or lower 
than) those in traditional fuels which the combustion unit is designed 
to burn.
    Based on these criteria, the March 21, 2011 rule identified the 
following NHSMs as not being solid wastes:
     The NHSM that meets the legitimacy criteria and is used as 
a fuel and that remains within the control of the generator (whether at 
the site of generation or another site the generator has control over) 
(40 CFR 241.3(b)(1));
     The NHSM that meets the legitimacy criteria and is used as 
an ingredient in a manufacturing process (whether by the generator or 
outside the control of the generator (40 CFR 241.3(b)(3));
     Discarded NHSM that has been sufficiently processed to 
produce a fuel or ingredient that meets the legitimacy criteria (40 CFR 
241.3(b)(4)); or
     On a case-by-case petition process, NHSM that has been 
determined to have been handled outside the control of the generator, 
has not been discarded and is indistinguishable in all relevant aspects 
from a fuel product, and meets the legitimacy criteria (40 CFR 
241.3(c)).
    In 2013, the EPA amended the NHSM rules to ``clarify several 
provisions in order to implement the non-hazardous secondary materials 
rule as the agency originally intended.'' \1\ While the 2013 final rule 
did not contain any provisions specific to creosote-treated wood or 
CTRT, the EPA noted that AF&PA and the American Wood Council submitted 
a letter with supporting information on December 6, 2012, seeking a 
categorical non-waste determination for CTRT combusted in any unit.\2\ 
The EPA discussed at the time that the Agency was reviewing the 
petition and also asked petitioners to provide additional information 
regarding CTRT, including industry sectors that burn CTRT; types of 
combustion units; types of traditional fuels that could otherwise be 
burned in these combustion units; extent of use of CTRT in non-
industrial boilers; and laboratory analyses of CTRT for the 
contaminants, as defined under 40 CFR 241.2, known to be significant 
components of creosote, such as polycyclic aromatic hydrocarbons. The 
EPA also provided notice that, assuming the additional information 
supported the petitioners' representations, the Agency intended to 
propose a categorical non-waste fuel determination for CTRT.
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    \1\ Commercial and Industrial Solid Waste Incineration Units: 
Reconsideration and Final Amendments; Non-Hazardous Secondary 
Materials That Are Solid Waste; Final Rule. 78 FR 9112, February 7, 
2013.
    \2\ 78 FR 9173, February 7, 2013.
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    On February 8, 2016 (81 FR 6687), the EPA published final NHSM rule 
amendments that provided a categorical non-waste fuel determination for 
CTRT that undergo, at a minimum, metal removal and shredding or 
grinding and are used as fuel in units designed to burn both biomass 
and fuel oil as part of normal operations and not solely as part of 
start-up or shut-down operations.\3\ In addition, the final rule 
included a special provision for units at major source pulp and paper 
mills or power producers subject to 40 CFR part 63, subpart DDDDD that 
were designed to burn biomass and fuel oil as part of normal 
operations, but are modified (e.g., oil delivery mechanisms are 
removed) in order to use natural gas instead of fuel oil. These units 
may continue to combust the CTRT as product fuel if the following 
conditions are met: (A) CTRT must be burned in an existing (i.e., 
commenced construction prior to April 14, 2014) stoker, bubbling bed, 
fluidized bed, or hybrid suspension grate boilers; and (B) CTRT can 
comprise no more than 40 percent of the fuel that is used on an annual 
heat input basis.
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    \3\ 81 FR 6723, February 8, 2016.
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    A similar categorical non-waste fuel determination approach was 
applied to creosote-borate and mixtures of creosote and certain non-
creosote treated railroad ties (i.e., other treated railroad ties, or 
OTRT) in the February 7, 2018 NHSM rule amendments.\4\
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    \4\ 83 FR 5318-19, February 7, 2018.
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B. Summary of the Petitioners' Requested Changes

    The Agency is responding to a rulemaking petition (``the 
petition'') requesting amendments to the NHSM regulations, initially 
promulgated on March 21, 2011, and amended on February 7, 2013, 
February 8, 2016, and February 7, 2018 under the Resource Conservation 
and Recovery Act (RCRA).
    The petition was received on December 7, 2018; petitioners included 
American Forest and Paper Association (AF&PA), Association of American 
Railroads (AAR), Treated Wood Council (TWC), American Short Line and 
Regional Railroad Association (ASLRRA), and American Wood Council 
(AWC). The petition requested the following amendments to the NHSM 
regulations: (1) Change from mandatory to ``should consider'' the 
legitimacy criterion for comparison of contaminants in the NHSM to the 
traditional fuel the unit is designed to burn found at 40 CFR 
241.3(d)(1)(iii); (2) remove associated designed to burn and other 
limitations for creosote-treated railroad ties found at 40 CFR 
241.4(a)(7)-(a)(10); and (3) revise the definition of paper recycling 
residuals (PRR) that can be burned as non-waste found at 40 CFR 241.2 
to remove the limit on non-fiber materials.

C. Background on Creosote-Treated Railroad Ties (CTRT)

    One outcome that the petitioners seek to achieve with their 
requested regulatory changes is to expand the national capacity for 
burning CTRT as non-waste fuel. Creosote was introduced as a wood 
preservative in the late 1800s to prolong the life of railroad ties. 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. Approximately 17 million railroad ties are removed from 
service each year in the U.S. After railroad ties are removed from 
service, they are transferred for sorting/processing. Based on 
information provided by industry,\5\ the processing of the railroad 
ties into fuel

[[Page 4540]]

by the reclamation/processing companies involves several steps. Metals 
(spikes, nails, plates, etc.) are removed using a magnet, once or 
several times during the process. The railroad ties 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. This 
step occurs in several phases, including primary and secondary 
grinding, or in a single phase. Once the railroad ties are ground to a 
specific size, additional metal is removed if present and there is 
further screening based on the particular needs of the end-use 
combustor. Depending on the configuration of the facility and 
equipment, screening occurs concurrently with grinding or at a 
subsequent stage. Throughout the process, a non-toxic surfactant may be 
applied to the railroad ties being processed to minimize dust. Once the 
processing of CTRT is complete, the CTRT are sold directly to the end-
use combustor for energy recovery.
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    \5\ AFPA Rail Tie Petition Request December 6, 2012, EPA-HQ-
RCRA-2013-0110-0002.
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    Use of CTRT as an alternative fuel may have the potential to 
produce various environmental benefits including reducing fossil fuel 
use,\6\ increasing the heat value of the fuel mix and improving the 
combustion temperature and conditions.\7\ Additionally, combusting CTRT 
provides an alternative to landfill disposal, which studies have shown 
may reduce methane emissions from anaerobic decay and extend landfill 
capacity. Even when accounting for energy recovery of the methane 
generated from landfill disposal of CTRT, the fuel offset from 
combusting CTRT for energy recovery is estimated to be 20 times greater 
than energy recovery from landfill gas.\8\
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    \6\ While creosote is a coal derivative, because the creosote 
has already been used once as a preservative on railway ties, 
burning those ties still may reduce the need for burning of fossil 
fuels.
    \7\ In addition, one study indicates that co-firing CTRT with 
coal at 10% the annual heating value may reduce emissions of certain 
pollutants. However, that study is very limited and cannot be 
extrapolated to the use of CTRT as a fuel in general. Little is 
known about impacts of variability in CTRT or coal composition and 
how these would impact emissions for any given combustor design or 
control device configuration. For more information, see Creosote 
Treated Railroad Ties and Coal Co-firing Technical Support Document, 
available in the docket.
    \8\ Bolin and Smith, ``Creosote-Treated Ties End-of-Life 
Evaluation'', p. 9.
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    However, as noted in the 2011 NHSM final rule, creosote is produced 
from the process of distillation of coal tar for the purpose of 
creating a wood preservative, not a fuel, and creosote has different 
chemical concentrations than coal. In particular, CTRT has elevated 
levels of hexachlorobenzene, a CAA 112 Hazardous Air Pollutant (HAP), 
as well as other HAPs, when compared to coal. (76 FR 15483, March 21, 
2011). Thus the 2016 NHSM non-waste determination is limited to CTRTs 
that are used as fuel in specific types of units where CTRTs have 
contaminants at levels comparable to or lower than the traditional fuel 
that combustion units are designed to burn.
    In addition, the EPA has also recently become aware of reported 
problems associated with processing CTRT for use as fuel. Grinding CTRT 
can create dust that may blow onto neighboring properties. Processing 
CTRT into fuel can also be associated with other, more-generalized 
issues like excess noise from grinding, loud night-time operations, and 
the smell of creosote. These issues, combined with public concerns, led 
the Georgia state legislature to ban the combustion of CTRT for 
commercial electricity generation in June 2020.\9\ The public 
complaints that prompted this legislative action were associated with 
two power plants that received modified permits allowing them to 
combust fuel oil and CTRT in 2018.\10\ Since that time, the Georgia 
Environmental Protection Division received at least 23 complaints 
related to these combustors at the two plants.\11\ About half of these 
complaints involved the smell of creosote or smoke and air quality 
concerns; issues associated with dust, excess noise, and runoff were 
also alleged five times each. Five complaints attributed headaches and 
burning eyes and airways to the effect of creosote combustion at the 
plants.
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    \9\ H.R. 857, 150th Gen Assemb., Reg. Sess. (Georgia 2020).
    \10\ See Permit Amendment Nos. 4911-195-0020-E-01-1 and 4911-
119-0025-E-04-1 available in the docket.
    \11\ See Compilation of Citizen Complaints Regarding Combustion 
of Creosote-Treated Railroad Ties available in the docket.
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    Based on EPA discussions with Georgia Environmental Protection 
Division, it appears that inefficient boiler operations, particularly 
during start-up and shut-down operations, (which were subsequently 
corrected) and CTRT grinding were most likely to blame for the 
community complaints.\12\ Notably, the large majority of complaints 
were associated with the facility where grinding operations took place. 
Additionally, the Georgia legislation banning CTRT combustion for 
commercial energy generation created an exemption for any boiler that 
``also provides steam or electricity to any co-located forest products 
processing plant.'' \13\ This provision was added to the legislation to 
allow a CTRT-combusting paper mill in southern Georgia to continue its 
operations because it had not prompted similar citizen complaints.\14\
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    \12\ See June 30, 2020 Georgia EPD Meeting Summary available in 
the docket.
    \13\ H.R. 857, 150th Gen Assemble. Reg. Sess. (Georgia 2020).
    \14\ March 5, 2020 hearing before the Ga. House Natural 
Resources and Environment Comm., 2019-2020 Reg. Sess. (2020) 
(Statement of Alan Powell). See https://livestream.com/accounts/25225474/events/8737135/videos/202562457 at 13:30.
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    As was done in Georgia, state and local governments have authority 
under their state solid waste and water programs, as well as local 
ordinances, to address citizen complaints associated with the 
management and processing of CTRT prior to their use as a non-waste 
fuel, including problems associated with dust, excess noise, and 
runoff. CTRT remain solid waste until processed to produce a non-waste 
fuel per 40 CFR 241.3(b)(4) and thus remain under such solid waste 
regulatory authority. In addition, a federal non-waste determination 
under 40 CFR part 241 does not affect a state's authority to regulate a 
non-hazardous secondary material as a solid waste under the state's 
RCRA Subtitle D solid waste management program.
    It remains unclear how frequently CTRT processing causes community 
concerns and how processors and state and local governments have 
responded. EPA is aware of a handful of cases outside of Georgia in 
which similar concerns were raised by communities where CTRT grinding 
takes place,\15\ but EPA lacks comprehensive information on the 
frequency and extent of such issues and challenges. These environmental 
concerns may impact a material's classification as an NHSM. In order to 
fulfill the ``valuable commodity'' legitimacy criterion required of 
NHSM burned as fuel (40 CFR 241.3(d)(1)(i)), the material must be 
``managed in a manner consistent with the analogous fuel or otherwise 
be adequately contained to prevent releases to the environment.'' 
Likewise, when no analogous fuel exists, the material must be 
``adequately contained so as to prevent releases to the environment. 
EPA is requesting comment on CTRT processing to help the Agency 
determine whether it is standard practice to manage CTRT intended for 
combustion as an NHSM in a manner that fulfills the ``valuable 
commodity'' legitimacy criterion by preventing environmental releases.
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    \15\ See Compilation of Citizen Complaints Regarding Combustion 
of Creosote-Treated Railroad Ties available in the docket.

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[[Page 4541]]

    Specifically, EPA is requesting public comment on the potential 
health and environmental risks associated with managing and processing 
CTRT prior to combustion and potential approaches to addressing these 
issues. Information on the types of control methods or devices 
available, their efficacy, and their practicality may assist the Agency 
in making decisions regarding CTRT processing in the future. Useful 
comments may include information such as industry standards, best 
management practices (BMPs) or standard operating procedures (SOPs), 
and state or local regulations or ordinances regarding dust 
containment. In addition, the Agency is requesting comment on the 
location of CTRT grinding facilities and whether the communities 
surrounding them face the risk of bearing an undue cumulative 
environmental health burden. Moreover, EPA is also requesting comment 
on other sources of environmental pollution and demographic trends 
(especially regarding vulnerable populations) in the vicinity of CTRT 
management locations.

IV. EPA Response to Petitioners' Requested Changes

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

1. Petitioners' Request
    40 CFR 241.3(d)(1)(iii) currently states that, ``The non-hazardous 
secondary material must contain contaminants or groups of contaminants 
at levels comparable in concentration to or less than those in 
traditional fuel(s) that the combustion unit is designed to burn.'' 
Petitioners requested the following revision in the regulatory 
language: ``Persons should consider whether the non-hazardous secondary 
material contains contaminants or groups of contaminants at levels 
comparable in concentration to or lower than those in traditional 
fuel(s) that the combustion unit is capable of burning. . . . The 
factor in this paragraph does not have to be met for the non-hazardous 
secondary material to be considered a non-waste fuel.'' [emphasis 
added].
    Petitioners' rationale for this suggested change focused on a July 
7, 2017 decision by the U.S. Court of Appeals for the D.C. Circuit that 
rejected mandatory compliance with the contaminant comparison criterion 
portion of the legitimacy test in the context of the RCRA rules 
defining ``solid wastes'' under RCRA's Subtitle C hazardous waste 
program (``DSW rule''). American Petroleum Institute v. Environmental 
Protection Agency, 862 F.3d 50 (D.C. Cir. 2017) (``API''). Petitioners 
argued that, in light of the Court's DSW rule decision, the continued 
mandatory use of contaminant comparison criterion in the NHSM rule, 
including limiting railroad tie non-waste fuel classifications to 
certain types of combustion units, can no longer be justified.
    Petitioners referenced preamble language the EPA used in the 2015 
DSW final rule regarding the contaminant comparison criterion, and said 
that ``[t]his language is consistent with the Identification of Non-
Hazardous Secondary Materials that are Solid Wastes final rule (76 FR 
15456, March 21, 2011).'' (80 FR 1727, January 13, 2015) From this 
preamble language petitioners concluded that the EPA has acknowledged 
the equivalence of the contaminant comparison factors in the two rules 
(i.e., Factor 4 in the DSW rule and third legitimacy criterion in the 
NHSM rule).
    In 2017, the API Court invalidated the fourth factor in the DSW 
rule, finding that ``[n]ever in the rulemaking does EPA make out why a 
product that fails those criteria is likely to be discarded in any 
legitimate sense of the term.'' 862 F.3d at 62. Petitioners say that 
the Court also challenged the EPA's ``bare assertion that high levels 
of hazardous constituents . . . could indicate discard,'' and noted 
that the contaminant comparison at issue was ``not a reasonable tool 
for distinguishing products from wastes.'' Id at 60, 63 (internal 
quotes omitted).
    Petitioners argued that the API holding, with its critique of the 
EPA's application of this element of the definition of legitimate 
recycling in the DSW rule, applies with equal force to the NHSM 
legitimacy criteria set forth at 40 CFR 241.3(d). See id at 63. 
Therefore, petitioners alleged that, based on the reasoning and holding 
in API, the contaminant comparison criterion currently contained in the 
NHSM rule's legitimacy criteria and the corresponding NHSM rules for 
railroad ties treated with creosote and other wood preservatives can no 
longer be used as mandatory elements to determine whether a secondary 
material is discarded or not.
    Furthermore, petitioners asserted that the EPA has recognized that 
the contaminant comparison should not be a determining factor for 
whether a material is being discarded. In its 2016 Rule on Additions to 
List of Categorical Non-Waste Fuels, the EPA expressly noted that 
``CTRTs do not become wastes solely because of the switch to natural 
gas.'' 81 FR 6687, 6731 (Feb. 8, 2016). In that rule, the EPA reasoned 
that facilities that have demonstrated the ability to burn fuel oil and 
biomass should not be penalized for switching to natural gas, a fuel 
that creates less air pollution. In addition, petitioners stated that 
the EPA properly determined that resinated wood should qualify as a 
categorical non-waste fuel under the NHSM rule, despite expressly 
recognizing that this material ``may not meet the regulatory 
contaminant legitimacy criteria in every situation'' (78 FR 9112, 9156, 
February 7, 2013). Petitioners claimed that this prior EPA precedent is 
fully consistent with the Court's decision in API and underscores the 
need to eliminate the contaminant comparison as a mandatory factor in 
the NHSM rule's legitimacy criteria generally, and as a condition as 
applied to individual NHSMs.
2. EPA Response
    The argument that the 2017 API decision invalidates the contaminant 
comparison criterion for NHSM fails because the contaminant standards 
in each rule were established for different purposes and in different 
contexts. The DSW rule establishes standards for legitimate recycling 
of hazardous secondary materials into products. The exclusions in the 
DSW rule address reclamation and specifically omit burning for energy 
recovery. Unlike NHSMs, hazardous secondary materials that are burned 
for energy recovery are always solid waste, unless the material is a 
commercial chemical product that is itself a fuel. (See 40 CFR 
261.2(c)(2)). The contaminant comparison in 40 CFR 260.43(b) compares 
hazardous constituents in the product of the recycling process to the 
corresponding constituents in the analogous product made from virgin 
material. While 40 CFR 260.43(b) specifies that this factor ``does not 
have to be met for the recycling to be considered legitimate,'' the 
regulation also explains that ``[i]n evaluating the extent to which 
this factor is met and in determining whether a process that does not 
meet this factor is still legitimate, persons can consider exposure 
from toxics in the product, the bioavailability of the toxics in the 
product and other relevant considerations.'' In other words, the 
definition of legitimate recycling in 40 CFR 260.43, as it relates to 
hazardous constituents, focuses on the effect those hazardous 
constituents have on the risks posed by the product of recycling.
    In contrast, the NHSM rule was established solely to determine 
whether an NHSM that is combusted as a fuel or an ingredient is a waste 
or a non-waste for purposes of applying appropriate emission standards 
under CAA section

[[Page 4542]]

129 or CAA section 112. Without the contaminant criterion, an NHSM 
could contain contaminant levels that are significantly higher than the 
traditional fuels they are meant to replace and still be considered a 
non-waste fuel. Burning is an inherently destructive process, even if 
there is energy recovery. Thus, through the NHSM rules, the Agency 
evaluates whether burning an NHSM for energy recovery also has the 
effect of destroying contaminants that would not otherwise be present 
in the corresponding traditional fuel, indicating discard may be 
occurring.
    NHSM standards for categorical non-wastes also differ significantly 
from the DSW rule because the NHSM standards allow consideration of 
``other relevant factors'' in determining whether the contaminant 
comparison criterion is met. (See 40 CFR 241.4(b)(5)(ii)). Thus, the 
NHSM standards already provide flexibility to meet the contaminant 
comparison criterion, where appropriate. The API court's rejection of 
the mandatory contaminant comparison for hazardous wastes in the DSW 
rule turned, in large part, on what the court viewed as a rigid and 
severe standard. The court felt that the requirement ``sets the bar at 
the contaminant level of the analogue without regard to whether any 
incremental contaminants are significant in terms of health and 
environmental risks.'' 862 F.3d at 60. However, the court went on to 
commend an exception to that test in which a recycler could satisfy 
this legitimacy criterion with evidence of ``lack of exposure from 
toxics in the product, lack of the bioavailability of toxins in the 
product, or other relevant considerations which show that the recycled 
product does not contain levels of hazardous constituents that pose a 
significant human health or environmental risk.'' Id. (quoting 40 CFR 
260.43(a)(4)(iii) (2016)). Ultimately, the court found the exception to 
be insufficient ``due to the draconian character of the procedures.'' 
Id. at 61. That is, if a recycler failed to satisfy any step in the 
exception process, an otherwise legitimate product would be considered 
to be hazardous waste. The NHSM regulations avoid these problems by 
allowing the Agency to consider ``other relevant factors,'' which 
offers flexibility without the ``draconian'' procedures of the 2015 DSW 
rule.
    Therefore, for all of the reasons stated above, the API decision 
does not directly apply because the context of burning NHSM differs 
fundamentally from hazardous waste recycling.
    Finally, we also note that the NHSM legitimacy criteria have been 
in place since 2011 and were upheld by the D.C. Circuit Court in Solvay 
v. EPA. 608 Fed. Appx. 10 (D.C. Cir. 2015) (45 ELR 20107 Nos. 11-1189, 
(D.C. Cir., 06/03/2015)). A substantive change to the contaminant 
comparison criterion that would allow NHSM generators to ``consider'' 
significantly higher levels of contaminants in their NHSM-derived fuel, 
without any threshold or indication of when such a consideration might 
result in an NHSM being a solid waste, would create regulatory 
uncertainty for the combustion units that burn this material and rely 
on an accurate non-waste determination for their CAA permit 
applicability determinations. The Agency is, therefore, proposing to 
deny the Petitioners' request regarding the contaminant comparison 
criterion.

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

1. Petitioners' Request
    As discussed above, 40 CFR 241.3(d)(1)(iii) states that ``[t]he 
non-hazardous secondary material must contain contaminants or groups of 
contaminants at levels comparable in concentration to or less than 
those in the traditional fuel(s) that the combustion unit is designed 
to burn . . .'' (emphasis added). As currently applied, the petitioners 
believe the designed to burn criterion means that the exact same 
railroad tie is considered a solid waste when burned in one unit, but a 
non-waste fuel when burned in another. The petition stated that the EPA 
has acknowledged the character of the NHSM does not change depending on 
the design of the boiler it goes to, and has offered no rationale for 
how the existence of a fuel oil nozzle in a boiler (i.e., a boiler 
originally designed to burn fuel oil, but later retrofitted to burn 
natural gas) informs the question of whether railroad ties are being 
legitimately used as fuel, or in fact are simply being discarded in a 
hypothetical ``sham recycling'' operation.
    In addition, petitioners argued, the EPA has imposed other 
restrictions unrelated to the characteristics of the NHSM itself--
including a requirement that the facility in question must have been 
built before April 2014 and that the amount of NHSM combusted in that 
facility may not exceed 40% of the total fuel mix in a given year. 
Petitioners claimed that, in adding these various requirements 
regarding the characteristics of the combustion unit, the 
characteristics of the material and the motivation of the recycler are 
essentially rendered irrelevant to the determination of whether the 
material is a solid waste. Petitioners felt that this is contrary to 
RCRA case law and an arbitrary and unreasonable basis on which to 
decide whether the material is, in fact, being discarded or 
legitimately used as fuel.
    Petitioners indicated that, as the agency charged with 
environmental protection, the EPA should encourage the widespread use 
of railroad ties and other similarly situated NHSM as fuel, rather than 
restrict that use and condemn valuable fuel sources to landfills. 
Furthermore, the Petitioners stated that the regulatory revisions 
requested in the Petition promote environmental sustainability, 
consistent with the EPA's Waste Management Hierarchy, eliminate undue 
and burdensome regulation, and reduce costs associated with such 
regulatory burdens.
    According to a survey conducted jointly by the Railway Tie 
Association, ASLRRA and the AAR, railroads removed an average annual 
total of 23,975,000 railroad ties as part of track upgrade projects in 
the period from 2013 to 2016. The survey indicated that railroads sent 
81.3% of those railroad ties to cogeneration facilities. As asserted in 
the joint comments previously submitted by AAR, TWC, and AF&PA on 
January 3, 2017, the designed to burn criterion disqualified 
approximately 58% of the existing boiler capacity to burn these 
railroad ties. Petitioners noted this capacity limitation means it 
takes much longer to move ties through the fewer eligible facilities, 
and railroads must transport the ties longer average distances to reach 
an eligible facility.
    The primary alternative for managing the large volume of railroad 
ties removed from the rail lines each year is landfill disposal. 
According to petitioners, if substantial numbers of ties are excluded 
from the scope of what can be burned for energy generation in lieu of 
fossil fuels, the result will be an increased use of non-renewable 
fuels and an increase in the volume of ties sent to landfills. As the 
landfilled ties decay, they release greenhouse gases--including 
methane--into the Earth's atmosphere, an outcome that petitioners 
argued is contrary to public policy and the EPA's stated goals.
    Further, at a cost of $70 to $90 per ton, petitioners projected 
that landfilling the additional railroad ties will cost railroads an 
additional $74 to $95 million per year.\16\ Petitioners argue

[[Page 4543]]

that reduction of these burdensome and unnecessary costs is consistent 
with Executive Order 13771 and the EPA's August 17, 2018 memorandum 
reinforcing the work of the EPA's Regulatory Reform Task Force.
---------------------------------------------------------------------------

    \16\ EPA notes that there are other options to landfilling 
CTRTs, including using them as fuel in units that are in compliance 
with CAA 129 and landscaping; see Smith, Stephen T., ``2018 Railroad 
Tie Survey,'' https://www.rta.org/assets/docs/RTASponsoredResearch/Environmental/2019-4-9%20Tie%20Survey%20Report%20Final.pdf.
---------------------------------------------------------------------------

2. EPA Response
    Regarding petitioners' claim that the same NHSM is treated 
differently in different units, such a claim ignores the underlying 
premise of the NHSM rules, which is to determine whether an NHSM that 
is combusted is a waste or a non-waste for purposes of applying 
appropriate emission standards under CAA section 129 or CAA section 112 
to the unit burning the NHSM. Thus, it is entirely appropriate that an 
NHSM would be considered a non-waste fuel when burned in a unit 
designed to burn a comparable traditional fuel, and a solid waste when 
burned in a unit that is not designed to burn a comparable traditional 
fuel. Contaminants or groups of contaminants in the NHSM must occur at 
levels comparable to or lower than those in the traditional fuel the 
unit is designed to burn. Under 40 CFR 241.4(a)(7)(i) and (8)(i), each 
unit must be designed to burn both biomass and fuel oil, since 
contaminant levels in CTRT (e.g., SVOCs) are considerably higher than 
biomass alone. Without the designed to burn criterion, contaminant 
levels could be compared to any traditional fuel or combination of 
fuels, resulting in a unit burning contaminants under the boiler 
provisions in CAA section 112 that the unit would otherwise never have 
been eligible to handle.\17\
---------------------------------------------------------------------------

    \17\ This issue would be a concern even under the petitioners' 
requested change to make the contaminant comparison criterion ``to 
be considered'' rather than mandatory.
---------------------------------------------------------------------------

    It should be noted that as a result of the 2013 NHSM rule, the 
regulations already provide considerable flexibility in implementing 
the designed to burn criterion. Persons making contaminant level 
comparisons may choose a traditional fuel that can be or is burned in 
the particular type of boiler, whether or not the combustion unit is 
permitted to burn that traditional fuel. Broad groups of similar 
traditional fuels may be used when comparing contaminant levels (e.g., 
coal, biomass, fuel oil, and natural gas). The regulatory language in 
40 CFR part 241 makes it clear that a unit is considered designed to 
burn a traditional fuel if it is physically capable of burning the 
fuel, regardless of whether it has burned, or is permitted to burn, 
such a fuel.
    Petitioners suggest replacing language in the CTRT rules regarding 
which units are ``designed to burn'' CTRT with units ``operating in 
compliance with all applicable permits.'' However, the NHSM rules are 
used to determine which CAA permits are applicable to a unit combusting 
NHSM, making the suggested reference to ``applicable permits'' circular 
and meaningless.
    In regards to petitioners' comments on EPA's decision to include in 
the non-waste determination CTRT burned as fuel in units at major 
source pulp and paper mills or power producers subject to 40 CFR part 
63, subpart DDDDD that had been originally designed to burn biomass and 
fuel oil, but had switched to natural gas (see 40 CFR 241.4(7)(ii),\18\ 
the EPA could have reasonably limited the contaminant comparison to the 
much lower contaminant levels in natural gas. However, as part of the 
Agency's authority to consider ``other relevant factors'' in making a 
categorical non-waste fuel determination in cases where one of the 
legitimacy criteria is not met (See 40 CFR 241.4(b)(5)(ii)), the Agency 
elected to include units that no longer burn fuel oil to avoid 
``penalizing'' the converted units that switched to cleaner-burning 
fuel.\19\ Conditions imposed on CTRT combusted in natural gas-fired 
units are part of the relevant factors the EPA used to determine 
whether discard has occurred (see 81 FR 6724-25).
---------------------------------------------------------------------------

    \18\ EPA is neither reopening nor taking comment on these 
regulations.
    \19\ 81 FR 6724, February 8, 2016.
---------------------------------------------------------------------------

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

C. Preamble Discussion of Storage Times for Railroad Ties

1. Petitioners' Request
    In addition to the requested regulatory changes, the petition 
raises an issue related to railroad tie storage timeframes as it 
impacts NHSM eligibility as discussed in the 2016 NHSM rule. In the 
preamble to that rule, the EPA discussed its presumption that storage 
of ties for a year or longer without an end-use determination is not 
``reasonable,'' and indicates that the material has been discarded. 
Petitioners asserted that this is incompatible with the realities of 
railroad operations. That is, unlike discrete facilities from which 
valuable secondary materials are easily reclaimed, the railroad right-
of-way extends over thousands of miles across the United States. 
Petitioners said that many locations where ties are removed are not 
readily accessible except by rail and tie pickup interrupts freight and 
passenger train service and competes with safety[hyphen]related 
operations such as track maintenance and inspection. Train service and 
safety are regulated by the Surface Transportation Board and Federal 
Railroad Administration, respectively. Petitioners indicated that, due 
in part to those agencies' requirements, service and safety must take 
precedence over tie recovery. Petitioners asserted that these 
challenges make it unrealistic to collect used ties within one year of 
removal from service--but for reasons completely unrelated to the 
determination of whether ties are managed as a ``valuable commodity'' 
under the NHSM framework. Moreover, the EPA has recognized that ``the 
reasonable timeframe for storage may vary by industry'' (81 FR 6725, 
February 8, 2016). In the context of railroad tie management, 
petitioners asserted that three or more years is a reasonable storage 
timeframe.
2. EPA Response
    Regarding storage time for CTRT (to meet the valuable commodity 
criterion), petitioners misinterpreted the preamble discussion in the 
February 8, 2016 rule, which explained that the amount of time for 
industry to decide on value and end use of CTRT (whether sent to a 
landfill, used as fuel, or another non-fuel purpose) could exceed one 
year (81 FR 6725). In such circumstances, lengthy storage of the 
treated railroad ties generally occurs because the railroad has not 
determined the end use of the ties, not because the ties are being 
stored for later transfer to a pre-established buyer. Further, CTRT 
would be considered discarded until processed

[[Page 4544]]

into a non-waste fuel, since NHSMs that are transferred off-site for 
reclamation and reuse as a fuel are considered discarded and must be 
processed and meet the legitimacy criteria.
    The general reasoning for this off-site standard is that the 
incentive for management of the NHSM as a valuable fuel product is 
lessened when transferred to a third party. To be considered a non-
waste fuel when transferred off-site without first undergoing 
processing, the material would have to undergo the petition process 
under 241.3(c) to demonstrate that the material has not been discarded. 
EPA continues to find, as noted in the 2016 rule, that railroad ties 
removed from service can be stored for long periods of time without a 
final determination regarding their final end use, and they are 
considered discarded. In order for these ties to be considered a non-
waste fuel, they must be processed, thus transforming the railroad ties 
into a product fuel, and then combusted in prescribed units under 
prescribed conditions.

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

1. Petitioners' Request
    Petitioners also requested that the EPA amend the definition of 
``paper recycling residuals'' (PRR) to amend the description and remove 
the definitional condition that PRR that ``contain more than small 
amounts of non-fiber materials . . . are not paper recycling 
residuals'' (40 CFR 241.2, emphasis added). Petitioners believed that 
this condition is overly vague and directly at odds with the Court's 
decision in API.
    Petitioners requested that the second sentence in the definition 
precluding materials that contain ``more than small amounts of non-
fiber materials'' from qualifying as PRR should be removed. They argued 
that this condition suggests that the list of non-fiber materials 
identified in the definition are somehow viewed as contaminants in PRR. 
But, as discussed above, petitioners argue that in vacating the 
contaminant comparison criterion in the DSW rule, the D.C. Circuit made 
clear that the mere presence of some contaminants in a material 
destined for legitimate recycling is not the basis for finding that the 
material has been ``discarded'' and thus subject to regulation as a 
solid waste.
    In addition to arguing that this condition is inconsistent with the 
D.C. Circuit's holding in API, the petitioners believe that the ``small 
amount'' limitation is overly vague. While members of the regulated 
community have used good faith efforts in determining that PRR burned 
as fuel meet this condition, it is well established that ``a statute 
which either forbids or requires the doing of an act so vague that men 
of common intelligence must necessarily guess at its meaning and differ 
as to its applications, violates the first essential of due process of 
law.'' FCC v. Fox Television Stations, Inc., 567 U.S. at 239, 253 
(2012) (internal citation omitted). According to petitioners, the 
``small amount'' criterion in the definition of PRR falls squarely 
within this ``impermissibly vague'' infirmity and should be removed 
from the definition to help ensure that ``those enforcing the law do 
not act in an arbitrary or discriminatory way.'' FCC, 567 U.S. at 253 
(internal citation omitted).
    Furthermore, petitioners argue that the current definition 
describing PRR as ``composed primarily of wet strength and short wood 
fibers'' is not correct as the re-pulping of recovered fibers can 
result in a variety of strengths and sizes of fibers in PRR, so the 
current limitation to ``wet strength and short wood fibers'' is 
unnecessarily restrictive. Some residuals from recycling paper, 
paperboard and corrugated containers are composed of fibers other than 
wet strength fibers or short-wood fibers, but nonetheless cannot be 
used to make new paper or paper products and therefore are burned for 
their energy value.
2. EPA Response
    EPA disagrees with the petitioner's arguments for removing language 
limiting the amount of non-fiber materials in PRR burned as a non-waste 
fuel. The reasoning for not including the non-fiber materials as PRR 
was not focused on discard due to contaminants present, but rather, 
discard due to lack of heating value and not contributing to energy 
recovery. In the April 14, 2014 proposed rule, the EPA requested, but 
did not receive, information regarding the percent of non-fiber 
materials commonly present in PRR and their heating value (79 FR 
21017). Lacking information to the contrary, the Agency determined that 
PRR with higher amounts of non-fiber materials would likely have a 
lower heating value. Combustion of materials with low heating values is 
typically be considered discard. PRR already has a relatively low 
heating value (as fired and generated, average 3,700 Btu/lb),\20\ so 
large amounts of non-fiber materials would lower the heating value of 
the material, further raising the question of burning as discard.
---------------------------------------------------------------------------

    \20\ 81 FR 6716, February 8, 2016.
---------------------------------------------------------------------------

    In the review of the petition, the Agency reaffirms the previous 
conclusion that residuals from processes such as mixed paper waste 
recycling with significant quantities of non-fiber materials (e.g., 
clays, starches, waxes and adhesives, other plastics, filler and 
coating additives, and dyes and inks) are considered to be a solid 
waste fuel when combusted, due to a lack of meaningful heating 
value.\21\
---------------------------------------------------------------------------

    \21\ 81 FR 6718, February 8, 2016.
---------------------------------------------------------------------------

    However, the EPA does believe that it may be more appropriate to 
set a numerical threshold for non-fiber material, rather than prohibit 
them entirely or rely on the term ``small amounts.'' As indicated 
above, information on such threshold amounts of non-fiber materials was 
not received from industry and a review of current scientific studies 
also did not reveal specific amounts. As an alternative, although not 
directly used for PRR as fuels, the Scrap Specifications Circular 
(2021); Institute of Scrap Recycling Industries Guidelines for Paper 
Stock identifies a 2% prohibitive material content limit for mixed 
paper stock used for re-pulping paper.\22\ In the circular, prohibitive 
material is material which by its presence, in excess of the amount 
allowed, will make the pack unusable as the grade specified, as well as 
any materials that may be damaging to equipment. In evaluating the 
grades of paper identified in the circular, the maximum allowance of 
prohibitive materials in mixed paper (which consists of all paper and 
paperboard of various qualities not limited to the type of fiber 
content) is 2%. The Agency has concluded that this prohibitive material 
measure can provide an analogous measure for non-fiber materials 
contained within PRR.
---------------------------------------------------------------------------

    \22\ Institute of Scrap Recycling Industries (ISRI) Scrap 
Specifications Circular (2021), page 34; https://www.scrap2.org/specs/.
---------------------------------------------------------------------------

    Furthermore, the definition of PRR as ``composed of primarily wet 
strength and short wood fibers'' was based on previously submitted 
industry information (81 FR 6721, February 8, 2016). However, based on 
the information submitted in this petition, the Agency agrees that the 
reference to ``primarily wet strength and short wood fibers'' is too 
limiting and inadvertently excludes fibers of different strength and 
size that may provide heating value, and therefore we are proposing to 
change the language to ``fibers that are too small or weak to be used 
to make new paper and paperboard products.''

[[Page 4545]]

    Accordingly, the Agency proposes to revise the definition of PRR as 
follows: Paper recycling residuals (PRR) means the secondary material 
generated from the recycling of paper, paperboard and corrugated 
containers composed primarily of fibers that are too small or weak to 
be used to make new paper and paperboard products. Residuals that 
contain more than 2% by weight of non-fiber materials, including 
polystyrene foam, polyethlene film, other plastics, waxes, adhesives, 
dyes and inks, clays, starches and other coating and filler material 
are not PRR under this definition.

V. Effect of This Final Rule on Other Programs

    Beyond amending the definition of PRR, this tentative denial 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), February 8, 2016 (81 FR 6688) and February 7, 
2018 (83 FR 5317). Refer to section VIII of the preamble to the March 
21, 2011 NHSM final rule \23\ for the discussion on the effect of the 
NHSM rule on other programs.
---------------------------------------------------------------------------

    \23\ 76 FR 15456, March 21, 2011 (page 15545).
---------------------------------------------------------------------------

VI. State Authority

A. Relationship to State Programs

    This tentative denial and proposed change to the definition of PRR 
does not change the relationship to state programs as described in the 
March 21, 2011 NHSM final rule. Refer to section IX of the preamble to 
the March 21, 2011 NHSM final rule \24\ 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.
---------------------------------------------------------------------------

    \24\ 76 FR 15456, March 21, 2011 (page 15546).
---------------------------------------------------------------------------

B. State Adoption of the Rulemaking

    No federal approval procedures are included in this rulemaking 
action under RCRA subtitle D. While states are not required to adopt 
regulations promulgated under RCRA subtitle D, some states incorporate 
federal regulations by reference or have specific state statutory 
requirements that their state program can be no more stringent than the 
federal regulations. In those cases, the EPA anticipates that, if 
required by state law, the changes being made in this document will be 
incorporated (or possibly adopted by authorized state air programs) 
consistent with the state's laws and administrative procedures.

VII. Costs and Benefits

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

VIII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review because it may 
raise novel policy issues. Any changes made in response to OMB 
recommendations have been documented in the docket.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA as this action only changes the definition of PRR for the 
purposes of the NHSM regulations. 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, EPA concludes that the impact of concern for 
this rule is any significant adverse economic impact on small entities 
and that the Agency is certifying that this rule will not have a 
significant economic impact on a substantial number of small entities 
because the rule has no net burden on the small entities subject to the 
rule. While this proposed action will provide greater clarity, reduce 
regulatory uncertainty associated with paper recycling residuals, and 
help increase management efficiency, it would not change the 
substantive requirements of the regulations. The proposed 2% limit for 
non-fiber material in PRR that would replace the current limit of 
``small amounts'' is based on a voluntary consensus standard set by the 
Institute of Scrap Recycling Industries (ISRI) in their Scrap 
Specifications and would not require a change in current industry 
practices. We have therefore concluded that this action will have no 
net regulatory burden for all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The costs involved in this action are imposed only 
by participation in a voluntary federal program. UMRA generally 
excludes from the definition of ``Federal intergovernmental mandate'' 
duties that arise from participation in a voluntary Federal program. 
Affected entities are not required to manage the additional NHSMs as 
non-waste fuels.

E. Executive Order 13132: Federalism

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

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

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

[[Page 4546]]

environmental health or safety risks addressed by this action present a 
disproportionate risk to children. The change to the definition of PRR 
would not affect the overall risk to children posed by boiler 
emissions. This is because the overall level of emissions, or the 
emissions mix from boilers, are not expected to change significantly 
because of the change in definition of PRR and these units remain 
subject to the protective standards established under CAA section 112.

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

    This action involves technical standards. The EPA proposes to use a 
2% by weight limit on the amount of non-fiber content allowed in paper 
recycling residuals (PRR) when burned as a non-waste fuel. This is 
based on a voluntary consensus standard set by the Institute of Scrap 
Recycling Industries (ISRI) in their Scrap Specifications Circular 
(2021); which identifies a 2% prohibitive material content limit for 
paper stock used for re-pulping paper. See page 34; https://www.scrap2.org/specs/. In the circular, prohibitive material is 
material which by its presence, in excess of the amount allowed, will 
make the pack unusable as the grade specified, as well as any material 
that may be damaging to equipment. In evaluating the grades of paper 
identified in the circular, the maximum allowance of prohibitive 
materials in mixed paper (which consists of all paper and paperboard of 
various qualities not limited to the type of fiber content) is 2%. The 
Agency proposes that this prohibitive material measure can provide an 
analogous measure for allowable amounts of non-fiber materials 
(including polystyrene foam, polyethlene film, other plastics, waxes, 
adhesives, dyes and inks, clays, starches and other coating and filler 
material) contained within PRR.

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

    The EPA believes that this action, if finalized, would not have 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations and/or 
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, 
February 16, 1994). The proposed change in definition of PRR is not 
expected to significantly change the overall level of emissions, or the 
emissions mix from boilers, and these units remain subject to the 
protective standards established under CAA section 112.
    However, if EPA were to grant the petitioners' requests, CTRT could 
be combusted in biomass-only boilers, including biomass boilers that 
are area sources under the CAA. As discussed earlier, these boilers 
would have higher emissions when burning CTRT rather than biomass. 
Emission standards for dioxins, SO2, NOX, etc. 
for non-major sources are addressed under the CAA section 129 standards 
but are not addressed by area source boiler standards under CAA section 
112 which require only tune-ups. The risks from increased emissions 
would most likely be disproportionately borne by minority and low-
income communities. In areas within three miles of boilers, the 
minority share of the population was found to be 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) is also 
higher than the national average (13 percent).

List of Subjects in 40 CFR Part 241

    Environmental protection, Air pollution control, Waste treatment 
and disposal, Non-Hazardous Secondary Materials.

Michael S. Regan,
Administrator.

    For the reasons stated in the preamble, the EPA is proposing to 
amend 40 CFR part 241 of the Code of Federal Regulations as follows:

PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION 
UNITS

0
1. The authority citation for part 241 continues to read as follows:

    Authority:  42 U.S.C. 6903, 6912, 7429.

0
2. Amend Sec.  241.2 by revising the definition of ``paper recycling 
residuals'' to read as follows:


Sec.  241.2  Definitions.

* * * * *
    Paper recycling residuals (PRR) means the secondary material 
generated from the recycling of paper, paperboard and corrugated 
containers composed primarily of fibers that are too small or weak to 
be used to make new paper and paperboard products. PRR that contain 
more than 2% by weight of non-fiber materials, including polystyrene 
foam, polyethlene film, other plastics, waxes, adhesives, dyes and 
inks, clays, starches and other coating and filler material are not PRR 
under this definition.
* * * * *
[FR Doc. 2022-01074 Filed 1-27-22; 8:45 am]
BILLING CODE 6560-50-P