
 









 Summary of Public Comments and Responses for Non-Hazardous Secondary Materials That Are Solid Waste

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

                                                                   January 2018





                   Summary of Public Comments and Responses for
            Non-Hazardous Secondary Materials That Are Solid Waste 
                                        
 Additions to List of Section 241.4 Categorical Non-Waste Fuels:  Other Treated Railroad Ties



             U. S. Environmental Protection Agency Office of Resource Conservation and Recovery
    Materials Recovery and Waste Management Division (MC 5304P) Washington, DC
















This document presents public comment excerpts that provide additional detail to comments contained in the preamble to the final rule, or are unaddressed in the final rule. The last digits of the docket document identification number (DCN) are presented at the beginning of each excerpt. The full DCN is therefore EPA-HQ-RCRA-2013-0110-[number in bold type preceding the excerpt]. Where commenters provided similar comments on the same topic, one response is provided for multiple excerpts. Table 1 of this document provides a listing of commenters, and those comments and responses presented in the preamble by topic and preamble section.

General Support

Comment: (0020, 0022, 0023)

Several commenters expressed general support for EPA's proposed listing of OTRTs as categorical non‐waste fuels under section 241.4. The commenters affirmed that the determination was fully warranted, reiterating EPA's assertions in the proposal that OTRTs are managed as a valuable commodity, have a heating value exceeding the 5,000 Btu/lb. level that EPA considers "meaningful," and contain contaminants at concentrations comparable to or lower than those of traditional fuels. One commenter emphasized that treating railroad ties benefits the energy content of the biomass material, making the ties a desirable alternative fuel. The commenter stressed that the materials are not discarded, stating that they have clear value as fuel, are sold under long term agreements for use as a fuel and should be classified as a non-waste material.

One commenter observed that EPA correctly identifies cement manufacturing as a potential use for the three types of railroad ties that EPA proposes to list and noted that listing OTRTs as categorical non-waste would provide regulatory certainty that OTRTs can be used as a valued additional fuel source in cement kilns not burning "solid waste" without being subject to regulation under Clean Air Act Section 129 standards. The commenter explained that even though they were unaware of any cement kilns currently combusting OTRTs, this wasn't surprising because most U.S. cement kilns can't use OTRTs without triggering either regulation as commercial/industrial solid waste incinerator (CISWI) units or documentation requirements addressing the NHSM criteria on a site and material-specific basis.

Commenters stated that this categorization furthers public policy objectives in RCRA that encourage environmentally responsible recycling of a valuable renewable resource for energy recovery. 



Response:

The Agency thanks the commenters for their feedback.    

General Opposition

Comment: (0021)

One commenter opposed the proposed rule, claiming that railroad ties are discarded initially as well as after processing, making them solid waste under RCRA. The commenter argued that tie-processing and burning are part of waste disposal because railroads usually have to pay to have ties burned. 

The commenter also expressed their concern regarding how ties deemed non-waste will be kept separate from waste ties. The commenter explained that, if ties are commingled and processed with many other ties, all of which have originated from numerous manufacturing locations in a multitude of states, then facilities burning railroad ties must still be presumed to be solid waste incinerators unless the ties at issue in this rule are kept separate from waste ties.


Response:

The commenter first stated that railroad ties continue to be solid wastes since they were discarded initially as well as after processing.  Previous NHSM rules (see 76 FR 15474-77) have discussed the rationale behind the standard that an NHSM is not considered discarded after processing (40 CFR Part 241.3(b)(4)).  That rationale has not been reopened for the current rulemaking.   

The second statement indicated that comingled waste and non-waste ties from many locations should be considered to be solid wastes.  However, information from the regulated community indicates that contracts for the purchase and combustion of OTRTs generally include fuel specifications limiting contaminants such as metals and prohibiting comingling i.e. the receipt of wood treated with other preservatives such as pentachlorophenol (proposed OTRT rule 81 FR 75786).  Moreover, the rule itself only allows specific types of treated ties to qualify for this non-waste determination. Commingled ties treated with substances other than those that have received a non-waste determination would not be eligible under the OTRT rule. 


Designed to Burn Limitation

Comment: (0020, 0022, 0023)

Commenters objected to some of the limitations set by the proposed rule (e.g. limiting units designed to burn CTRT to those designed to burn biomass and fuel oil), arguing that they would be inconsistent with EPA's goals. One commenter explained that the limitations would discourage resource conservation, energy recovery, and greenhouse gas emission reduction using environmentally preferable alternatives to fossil fuels. The commenter cited a life-cycle analysis of alternative uses of rail ties, reporting that for every tie used for energy generation, the saving is a net offset of approximately 249 pounds of carbon dioxide emissions, and that if all used rail ties were recycled for energy production, the reduction in greenhouse gas emissions and fossil fuel use would be equivalent to that of a city of nearly 100,000 people. Another commenter argued that EPA can't demonstrate that the limitations would provide any greater environmental protection. The commenter also argued that EPA is not adequately "weighing" the legitimacy criteria and that EPA has the legal authority to rely more broadly on "other relevant factors" when making the final non-waste determination in this rule.

Two commenters specifically opposed EPA's designed-to-burn requirement, which limits the use of OTRTs as fuel in certain units. Specifically, one commenter (TWC) stated that the designed-to-burn condition is unnecessary to achieve EPA's objectives for this rulemaking and frustrates important goals favoring use of renewable energy sources over combustion of fossil fuels. The commenter further contended that EPA's need to keep making adjustments, like the consideration of a de minimis exception or inclusion of coal for contaminant comparisons, is a direct result of the designed to burn limitation.

One commenter maintained that it is arbitrary, capricious, and counterproductive for creosote-borate treated ties to be considered waste in a biomass boiler, when it can be considered non-waste in another boiler, even in the same facility with the same emission controls, as long as that other boiler burns fuel oil in addition to biomass. The commenter pointed out that there are many units capable of effectively burning OTRTs for their energy value, but they would be precluded under the designed-to-burn criterion from combusting dual‐treated creosote‐borate OTRTs as non‐waste fuels. As an example, the commenter submitted a table summarizing existing and potential users of CTRTs and OTRTs by state, quantity, boiler type, and existing auxiliary fuel infrastructure, including boilers not equipped to burn fuel oil. The commenter claimed that preventing such a large universe of boiler systems from effectively combusting OTRT fuels in lieu of virgin fuels is at odds with RCRA's twin goals of resource conservation and energy recovery.

Response:

The Agency recognizes the importance of OTRTs as a fuel to the biomass power industry and to boilers designed specifically for the use of biomass as a fuel. Indeed, there may be environmental benefits to allowing OTRT use. The statutory requirement under RCRA, however, is to determine whether the material is a waste when burned as a fuel. The environmental and efficiency benefits, moreover, would accrue regardless of whether the facilities were burning railroad ties under CAA 112 or 129 regulations. The policy arguments put forth by these commenters may be valid but not relevant to whether material is discarded.

EPA disagrees that the Agency is not adequately weighing the legitimacy criteria against other relevant factors. The Agency can list an NHSM categorically by balancing the legitimacy criteria against other relevant factors, but balancing does not mean the Agency can simply ignore any of the legitimacy criteria no matter the type or levels of contaminants because the material is a source of fuel with higher Btu value and low moisture. EPA's NHSM regulations expressly require a determination that the NHSM contain contaminants at levels comparable to or lower than those in traditional fuels that the unit is designed to burn. 40 CFR 241.3(d)(1)(iii). In the case of OTRTs containing creosote (i.e. creosote-borate treated railroad ties and railroad ties treated with mixtures of creosote, borate, and copper naphthenate) combusted in units that were never designed to burn fuel oil, the Agency would be allowing the combustion of highly toxic contaminants present in the OTRTs several orders of magnitude greater that found in biomass alone. In addition to major source biomass boilers, such material could also be burned in smaller area source biomass boilers which do not require emission controls.   

Thus, while the Agency recognizes that other relevant factors, including purchase of the material as a commodity for its fuel value, may be considered when one of the legitimacy criteria are not met, we do not agree that consideration of such factors would allow the EPA to undermine the legitimacy criterion.  

Comment: (0020, 0022, 0023)

One commenter stated that the designed to burn limitation is based on EPA's presumption that, if a facility combusts OTRTs containing contaminants at levels higher than those in traditional fuels the combustion unit is designed to burn, then the higher levels of contaminants are being discarded when combusted. The commenter argued, however, that no element of discard is occurring when OTRTs are combusted as a fuel in other units not specifically designed to burn biomass or fuel oil. The commenter explained that facility owners or operators combust OTRTs because they are a dry biomass fuel and thus they are integral to the production process, as their use as a component of the fuel input to the combustion unit is critical to ensuring a proper fuel mix for normal production operations. The commenter stressed that there is no intent on the part of the owner/operator to engage in discard when using OTRTs as an alternative fuel, irrespective of whether the combustion unit is designed to burn biomass and/or fuel oil. The commenter noted that EPA made this same point when explaining why combustion units that have been reconfigured to burn only gas can still qualify to burn OTRTs as a categorical non‐waste fuel. The commenter concluded that these points warrant EPA's removal of the designed-to-burn condition in the final rule, and classifying OTRTs as categorical non‐waste fuels by balancing the legitimacy criteria with other relevant factors. 

Two commenters pointed to EPA's statement that its "legitimacy criteria" are factors to determine if sham recycling is taking place (citing 76 Fed. Reg. at 15471), arguing that, without evidence of adulteration, levels of contaminants found in an alternative fuel are not evidence of "sham recycling." One commenter cited American Petroleum Institute v. EPA, 216 F.3d 50, 58 (D.C. Cir. 2000), in which the D.C. Circuit noted that a recycler could show that the constituents in a secondary material "are not a product of adulteration, not discarded, and outside EPA's authority to regulate such material under RCRA." The commenter stated that the API II court found that a facility's motivation in recycling a secondary material is critical in determining whether sham recycling, and thus discard, is occurring. The commenter highlighted the court's finding that a facility's treatment of an oil‐bearing wastewater to recover relatively small amounts of oil could be driven more by a reclamation motivation -- which would not involve discard -- than by a compliance motivation. The commenter argued that facilities combust OTRTs because this fuel input is critical to ensuring a proper fuel fix for efficient and effective combustion operations (as EPA recognizes), and thus the motivation behind combusting OTRTs is driven primarily by operational interests to ensure a proper fuel mix in the combustion units, not to engage in discard for any component of the OTRT fuel. 

The commenter also cited Safe Food and Fertilizer v. EPA, in which the D.C. Circuit upheld EPA's reasoning that secondary materials containing higher levels of hazardous constituents than in analogous commercial products that were recycled to make fertilizers are not automatically "discarded." The commenter contended, based on the court's reasoning in this case, that if market participants treat secondary materials more like valuable products than like negatively‐valued waste, the differences in the level of hazardous constituents in the recycled materials versus those in analogous commercial products "lose their significance when put in proper perspective". The commenter argued that any differences in the composition of OTRTs versus traditional fuels "lose their significance" when put in a perspective based on health and environmental risks, given that any emissions from any additional contaminants can be addressed in applicable CAA controls.

The commenter claimed that the rulemaking record makes clear that -- regardless of the type of combustion unit -- OTRTs are treated as valuable commodities and there is no evidence of intent to engage in discard by facility owners/operators combusting OTRTs for their energy value, because they serve as critical supplemental fuels integral to normal production operations and, as such, are "integrally tied to the industrial production process." The commenter concluded, therefore, that the designed-to-burn limitation is unnecessary to ensure that OTRT combustion in units not specifically designed to burn biomass and/or fuel oil does not involve discard. 

The commenter noted that the same factors supporting the removal of the designed-to-burn limitation in this rulemaking also warrant EPA removing the designed-to-burn limitation from the existing categorical non‐waste listing for CTRTs and asked that EPA initiate a rulemaking to make this change.

Response:

Commenters arguments regarding case law relative to the intent to discard have been addressed in previous rulemakings.  See 76 FR 15462-64.  The Agency does not agree with the commenter's claim that the record before the Agency demonstrates that OTRTs are not discarded. As stated in section III. D. of the preamble, elevated levels of contaminants remaining in the material can indicate that the material does not meet legitimacy criteria and is being discarded. While the Agency recognizes that other relevant factors may be considered when one of the legitimacy criteria are not met, there is a limit to the levels of contamination allowed in balancing other relevant factors with the legitimacy criteria to determine whether discard occurs.

The commenter's request for EPA to initiate a rulemaking to remove the designed-to-burn limitation for the existing categorical non‐waste listing for CTRTs is beyond the scope of today's rulemaking.

Other Limitations

Comment: (0020, 0022)

Existing unit/40 % limitation

Commenters argued that the proposed requirements that OTRTs can be used only in existing (construction commenced prior to April 14, 2014) combustion units designed to burn specific fuels, and only in amounts limited to 40% of annual fuel input, are not compelled by the legitimacy criteria as written.   Limiting the ability to use OTRTs as fuel for boilers built before an artificially selected date in 2014 prevents the environmentally beneficial use of biomass materials in facilities constructed after that date. One commenter (TWC) contended that the use of these materials is governed by CAA emissions limits and facility permits, and should not be subject to arbitrary limits that would preempt the judgment of permitting authorities. Any percentage cap on use of OTRTs is arbitrary and has nothing to do with whether a material is discarded.   One commenter requested that EPA remove these two restrictions from the limiting conditions in the proposed new section 241.4(a)(8).

One commenter took an opposing viewpoint arguing that the exception goes against EPA's own recognition that such units are not designed to burn fuels with contaminant levels that are comparable to the railroad ties at issue here, and thus, under EPA's rules, combustion of those railroad ties constitutes disposal, making the ties solid waste. The commenter further argued that the units can no longer burn oil, and their past activities are entirely irrelevant because the railroad ties are unquestionably dirtier than any traditional fuel these boilers physically can burn. The commenter also added that the exception undermines one purpose of the boilers' modification, which is to encourage combustion of cleaner materials. Lastly, the commenter contended that the exception strains the meaning of "discarded" by making the "discard" status of a material hinge on whether the unit that burns the material at some point in the past used to be able to burn a comparable material, even though it no longer can burn it.

Response:

The regulations that establish EPA's process for making categorical non-waste determinations require consideration and balancing of numerous factors. Overall, non-waste determinations can result in the use of alternative fuels that reduce the use of scarce, virgin fuels; reduce the importation of fuel; reduce dumping; and lower methane gas generation from landfills (regarding use of alternative fuels see previous NHSM rules, e.g., 75 FR 31,844, 31,849 [Jun. 4, 2010] and 76 FR 15467 [March 21, 2011]).   With a categorical non-waste determination, persons combusting NHSMs do not need to evaluate them under the general case-by-case standards and procedures that would otherwise apply.   That purpose is reflected in the creation of the petition process ,40 CFR 261.4(b), and the allowance of consideration of other relevant factors, 40 CFR 261.3(c)(1)(v). Concurrently, categorical non-waste determinations occur within specifically enumerated parameters intended to ensure that use of NHSMs as fuel does not constitute discard. 40 CFR 261.3(c), (d).

In an effort to strike that balance, these regulations allow certain units that have switched from fuel oil to natural gas to combust OTRTs treated with creosote mixtures as non-wastes within certain limits. The Agency has determined that such units should not be penalized for switching to a cleaner fuel and that OTRTs do not become wastes solely because of the switch to natural gas. Information received by the Agency indicates that OTRT, like CTRTs, are an important part of the fuel mix because of the consistently lower moisture content and higher Btu value.  The Agency believes it appropriate to balance other relevant factors in this categorical non-waste determination and to decide that the switching to the cleaner natural gas would not render these materials a waste fuel.

The approach falls within the parameters of the non-waste determinations that ensure discard is not occurring. This approach is not, however, 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.  Data available to EPA based on the earlier CTRT categorical non-waste determination indicated that CTRTs comprised no more than 40 percent of the fuel used on an annual heat input basis. Considering that CTRTs have elevated contaminant levels compared to biomass and natural gas, allowing fuel usage percentage greater than the usage that industry had previously used could be indicative of discard. Thus, EPA concluded that the 40% level constituted a reasonable condition for the categorical non-waste determination. 81 Fed. Reg. 6733. For purposes of this rulemaking, EPA has also concluded that fuel usage of CTRTs and OTRTs, beyond the historical levels, could be indicative of discard. (Information from industry indicates that increased use of OTRTs will displace CTRTs. See letter from Treated Wood Council docket # EPA-HQ-RCRA-20`13-0110-0056) As a result, EPA is maintaining the 40 percent limit in this rulemaking. Similarly, the limitation on existing units whose construction commenced prior to April 14, 2014, i.e., the date of the CTRTs proposal, seeks to ensure the prevention of discard based on historical usage. 

Finally, the Agency disagrees with the argument that the use of these materials is governed by CAA emissions limits and facility permits, and should not be subject to limits that would preempt the judgment of permitting authorities. The NHSM determinations regarding waste and non-waste under RCRA address materials prior to combustion and is not based on permit emission limits and requirements after combustion.

Comment: (0020)

Storage times

One commenter (TWC) stated that EPA should not impose the proposed one‐year storage limitation on OTRTs or other railroad ties, claiming that a prohibition on storage of railroad ties in a railroad right‐of‐way or other location for more than a year would have adverse impacts on long‐established, responsible materials management practices that are based on safety and proper railroad maintenance concerns.

The commenter explained that there are compelling reasons require allowance for a longer period of storage if necessary with respect to rail ties. Specifically, the commenter noted that, unlike other facilities from which valuable secondary materials are reclaimed, railroads extend over thousands of miles. The commenter explained that sections of track are replaced as needed, setting aside ties meant for reclamation, which are collected when crews and equipment can get to these locations. The commenter further explained that many locations where ties are removed are not readily accessible except by rail, and tie pickup must compete with higher‐priority needs, such as safety‐related operations like track maintenance and inspection. Additionally, the commenter pointed out that the gondolas used for tie pickup are also used for other railroad work, limiting the equipment that is available to pick up ties.

The commenter argued that it is not feasible to ensure that all ties that are taken up, bound, and stored can be date‐tracked and recovered within a year. The commenter contended that rail ties collected and processed for fuel recovery within a year are equally as valuable as fuels as those that may take longer to reclaim, emphasizing that in both cases the materials are not discarded. 

The commenter requested that, should EPA decide to propose a time limit, it should afford railroads two years and provide for a three‐year phase‐in period to permit the industry to develop practices and procedures that would enable the railroads to comply.

Response:

The Agency recognizes that the reasonable timeframe for storage may vary by industry. We conclude, however, that OTRTs removed from service that may be stored in a railroad right of way or other 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 land filled) shows that the material has been discarded and is a solid waste (see the preamble discussion of discard 76 FR 15463 in the March 21, 2011 rule). The assertion that the OTRTs are a valuable commodity in a robust market does not change the fact that the OTRTs can be discarded at some point. NHSMs may have value in the marketplace and still be wastes.  The rule does not impose a specific storage time limit and is not intended to impact any ongoing materials management practices.   The fact that in a few cases OTRTs may be stored for less than a year   before a decision regarding their end use is made would not change the overall determination that the OTRTs have been discarded.
     Table 1. Commenters, Comments Addressed in the Preamble
     
     Commenters
     
     Document ID Number
     Commenter Affiliation
     Commenter Name
     EPA-HQ-OLEM-2016-0248-0020
     Treated Wood Council, American Forest & Paper Association (AF&PA), American Wood Council (AWC), Biomass Power Association (BPA), Hardwood Federation, Railway Tie Association
     
     Jeffrey Miller
     EPA-HQ-OLEM-2016-0248-0021
     Earthjustice
     Seth Johnson
     EPA-HQ-OLEM-2016-0248-0022
     Council of Industrial Boiler Owners
     Robert Bessette
     EPA-HQ-OLEM-2016-0248-0023
     Portland Cement Association
     Michael Schon
     
     Comments Addressed in the Preamble
     

       Document ID Number
         Commenter Affiliation
       Commenter Name
De Minimis Levels of Creosote
EPA-HQ-OLEM-2016-0248-0020
Treated Wood Council, American Forest & Paper Association (AF&PA), American Wood Council (AWC), Biomass Power Association (BPA), Hardwood Federation, Railway Tie Association

Jeffrey Miller
Inclusion of Coal
EPA-HQ-OLEM-2016-0248-0020
Treated Wood Council, American Forest & Paper Association (AF&PA), American Wood Council (AWC), Biomass Power Association (BPA), Hardwood Federation, Railway Tie Association

Jeffrey Miller



Sampling and Data Quality Concerns


EPA-HQ-OLEM-2016-0248-0020
Earthjustice
Seth Johnson
Additional Data for Copper and Borates Literature Review


EPA-HQ-OLEM-2016-0248-0020
Earthjustice
Seth Johnson

