Summary of Public Comments and 

Responses for Non-Hazardous Secondary 

Materials That Are Solid Waste: 

Additions to List of Section 241.4 Categorical NonWaste Fuels
January 2016

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

U. S. Environmental Protection Agency

Office of Resource Conservation and Recovery

Materials Recovery and Waste Management Division (MC 5304P)

Washington, DC
i

Table of Contents

A. Construction and Demolition (C&D) Debris..............................................................1

1. Description/Definition ................................................................................................1

2. C&D Wood Processed from C&D Debris According to Best Management 

Practices......................................................................................................................2

3. Resinated Wood..........................................................................................................4

4. CCA-treated Wood .....................................................................................................4

5. Trained Operators.......................................................................................................5

6. Written Certification...................................................................................................6

7. Cement Kilns Using Processed C&D Wood ..............................................................7

B. Paper Recycling Residuals (PRRs).............................................................................8

1. Other Discarded Materials..........................................................................................8

2. Expansion to Include PRRs Burned Off-site ..............................................................9

C. Creosote-Treated Railroad Ties (CTRTs)...................................................................9

1. Description/Definition ................................................................................................9

2. Scope (‘Designed To Burn’ Issue)............................................................................16

3. Rationale for Proposed Listing .................................................................................19

4. Specific Requests for Comments..............................................................................27

5. Cement Kilns Using CTRTs.....................................................................................32

D. Cement Kilns: General..............................................................................................34

E. Technical Corrections and Clarifications .................................................................36

F. Effects on Other Programs........................................................................................37

G. Statutory and Executive Order Reviews – Paperwork Reduction Act .....................37

H. Other .........................................................................................................................38

1. Outside the Scope of the NHSM rulemaking ...........................................................38

2. General Support/Opposition .....................................................................................38
ii

INDEX OF COMMENTS COVERED IN THE PREAMBLE 45

Table 1. Comments Addressed in the Preamble 46
1

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 those comments and responses presented in the preamble to the final 

rule by topic and preamble section.

A.Construction and Demolition (C&D) Debris

1. Description/Definition

0076.1

We agree with EPA’s observation that “much of the C&D wood recovered from construction activities is 

unused and untreated, thereby falling under the definition of ‘clean cellulosic biomass.’” 79 Fed. Reg. at 

21011. That material is not classified as a non-hazardous secondary material and is not subject to 40 CFR 

Part 241. However, we also agree that a mixture of material obtained from construction sites and 

demolition sites would be considered a non-hazardous secondary material subject to Part 241.

Response: The Agency thanks the commenter for their feedback.

0079

The Kentucky Waste Management Division supports including wood that is recovered from disaster 

debris, but that is mixed with other contaminated materials prior to arrival at the processing facility, as 

processed C&D wood and eligible for the categorical non-waste listing as outlined in the proposed rule.

Response: The Agency thanks the commenter for their feedback.

0087

NHPC has used construction and demolition (C&D) wood as one of its wood fuels in its boilers since the 

units began operating in 1996. This rule has the potential to result in severe economic impacts on NHPC 

if the Facility can no longer burn C&D wood, requiring the replacement of this material with other wood 

fuels or significant additional fossil fuel usage, and possibly causing the shutdown of the Facility based 

on economics or limited wood fuel supply.

EPA’s decisions and final rule may affect the validity of many current and well established industry fuel 

usage and recycling practices. It may also affect NHPC’s future ability to increase efficiency and reduce 

energy costs, reduce greenhouse gas emissions, and reduce other environmental burdens such as land 

disposal costs. NHPC will be unable to burn, for energy recovery, those materials that EPA labels as 

“wastes,” due to the regulatory and public relations burdens of being re-permitted as solid waste 

incinerators.

As our country attempts to achieve energy independence, reduce greenhouse gases, and reduce fossil-fuel 

consumption, it is imperative that legitimate fuels not be regulated in a manner that would thwart these 

national goals. Regulating legitimate fuels as solid waste will impose unnecessarily stringent and costly 

environmental standards without providing commensurate environmental benefits. These issues are 
2

particularly important to NHPC because NHPC has been utilizing recycled wood fuel for its cogeneration 

steam boilers for almost 20 years, while utilizing less than 15 percent fossil fuels on an annual basis. 

Using recycled wood fuel has allowed NHPC to minimize its consumption of fossil fuels and thus 

minimize its emissions of non-biogenic greenhouse gases.

Response: The Agency thanks the commenter for their feedback. The commenter’s concerns 

regarding continued use of C&D wood in their boilers are addressed in section V.A. of the 

preamble to the final rule. This comment, however, only provides a very general discussion 

without providing the specifics needed by EPA to make its categorical determination. 

2. C&D Wood Processed from C&D Debris According to Best 

Management Practices

0094

WM supports the EPA’s proposed management practices for ensuring sufficient processing to produce a 

legitimate fuel.

Response: The Agency thanks the commenter for their feedback.

0076.1

We agree with EPA that some processing facilities receive clean, pre-sorted, material. 79 Fed. Reg. at 

21011 (noting that in some cases there is "material segregation prior to arrival at the processing facility").

Response: The Agency thanks the commenter for their feedback.

0083.1

We note that under EPA’s proposed regulatory language operators at facilities that process material that is 

positively sorted must still be trained to remove unwanted material. We request EPA to confirm that 

removing unwanted materials from positively sorted wood does not turn a processor into a negativesorting facility.

Response: We agree with the commenter, and as discussed in the preamble, have revised the best 

management practice description with respect to lead elimination requirement for positive sorters to 

include facilities “...that receive and process positive sorted C&D wood”. These facilities are not 

subject to fines removal. See section V.A.3. (Lead Elimination Requirements) of the preamble to the 

final rule and revised 40 CFR 241.4(a)(5)(i).

0073

We are also writing to express our concern about an unnecessary and costly provision contained in the 

proposed rule. This provision would require C&D wood processing facilities like ours, which use 

negative sorting methods, to install and operate expensive equipment to remove fines from the 

construction and demolition wood that we process into boiler fuel. We respectfully request that EPA 

remove this burdensome requirement.

American Reclamation Inc. is a small business employing 20 workers. For the last 5 years we have 

operated what is known under California regulations as a chipping and grinding facility located in Los 

Angeles, California (near Atwater Village). Each year our facility processes up to 3000 tons of green 
3

material into (mulch? and) boiler fuel. This includes about 2100 tons of construction and demolition 

wood. We provide our boiler customers with a steady supply of clean fuel meeting their environmental 

and fuel quality specifications, and at the same time serve as an important outlet to our local community 

of small businesses, contractors, homeowners, and drop-off centers who recover and recycle C&D wood 

and other green materials that would otherwise be disposed.

We operate under a chipping and grinding operations facility permit issued by CalRecycle, receiving both 

green wood (clean cellulosic biomass) and source separated C&D wood. CalRecycle regulations require 

that all wood we receive meet a cleanliness standard, containing no more than 1% contaminated materials 

such as metal and plastics. In particular, the green material we receive does not include lead-painted 

wood, treated wood such as CCA wood or mixed C&D debris. In accordance with our permit, we inspect 

the C&D wood using trained operators and remove the small amounts of residual contaminants such as 

treated wood pieces and other materials unacceptable to our customers (how -- by hand?). We then grind 

(shred?) the clean wood to meet our customers' fuel size specifications.

Since we remove the residual contaminants using a negative sorting method the proposed regulations 

would require us to screen the C&D wood to remove fines. We object to this requirement. First, fines 

removal is unnecessary. The C&D wood we receive has already been separated from the mixed C&D 

materials and contaminants — including fines which may contain lead and other metals — are not present 

in meaningful amounts. So there is no reason to separate fines. Second, the requirement is costly, 

requiring us to purchase and install automated screening and material handling equipment costing several 

hundred thousand dollars. We would also have to pay for additional labor to operate and maintain the 

equipment. Overall, costs would increase about $30 for each ton of C&D wood processed.

Because the fines removal is both unnecessary and costly, we urge EPA to delete the fines removal 

requirement for C&D processing facilities that process only C&D wood that has been source separated as 

is here in California.

Response: We agree with the commenter that chip and grind processors should not be considered 

negative sorting facilities when they conduct further sorting to remove small amounts of unwanted 

materials. As discussed in the preamble, we have revised the best management practice description 

with respect to lead elimination requirement for positive sorters to include facilities “...that receive 

and process positive sorted C&D wood”. These facilities are not subject to fines removal. See section 

V.A.3. Lead Elimination Requirements of the preamble to the final rule and 40 CFR 241.4(a)(5)(i).

0071

Best Management Practices:

The proposed amendment to 241.4(a), which adds C&D wood to the list of non-waste determinations for 

specific non-hazardous secondary materials when used as fuel, states, in part: 

(5) Construction and demolition (C&D) wood processed from C&D debris according to best 

management practices. Combustors of C&D wood must obtain a written certification from the 

C&D processing facilities that the C&D wood has been processed by trained operators in 

accordance with best management practices. Best management practices for the purposes of this 

categorical listing must include sorting by trained operators that excludes or removes the 

following materials from the final product fuel... (FR page 21033, emphasis added)

The DNR recommends that EPA revise the first sentence in paragraph 5, above, to clarify that C&D 

wood has been processed by trained operators in accordance with best management practices as 
4

specified in 40 CFR 241(a)(5) (emphasis added). Although the best management practices are 

explained in the next sentence of paragraph (5), adding the rule citation makes clear that the best 

management practices for C&D wood are set forth in the rule.

Response: Citations such as the commenter suggested generally refer to other sections or parts of the 

regulations. The Agency has determined that the suggested change would not provide additional 

clarification to the regulatory provision. 

3. Resinated Wood

0079

The division supports the Agency's proposal to include processed resinated wood components as a 

NHSM.

Response: The Agency thanks the commenter for their feedback. The final rule allows resinated wood to 

remain in C&D wood prior to processing for this categorical non-waste listing, providing flexibility for 

processors to choose whether they will exclude or remove any resinated wood prior to processing the 

C&D debris. Please see preamble sections V.A.4.b.iii and V.A.6.d.ii of the final rule for further 

discussion. 

0085

EPA should retain the inclusion of resinated wood in the definition of C&D debris. Resinated wood is a 

valuable fuel commodity that is legitimately used for energy recovery by CIBO members. This use 

provides strong economic, environmental, and societal benefits. Therefore, resinated woods are properly 

classified as biomass, not waste, such that they may continue to be appropriately used as fuel. Because 

EPA already has identified resinated wood materials as non-waste fuel, there should be no concern with 

inclusion of such materials in C&D biomass residuals. Resinated wood NHSM fuel is a standalone fuel 

and since its invention has constituted a subset of C&D biomass residuals.

Response: The final rule allows resinated wood to remain in C&D wood prior to processing for this 

categorical non-waste listing, providing flexibility for processors to choose whether they will exclude or 

remove any resinated wood prior to processing the C&D debris. We note that, although the situation 

appears similar to the categorical non-waste listing for resinated wood in 40 CFR 241.4(a)(2), details 

surrounding use of the two NHSMs as fuel are not the same. In the case of resinated wood, as defined in 

40 CFR 241.2, the Agency determined that energy recovered from the combustion of manufacturing 

process residues and off-specification resinated wood is integrally tied to the industrial production process 

in the furniture manufacturing industry. Please see sections V.A.4.b.iii and V.A.6.d.ii of the preamble to 

the final rule for further discussion. 

4. CCA-treated Wood

0079

The division (MPCA) prefers extensive training for visual identification over XRF technology as the 

minimum standard. The processor in the Agency's example from Florida showed 89% and 90% correct 

identification. 
5

Response: The Agency agrees that the requirement to train operators to exclude or remove CCAtreated wood is the most appropriate option for doing so and has finalized this as part of the best 

management practices and as a separate training requirement at 40 CFR 241.4(a)(5)(iii). See 

section V.A.6.d.iii of the preamble to the final rule for additional discussion.

5. Trained Operators

0072

Similar to the waste combustion rules, the MPCA believes that the Agency is in the best position to develop 

a training protocol, with specific topic areas to be addressed, for the operator training. Facilities would then 

develop their own site specific training materials as based on the Agency protocol for their materials.

Response: We disagree that the elements of a training program for processors should be prescribed by the 

Agency for the C&D processing industry. The Agency’s decision to not prescribe specific elements of a 

training program is based on information in the record that discusses the variability within the C&D 

processing industry and the ability of trained operators to remove the waste materials from the incoming 

C&D debris (79 FR 21013). Variability refers to the origin of the material, the amount of material 

segregation prior to arrival at a processing facility, whether positive or negative sorting is used, and the 

scale of the processing facility. 

Rather than prescribing training requirements that may not be applicable to all C&D processing facilities 

(i.e., a “one size fits all” approach), the better option is to provide flexibility for processors to choose how 

to train their operators. The Agency has determined that the regulatory language finalized at 40 CFR 

241.4(a)(5)(iii) provides the flexibility needed, but also ensures that C&D processing facilities have trained 

their operators in accordance with the best management practice requirements such that the resultant 

material is not discarded when combusted and is, therefore, not a waste. See preamble section V.A.6.d.iv

of the final rule for further discussion.

0079

The division supports the agency decision to require a training program for operators sorting undesirables 

from construction and demolition material.

Response: The Agency thanks the commenter for their feedback.

0085

CIBO believes that training processors to remove certain materials would provide sufficient certainty of 

removal of lead-based painted wood and other undesirable materials. However, CIBO does not support a 

strictly defined training program for the processors. Instead, processors should be free to design training 

programs that work for the individual processor. Because training should suffice to ensure the purity of 

C&D wood, CIBO encourages EPA not to impose additional substantial sorting or technology 

requirements upon C&D facilities.

Response: We agree with the commenter that, due to the variability within the C&D processing industry, 

the better option is to provide processors with flexibility to choose how to train their operators. Please see 

response to previous comment 0072 for additional background.
6

6. Written Certification

0072

The MPCA has had compliance issues in the past five years at facilities with combustion units that were 

permitted to use only clean, unadulterated wood as a fuel source. Somewhere in the wood fuel supply 

chain for these facilities, prohibited wood products were introduced and were not identified prior to being 

used at the facility. In one instance, elevated levels of metals were found in the facility's ash. This case was 

particularly concerning because the facility was petitioning the MPCA for permission to use the ash as a 

fertilizer. Accordingly, the MPCA has had to take enforcement action when contaminated wood products 

were unknowingly combusted. The MPCA is concerned about opening up this fuel stream, as proposed, 

specifically about the increased possibility of facilities receiving contaminated wood products as fuel.

Accordingly, the MPCA recommends that an independent third party routinely sample the processed 

construction and demolition (C & D) materials at the C & D processor's facility. The MPCA further 

recommends that having an ongoing independent third party sampling program as a requisite for C & D 

processor certification. The MPCA believes that this is necessary for the State and citizens to have adequate 

assurance that the contaminated material has been removed from the fuel stream, to allow the 

construction and demolition debris to become a legitimate non-waste fuel product.

Response: Although a third party sampling program could provide further assurance that contaminated 

material has been removed from the fuel stream, the Agency cannot promote such a requirement for 

combustors given the data which supports this categorical non-waste listing for processed C&D wood. 

The data demonstrate that processors using best management practices are meeting the legitimacy criteria 

absent a regulatory requirement. The extent to which some processors may not be meeting the legitimacy 

criteria is remedied by imposing the conditions for certification and training to identify contaminated 

materials in the rule. The Agency has determined that application of the best management practices at 40 

CFR 241.4(a)(5), the written certification, and training record provides sufficient assurance. For further 

discussion see section V.A.6.d.v. of the preamble to the final rule.

0076.1/0083.1/0100

In general, we support EPA’s proposal to require a combustor to obtain a written certification from the 

C&D processor that the C&D wood has been processed by trained operators in accordance with best 

management practices. 

We also agree that written certification would meet the record keeping requirements for combustors that 

combust NHSMs under sections 60.2740(u) (Emissions Guidelines) and 60.2175(w) (New Source 

Performance Standards) for CISWI units and sections 63.11225(c)(2)(ii) for area source boilers and 

63.7555(d)(2) for major source boilers. This is consistent with how EPA allows combustors of tires to 

document that tires are non-wastes under 40 C.F.R. 241.4(a)(1). See 76 Fed. Reg. 28318, 28322 (May 17, 

2011).

Response: The Agency thanks the commenters for their feedback.

0094

We support the proposal to require the combustor of C&D wood fuel to obtain a written certification from 

the C&D processor that trained operators have processed the materials in conformance with the best 
7

management practices. This requirement is consistent with the recordkeeping requirements of the 

“CISWI” and Boiler MACT” Rules. Further, it will offer combustors additional comfort beyond their 

own quality assurance checks of facilities and fuel. We also agree that EPA need not prescribe the format 

of such written certification. WM customers typically provide definitive specifications, which are 

incorporated into purchase agreements or contracts. These specifications align with the best management 

practices that EPA has proposed.

Response: The Agency thanks the commenter for their feedback. As discussed in section V.A.6.d.v of 

the preamble of the proposed rule, we requested comment on whether a written certification 

statement, in addition to the contract/purchase agreement, would be clearer and more effective. 

Although we agree that contracts and purchase agreements indicate a commitment to quality, 

specifications can vary according to the needs of one combustor versus another with respect to 

the extent and type of contaminant removal required. More importantly, the contracts and 

purchase agreements that the Agency has seen do not show that C&D wood has been processed 

according to any particular best management practices and, consequently, cannot ensure that the 

resulting material is a waste. As a result, we are requiring combustors to obtain a written 

certification statement from the final processor as part of every new or modified contract, 

purchase agreement, or other legally binding document. This written certification statement must 

state that the processed C&D wood has been sorted by trained operators in accordance with best 

management practices. See 40 CFR 241.4(a)(5)(iv).

7. Cement Kilns Using Processed C&D Wood

0081

PCA supports EPA's approach of balancing contaminant levels with other fuel-enhancing characteristics. 

The EPA has decided that slightly elevated formaldehyde levels in the resinated wood components of 

C&D debris are balanced by the greater heating value and more consistent moisture content in resinated 

wood, therefore meeting the legitimacy criteria. PCA notes that for cement kilns, the level of 

formaldehyde in the C&D debris is well within the cement industry traditional fuel grouping for VOCs. 

(Table I at the end of this commenter’s document provides data on traditional fuels for comparison; the 

data are based on the contaminants found in the traditional fuels utilized in cement kilns — coal, coke, 

wood, natural gas, and fuel oil).

Response: The Agency has determined that the additional factors discussed in the proposal are 

appropriate for determining whether the resinated wood in certain limited circumstances is actually a 

product fuel. The final rule, therefore, allows processors to choose whether they will exclude or remove 

any resinated wood and still be permitted to be within the categorical non-waste listing for C&D debris. 

See section V.A.4.b.iii and V.A.6.d.ii of the preamble to the final rule for further discussion regarding 

formaldehyde levels and the additional factors.

Also, when evaluating whether an NHSM can be a legitimate product fuel, discard (i.e., if the material has 

been discarded in the first instance, then it must be sufficiently processed) and the legitimacy criteria are 

the determinants, not the capabilities of the unit burning the NHSM. This final rule applies to cement kilns, 

as well as all other facilities that wish to burn processed C&D wood for reasons discussed in the rule. Thus, 

cement kilns that wish to take advantage of the categorical non-waste listing for C&D wood under section 

40 CFR 241.4(a)(5) must meet all of the conditions in the rule regardless of the unit’s capabilities. Cement 

kilns may also proceed on a case-by-case basis, but would need to determine whether the processed C&D 
8

wood has been sufficiently processed per section 40 CFR 241.2 and whether the legitimacy criteria have 

been met per section 40 CFR 241.3(d). See section V.A.6.e. of the preamble to the final rule for further 

discussion.

0081

Training programs for processors should be as flexible as possible. EPA has requested comment on 

whether formal training programs should be required as part of Best Management Practices (BMP) for 

C&D processors, as well as comment on training program requirements that would be flexible enough to 

address variability of debris but still provide acceptable assurances on contaminant levels.

The cement industry is the end user of alternative fuels and does not dictate how the processing industry 

functions. However, we maintain that flexibility (versus formal training programs) with documentation as 

dictated by the proposed rule will allow the rule to be utilized in a manner that recognizes the range of 

processors and processing techniques.

Response: We agree with the commenter that, due to the variability within the C&D processing industry, 

the better option is to provide processors with flexibility to choose how to train their operators. Please see 

response to previous comment 0072 in Section 5. Trained Operators of this document for additional 

background. 

0081

Cement kilns are fully capable of utilizing C&D (construction and demolition) wood categorical non-waste 

fuels and meeting legitimacy criteria. Cement kilns should be specifically identified as an acceptable enduser of this fuel.

Response: Again, when evaluating whether an NHSM can be a legitimate product fuel, discard (i.e., if the 

material has been discarded in the first instance, then it must be sufficiently processed) and the legitimacy 

criteria are the determinants, not the capabilities of the unit burning the NHSM. See previous response to 

this issue above. See also preamble to the final rule, section V.A.6.e.

B. Paper Recycling Residuals (PRRs)

1. Other Discarded Materials

0081

PCA supports a flexible approach to determining what constitutes "processing" of non-waste fuels. The 

EPA asks for insight on other materials such as OCC rejects that contain "other foreign materials," giving 

the example of cardboard boxes that are not completely empty. The Agency asks if this is a common 

practice, and whether EPA should impose additional conditions.

As with the other categorical non-waste fuels, PCA believes that the processing steps to remove 

contaminants for OCC rejects will depend upon the requirements of the end-use combustion unit. There is 

variation in the capabilities and other environmental restrictions of facilities capable of using PRR 

categorical non-waste fuels, and cement kilns in particular generally have the ability to use a wider 

variety of fuels. These materials have great value to the energy intensive cement industry, which manages 

alternative fuels as valuable commodities. Processing needs to be flexible and appropriate to the receiving 

combustion unit. Because the nature of combustion unit design and operation is not uniform, non-waste 

fuel processing must be flexible and appropriate for the receiving combustion unit.
9

Response:

The Agency disagrees that the presence of foreign materials in OCC rejects undergoing recycling should 

depend upon the requirements of the end-use combustion unit. Combustion of such materials remaining in 

the PRRs after recycling constitute burning of a solid waste; and as such, units burning those materials 

would be subject to CAA section 129 standards. The fact that the material may have fuel value does not 

mean such materials would be considered non-wastes. Waste materials may have fuel value as do nonwaste materials.

Information received from commenters states that inspection practices prevent the introduction of other 

discarded materials and are standard practice. Based on that information, and examination of the few 

cases in the boiler database of foreign materials present in OCC rejects undergoing recycling, the Agency 

has concluded that such situations are incidental, and no specific conditions to ensure the containers are 

empty are warranted, other than to describe the incidental contamination as part of the categorical listing. 

The Agency reiterates, however, that the combustion of discarded materials in PRRs would result in the 

application of the CAA section 129 standards. See preamble section V.B.6.a.ii for further discussion

2. Expansion to Include PRRs Burned Off-site

0089

On FR Page 21028 in V.B.5 of the proposed amendments, the agency requests information for PRRs that 

are burned off site. There is at least one example of a co-gen that will be utilizing the existing power 

island at a pulp and paper mill, while being considered a separate source. The power island will be 

managed to current practices, but has a Power Purchase Agreement (PPA) for power generation to be sold 

and to provide steam to the existing mill. We would not consider this off site for the purpose of this 

discussion.

Response: We disagree with the commenter’s inference that the existence of a contract (i.e. PPA) 

between a pulp mill generator of PRRs and an offsite co-gen plant that may combust PRRs and provide 

energy back to the generator should not be considered combustion of PRRs by an offsite source. Under 

the final rule, the PRRs can be combusted onsite or at a facility within the pulp and paper industry.1 As 

previously stated (78 FR 9160), the Agency disagrees that the mere existence of such contracts between 

the generator and combustor should be considered dispositive evidence that the NHSM is not a waste and 

is combusted for energy recovery, not disposal.

C. Creosote-Treated Railroad Ties (CTRTs)

1. Description/Definition

a. Supporting Details Regarding Use of CTRTs/Use in Biomass Boilers 

 

1 To be considered onsite, the material must be generated and burned in combustion units at the generating facility; 

or where such material is generated and burned in combustion units at different facilities, the facility combusting 

the NHSM must be controlled by the generator; or both the generating facility and the facility combusting the 

nonhazardous secondary material must be under the control of the same person (see definition of within control of 

the generator section 241.2.
10

0075

The combustion of biomass in lieu of traditional fossil fuels is supported by the EPA as a viable climate 

change mitigation strategy, as recently outlined by the Agency (See preamble to “Carbon Pollution 

Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Plants” [Docket ID No. 

EPA‐HQ‐OAR‐2013‐0602, proposed rule released June 2, 2014]). In addition to the benefits of climate 

change mitigation, the repurposing of CTRTs for combustion in biomass boilers provides additional 

environmental benefits including lower carbon monoxide (CO) and opacity emissions due to higher 

combustion temperatures resulting in more complete combustion. As such, one would expect that the 

Agency would not wish to limit the use of this beneficial fuel source. Approximately 17 million railroad 

ties are generated each year through routine replacement by the nation’s railroads. Of these, more than 11 

million railroad ties per year are available to be used as fuel in power boilers. In this proposed 

rulemaking, EPA has placed extremely narrow qualifications on the CTRTs that may be considered non‐

waste fuel. As a result, this rulemaking puts the Viking Energy of McBain and Lincoln biomass facilities 

at risk of potential future shutdown and could prohibit reactivation of the Pennsylvania facility.

The proposed non‐waste listing for CTRTs is too narrow because EPA, in the proposed rule, is strictly 

applying the designed to burn and contaminant comparison criterion. Such a strict application will render 

a legitimate fuel which has been used for decades in the U.S. a waste, thereby causing the sources 

combusting this fuel to make difficult business decisions for no environmental benefit. It is GSEGNA’s 

hope that EPA will take into consideration these impacts by balancing the legitimacy criteria with other 

relevant factors and list CTRTs a categorical non‐waste fuel.

0076.1

The ability to continue to combust CTRTs is important to the economic viability of all CTRT combustors. 

Eliminating the use of CTRTs is likely to bring economic hardship to these facilities as they may (i) be 

unable to procure a substitute fuel, or (ii) face higher fuel prices given their inability to diversify their fuel 

supply.

For those facilities that are able to remain in business, restricting CTRT combustion is likely to result in 

an increase in the use of fossil fuel, such as coal. 

0076.1/0083.1

In addition, eliminating the use of CTRTs will disrupt existing markets for CTRT, and send millions of 

CTRTs to solid waste landfills, erasing years of efforts to find higher uses for these materials.

Those facilities that are not able to afford replacement fuel will shut down, eliminating a source of carbon 

neutral energy and eliminating facilities that are needed to manage agricultural biomass, forest biomass, 

and urban wood.

0076.1, 0083.1

Biomass boilers operated by BPA members are currently permitted to combust over 650,000 tons a year 

(with additional use projected). Of this amount, only about 270,000 tons are combusted in facilities that 

currently use fuel oil. However, the use of fuel oil is for start-up. About 71,000 tons are permitted to be 

combusted in a boiler that was converted from fuel oil.

Another 270,000 tons is combusted in boilers that are currently or soon will be permitted to combust 

railroad ties in boilers that have been converted from coal to biomass.
11

When an energy generating facility is converted from coal to biomass, there is a reduction in steam 

generation capacity as compared to original design. This is due to the fact that biomass has roughly 30 

percent of the Btu content of most types of coal. Biomass also has a much higher moisture content, which 

causes capacity limitations. These limitations include reduced heat exchange rates throughout the boiler 

components, as well as flow constraints with the flue gas system due to higher volumes and mass flow. In 

order to maintain at or near design rating for the boiler, a portion of higher Btu fuel, such as CTRTs, is 

incorporated into the fuel mix.

Combustion of CTRTs is environmentally preferable to the use of fossil fuels. According to a life cycle 

analysis of alternative end of life uses of CTRTs, each tie used for energy results in a net offset of carbon 

dioxide emissions of approximately 249 pounds and if all railroad ties were recycled for energy use, the 

result would offset the greenhouse gas and fossil fuel use equivalent to a city of nearly 100,000 people 

[Stephen Smith and Chris Bolin, Creosote-Treated Ties, End-of-Life Evaluation (Feb. 18, 2010) (EPAHQ¬RCRA-2013-0110-0044)]. Finally, there are a number of other boilers used at biomass power 

facilities and in the forest products industry that have never combusted oil or coal. The facilities we have 

identified are permitted to combust over 190,000 tons of CTRTs a year [footnote: The CTRT use data in 

these comments are from use within the forest products and biomass power industries only. EPA also has 

information in the record showing that a variety of other industry sectors currently combust railroad ties, 

including utilities and chemical manufacturing facilities. 79 Fed. Reg. at 21022].

0077

From an environmental perspective, the burning of CTRTs should be encouraged. While approximately 

one-third of used ties are landscaped, there does not appear to be an opportunity to increase that 

percentage significantly. Thus, the alternative to burning CTRTs for energy is to landfill them. The 

landfilling of CTRTs would take up a football field 70 stories high – annually. If CTRTs are landfilled, 

there would be an increase in greenhouse gases (GHG), from methane emissions due to some anaerobic 

degradation and carbon emissions from decomposition. The burning of CTRTs, on the other hand, does 

not increase carbon emissions because the CTRTs displace other fuels. AAR estimates the GHG penalty 

if CTRTs are landfilled instead of burned will be 1.65 million tons of CO2eq annually. Furthermore, 

where CTRTs are burned the emissions comply with applicable emissions limits.

0083.1

Like C&D wood, processing to create railroad tie fuel is a significant commercial activity. We have two 

plants that are currently permitted to combust CTRTs. One is projected to burn between 90,000 - 110,000 

tons (1.1 - 1.5 million ties) in each of the next 5-7 years and another is expected to burn 40,000 - 50,000 

tons (500,000-650,000 ties) annually for the next 5-6 years. Additionally, we are in the final stages of 

permitting for a facility and expect to combust between 50,000 - 80,000 tons (600,000 - 1 million ties) per 

year for the next 10-12 years. Finally, we are anticipating to apply and receive a permit for a facility to 

combust up to 110,000 tons (1.5 million ties) annually for the next 12-15 years beginning in 2016.

Not being able to use CTRTs for fuel would result in the loss of between 25-35% of the total fuel 

requirement for our portfolio of biomass plants and will increase the amount of material going into 

landfills.

CTRTs along with C&D and Agricultural Fuel are an integral part of our overall fuel strategy. In areas 

where the competition for traditional fuels is fierce, the ability to combust CTRTs is even more important. 

Eliminating the use of CTRTs is likely to bring economic hardship to our facilities as they may (i) be 
12

unable to procure a substitute fuel, or (ii) face higher fuel prices given their inability to diversify their fuel 

supply.

0085

Biomass-derived energy is a key component of EPA’s strategy to reduce carbon emissions 30% by 2030. 

See “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating 

Plants,” Docket ID No. EPA-HQ-OAR-2013-0602, prepublication copy at 509, June 2, 2014. Yet some 

CIBO members that use CTRTs do not rely on or use fuel oil and would thus be considered to be burning 

solid waste if EPA finalizes the rule as proposed. This disincentive to burn a clean biomass product would 

be inconsistent with EPA’s vision of a reduced carbon future.

0093

The biomass power industry operates with mostly grid-connected standalone power plants that utilize 

organic materials in the production of energy. A Biomass Power Association survey determined that 20-

30% of the organic materials used in these facilities are CTWC. CTWC are valuable to these facilities 

because of their high BTU value, low moisture content and low ash. For these reasons, CTWC enhances 

boiler performance and efficiency. However, not all boiler facilities currently permitted to burn CTWC 

have fuel oil nozzles as one of their input fuel resources.

By failing to allow all facilities that conform to the existing rigid standards to burn this valuable 

commodity, inequities are created that will disrupt the economics of many of these facilities. The goal 

should be to enhance the economics of biomass plants by utilizing legitimate fuels such as CTWC, not 

erect artificial barriers to the production of biomass energy.

We urge EPA to balance the playing field for the biomass industry and modify the rule to allow all 

biomass plants that meet the standards for clean, safe and efficient burning of CTWC to continue 

utilization of the valuable resource, and in doing so allow the current infrastructure to operate 

uninterrupted and in an economically viable way.

Studies from the Treated Wood Council and the California Air Resource Board indicate that CTWC used 

as a biomass fuel results in negative GHG emissions. If the rule is not modified and thus creates an 

artificial and unwarranted barrier for a vast number of biomass plants to use CTWC, these well 

recognized carbon benefits for the industry and nation will be at risk.

0097

While ranging in size from 5 to 100MW, biomass facilities typically are located in rural areas where 

economic opportunities are few. It is not uncommon for a biomass facility to be the most significant 

employer in the community and also the largest taxpayer.

Below is a chart that summarizes available data on usage of RTF across the entire industry [see comment 

letter EPA-HQ-RCRA-2013-0110-0097]. It shows that as much as 815,000 tons are projected for use, at 

13 facilities in 7 states. While usage varies, one company estimates that 25 to 35% of its entire fuel source 

is expected to be derived from RTF. Like other forms of biomass, it is purchased by the ton. What makes 

the fuel attractive is its high btu value, low moisture content, and low ash. For these reasons, RTF 

enhances boiler performance and efficiency.

To illustrate the importance of RTF, consider available fuel supplies in the State of California. There are 

34 biomass facilities located throughout the state, often near timber harvest or agricultural operations. 

Most of these facilities were built immediately following the enactment of the federal Public Utilities 
13

Regulatory Policy Act (PURPA) of 1978, which required utilities to purchase power provided by 

qualifying independent power producers at an avoided cost basis, allowing plants to be built. The result 

was that over a relatively short period of time, the industry grew to approximately 19% of in-state 

produced renewable power.

Despite the success of the California biomass industry, there are numerous facilities currently closed. One 

contributing factor is economics. Like all renewable sources of power, biomass is forced to compete with 

historically low natural gas prices in a market that neither values baseload capacity nor adequately prices 

carbon benefits. But another factor, relevant to this rulemaking, is the industry’s ability to source adequate 

wood supplies.

As depicted in the chart below, historically California’s biomass industry relied upon sawmill and forest 

residue, i.e., traditional wood products. The most recent data made available from the California Biomass 

Energy Alliance suggests that both urban wood and agricultural residue are the leading sources of fuel.

For certain facilities located in areas of the state where these residues are not as easily sourced, the 

availability of RTF as a fuel may represent the difference between keeping the plant open or closed.

0097

Under EPA’s draft rule, a non-waste listing is restricted to facilities that have fuel oil delivery systems, or 

are paper mill facilities converted from oil to natural gas. Using the above data, that restriction would 

eliminate 69% of the facilities and as much as 78% of the fuel currently available for energy conversion.

The benefits of using RTF for energy are many and consistent with federal and state renewable energy 

policies. First, reducing carbon emissions in the production of energy is central to the Administration’s 

recently announced Clean Power Plan. RTF combustion does not utilize fossil fuel-based energy, which 

in the aggregate is responsible for one-third of all domestic GHG emissions, or tons of CO2 released into 

the atmosphere annually, per EPA (http://www2.epa.gov/sites/production/files/2014-

05/documents/20140602fs¬overview.pdf). If EPA’s stated goal of a 25% reduction in GHG emissions by 

2030 is to be realized, it needs to take every opportunity to encourage the use of organic materials like 

RTF.

Second, the use of non-forest based biomass for energy—as opposed to landfilling or other disposal 

method—has been universally encouraged, from EPA’s Biogenic Emission Framework (setting a 

Biomass Accounting Factor of “zero” for so-called “anyway emissions”) to the Agency’s implementation 

of the Renewable Fuel Standard (“renewable fuel produced from feedstocks consisting of wastes that 

would normally be discarded or put to a secondary use, and which have not been intentionally rendered 

unfit for productive use, should be assumed to have little or no land use emissions of GHGs”).

In fact, California’s Air Resource Board staff considers biomass in that state to be a negative carbon 

emitter, as documented in a staff analysis below—

California biomass conversion operations result in net negative GHG emissions. While these facilities 

result in direct GHG emissions (mostly as carbon dioxide) when biomass is burned, the majority of these 

emissions are biogenic, and not counted as discussed above. In addition, these facilities produce electrical 

power that results in avoided utility emissions that would come mostly from the combustion of fossil 

fuels such as natural gas. Finally, biomass that is not combusted in a facility may otherwise be landfilled 

or “open” burned, resulting in more GHG and criteria pollutant emissions. [P]reliminary estimates based 

on the facilities above indicate that biomass conversion facilities result in net negative GHG emissions of 
14

over 1 million MT CO2e, or -0.24 MT CO2e per ton of bone dry biomass. 

http://www.arb.ca.gov/cc/waste/biomassconversion.pdf

If facilities in California can no longer utilize RTF and force facilities to close, the well-recognized 

carbon benefits of the industry will be at risk.

Finally, it is appropriate to consider the economic disruption that will occur if the industry is unable to 

utilize RTF. We have shown that this fuel is critically important in states like California, and this factor is 

a relevant criterion in the evaluation of this fuel.

0102

A determination that these NHSMs are non-waste alternative fuels will avoid both interruption of 

economically important biomass fuel feedstock supplies and also a diversion of these materials to 

landfills, which would cause three types of negative environmental consequences. Not only would the 

volume of these materials quickly overwhelm scarce landfill capacity, requiring landfill expansion, but 

their unavailability as a fuel source will force combustion of fossil fuels in their stead, generating 

increased greenhouse gas (GHG) emissions. Additional GHG emissions, including methane gas, will 

result from anaerobic degradation and decomposition of these biomass materials, if they are 

inappropriately categorized as wastes and relegated to landfills.

0103

A robust market has developed for CTRTs in recent years. There are approximately 15 railroad tie 

recovery companies in North America with industry-wide revenue of $65-75 million. [Draft letter from 

Paul Noe to Administrator Jackson (Dec. 6, 2012) (EPA-HQ-RCRA-2008-0329-2009)]. The Agency 

notes that approximately two thirds of the approximately 17 million crossties removed from service each 

year are combusted for energy recovery (approximately 11.3 million ties, or 870,000 tons) and the 

remainder are discarded or used for landscaping. 78 Fed. Reg. at 21021. The Class I railroads recycle 

nearly 60 percent of their used ties for energy recovery with the remainder primarily recycled to other 

products, according to a 2008 report by the Railway Tie Association. In 2013, ReEnergy owned or 

operated facilities accounted for approximately 10% of the CTRT-to-energy market. The majority of 

CTRTs combusted at ReEnergy are accepted under a long-term contract that led to the establishment of a 

newly built CTRT processing facility to service the facility and reduce transportation costs.

The Agency has information in the record indicating that a variety of industry sectors currently combust 

railroad ties, including pulp and paper manufacturing, cogeneration plants, utilities, and chemical 

manufacturing facilities. 79 Fed. Reg. at 21022.

.The use of C&D and treated wood biomass for renewable energy offers many benefits, including less use 

of landfill capacity, reduced reliance on fossil fuels, lower greenhouse gas (GHG) emissions, a more 

diversified renewable energy portfolio, and support of the American forest products industry.

If CTRTs are considered to be non-wastes, the railroad tie recovery industry will continue to have a 

market for the use of this material as a valuable fuel product to generate renewable electricity or for use in 

the manufacture of a new product.

The rule, in its current form, would disqualify ReEnergy from accepting nearly 85% of its current CTRT 

fuel supply. This would cause substantial operational concerns, as ReEnergy would have difficulty 

replacing the CTRT with a high-Btu fuel that has similar handling and storage characteristics. At one 
15

ReEnergy-operated facility, in North Carolina, the CTRTs represent 40% of the facility’s energy input. 

The loss of that fuel would likely lead to the derating of the facility’s boiler and would jeopardize the 

economic viability of the facility.

Eliminating the use of CTRTs is likely to bring economic hardship to certain biomass power facilities as 

they may (i) face operational difficulties due to the loss of a high-Btu fuel; (ii) be unable to procure a 

substitute fuel, or (iii) face higher fuel prices given their inability to diversify their fuel supply. In 

addition, eliminating the use of CTRTs would create a disincentive for coal-to-biomass conversions; 

disrupt existing markets for CTRT; and send millions of CTRTs to solid waste landfills, erasing years of 

efforts to find higher uses for these materials.

Among the biomass power facilities that would meet with hardship are facilities that have converted from 

coal to biomass. Two of ReEnergy’s three CTRT-combusting facilities fall into this category. When an 

energy generating facility is converted from coal to biomass, there is a reduction in steam generation 

capacity as compared to original design. This is due to the fact that biomass has roughly 30% of the Btu 

content of most types of coal. Biomass also has a much higher moisture content, which causes capacity 

limitations. These limitations include reduced heat exchange rates throughout the boiler components, as 

well as flow constraints with the flue gas system due to higher volumes and mass flow. In order to 

maintain at or near design rating for the boiler, a portion of higher Btu fuel, such as CTRTs, is typically 

incorporated into the fuel mix.

With an appreciation of the role the biomass power industry provides to CTRT processors, it is important 

to note that elimination of a major source end-user would redirect CTRTs to landfills, resulting in higher 

GHG emissions.

Response to excerpts above: The Agency recognizes the importance of CTRTs 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 CTRT 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 if the facilities were burning railroad ties under CAA 112 or 129 

regulations. Thus, most of the policy arguments propounded by these commenters may be valid but not 

necessarily relevant to whether material is discarded. 

The key for the facilities discussed in many of these comments is the use of both biomass and fuel oil as 

fuels that the facilities are designed to burn as part of normal operations and not solely as part of start-up 

or shut-down operations. Since commenters discussed some facilities that do not use fuel oil in their fuel 

mix now or in the past, they will not be eligible for the categorical listing regarding CTRTs. Under these 

conditions, the CTRTs have been discarded when they are burned as a fuel.

b. Use of Other Wood Preservatives

0077

In the preamble, EPA states that contracts for the purchase and combustion of CTRTs preclude ties and 

other wood treated with other preservatives [79 Fed. Reg. 21,021]. That certainly is not universally true. 

AAR does not have information on the percentage of contracts containing such a limit.

Response: The preamble statement was based on copies of contracts between combustors and suppliers 

which specifically stipulated the receipt of only railroad ties treated with creosote. The material was 
16

submitted as part of comments on the proposed for the February 2013 final NHSM rule (EPA-HQRCRA-2008-0329-0829). The Agency agrees that not all contracts may contain such stipulations and has 

amended similar statements in the final rule preamble to state that “Contracts for the purchase and 

combustion of CTRTs may include fuel specifications limiting contaminants, such as metal, and 

precluding the receipt of wood treated with preservatives other than creosote.”

0083

We encourage EPA to expand the definition of CTRT to include ties treated with a combination of 

borate and creosote along with ties treated with copper naphthenate. One of our facilities is currently 

permitted to burn copper naphthenate and would not add contaminants at levels that exceed comparable 

traditional fuels

Response: As discussed in preamble section V.6.C., the Agency has reviewed information submitted in 

September and October 2015 on three treated railroad ties, creosote-borate, copper naphthenate, and 

copper naphthenate-borate. Based on information provided to the Agency to date, we believe these three 

treated railroad ties are candidates for categorical non-waste listings and expect to begin development of 

a proposed rule under 40 CFR 241.4(a) regarding those listings in the near future.

2. Scope (‘Designed To Burn’ Issue)

0076.1

EPA admits that its “legitimacy criteria” are factors to determine if sham recycling is taking place:

EPA is careful to note that “legitimacy” is shorthand for referring to non-hazardous secondary 

materials that are not thrown away, are saved and are reused by being burned for their value as a 

fuel. The legitimacy criteria are the factors needed to be examined to make this determination. 

Thus, for example, it is relevant how the non-hazardous secondary materials is managed and the 

extent to which contaminants in the secondary material may indicate that the real reason for 

burning the secondary material is simply its destruction—referred to as “sham” recycling.

However, absent evidence of adulteration, levels of Clean Air Act pollutants found in an alternative fuel 

are not evidence of “sham recycling.” API II, at 58 (identifying the concern as “improper disposal of 

waste materials through adulteration” and noting that “[s]uch activity is called ‘sham recycling, ’" citing 

United States v. Marine Shale Processors, 81 F.3d 1361, 1365 (5th Cir. 1996)). In API II, this Court 

determined that a condition related to pollutant levels in a recycled material could be a valid part of a 

determination that a material is a waste where there are unexpected constituents in the recycled material 

that could have been added for the purpose of discarding them. However, this Court also 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.” Id. at 59. The record 

before the Agency makes this demonstration for railroad ties.

Response: The Agency does not agree with the commenter’s claim that the record before the Agency 

demonstrates that CTRTs are not discarded. As stated in section V.C.4.a. 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. 

0080
17

The proposed rule systematically evaluates the fuel characteristics of CTRTs and makes a reasonable 

determination that this material is similar in combustion characteristics to fuel oil. As stated in the Federal 

Register the proposed rule extrapolates from this point and requires units be designed to burn fuel oil. An 

excerpt from the 79 Federal Register 21006 (April 14, 2014) —"Accordingly, the ability to burn a fuel in 

a combustion unit does have a basic set of requirements, the most basic of which is the ability to feed the 

material into the combustion unit. The unit should also be able to ensure the material is well-mixed and 

maintain temperatures within unit specifications."

The ability to feed fuel oil simply is not a basic requirement for the combustion of CTRT fuel. The basic 

requirements are stated in US EPA guidance on combustion evaluation. The primary factors influencing 

combustion are the three "T's" Time, Temperature and Turbulence. Further, this guidance clearly 

indicates that the fundamentals of combusting solid fuels is a two phase process: the volatile matter 

fraction of a solid fuel is distilled off and burns as a gas; the remaining fixed-carbon fraction burns as a 

solid with the rate of combustion limited by the diffusion of oxygen to the surface. The fundamentals of 

combusting a liquid fuel is limited by the rate of evaporation. Although, CTRT is similar in chemical 

characteristics to liquid fuel oil the physical differences between solid and liquid fuel must be considered 

when defining the term designed to burn.

Response: The Agency appreciates that there are other requirements for the combustion of CTRT fuel 

that the commenter notes other than the example of being able to feed the material to the combustion unit. 

However, we disagree that a fuel oil feed mechanism is not one of the basic requirements. Indeed, without 

the necessary equipment, they do not have the ability for fuel oil combustion within the unit to begin 

with. These factors that the commenter suggests, in addition to the ability to feed fuel oil, seem to further 

solidify the determination that, in order to legitimately combust CTRT, the unit must be designed to burn 

both biomass and fuel oil.

0090

EPA acknowledges in the proposed rule that CTRTs are sufficiently processed by the reclamation 

companies and that two of the three legitimacy criteria are satisfied, but that unless those CTRTs are 

burned in a boiler that is designed to burn fuel oil, the third criterion concerning contaminant comparison 

precludes CTRTs from being a non-waste fuel.

Using this rationale, EPA has determined that the contaminant-level comparison between CTRTs and fuel 

oil outweighs all of the other factors that make CTRTs sound, energy-efficient fuel sources. Table 3 of the 

proposal illustrates that the level of SVOCs in CTRTs can be present at levels that are much higher than 

those in clean wood and biomass, but levels of metals and non-metals are present in CTRTs at levels far 

lower than those in clean wood and biomass, and VOCs are present at very low levels in both CTRTs and 

clean wood and biomass. ADM would maintain that the table illustrates that the levels of contaminants in 

CTRTs and clean wood and biomass as a whole are comparable. Yet, EPA requires CTRTs to be 

compared to fuel oil so that levels of all contaminants are not just comparable to traditional fuels but 

lower. Furthermore, EPA has categorized CTRTs as a non-waste fuel when burned in boilers that are 

designed to burn fuel-oil, but not when used in boilers designed to burn only biomass. ADM believes that 

this distinction is arbitrary and inconsistent, particularly since it is not likely that any boiler that burns fuel 

oil, other than ultra-low-sulfur diesel, will meet the emission limits for oil-fired boilers under the Boiler 

MACT.

Response: The Agency disagrees with the commenter that levels of contaminants in CTRTs as a whole 

are comparable. The legitimacy criterion for contaminant comparison states that the NHSM must contain 
18

contaminants or groups of contaminants at levels comparable in concentration to those in the traditional 

fuel which the combustion unit is designed to burn. The standard does not include “as a whole” or “some

“contaminants, or prioritize between contaminants. The EPA does not agree that CTRTs contain 

contaminant levels comparable to those found in biomass.

0090

CTRTs are a valuable fuel commodity that is currently used for energy recovery by ADM and others. 

This use provides strong economic, environmental, and societal benefits. ADM believes CTRTs are 

properly classified as non-waste fuel so that they may continue to be appropriately used as fuel. 

Therefore, ADM supports broadening the categorical exclusion for CTRTs to include CTRTs combusted 

for energy recovery in all boiler types capable of burning solid fuels, without the requirement that the 

boiler be designed to burn fuel oil also. This revision would solve a host of regulatory inconsistencies, 

including one that currently exists with our Enderlin biomass boiler that received a prior EPA 

determination stating it was properly classified as a boiler and not an incinerator when burning CTRTs for 

energy recovery.

Response: As discussed previously, the Agency recognizes the importance of CTRT as a fuel to boilers 

designed specifically for the use of biomass as a fuel. Indeed, there may be environmental benefits to 

allowing CTRT 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 if the facilities were burning under CAA 112 or 129 regulations. Thus, most of the policy 

arguments propounded by the comment may be valid but not necessarily relevant to whether material is 

discarded. 

The key for the facilities discussed in the comment is the use of both fuel oil and biomass as fuels that the 

facilities are designed to burn. Since these facilities do not now use fuel oil in their fuel mix, they will not 

be eligible for the categorical listing regarding CTRTs. The EPA has decided that under these conditions, 

the CTRTs have been discarded when they are burned as a fuel.

Regarding the ADM Enderlin, ND facility, we encourage the source to work with their permitting 

authority to review the provisions of this final rule regarding CTRTs, as well as the applicability sections 

of the relevant air regulations to determine if any permit modifications may be necessary as a result of the 

final NHSM amendments regarding CTRTs.

0093

We urge EPA to follow the same approach that the Agency undertook in finding resinated wood to be a 

non-waste, namely, to recognize that CTWC is a meaningful percentage of the overall biomass fuel 

supply, delivering both economic and environmental benefits that would not exist if EPA considered it a 

“waste” in “some” cases.

Response: Regarding the resinated wood determination, the Agency concluded that the material was 

integrated into the production process and was thus a categorical non-waste (78 FR 9155). This 

conclusion was based on information indicating that resinated wood production facilities were specifically 

designed to utilize that material for their fuel value, and the plants could not operate as designed without

the use of resinated wood. The Agency does not agree that CTRTs are integral to a production process, 

and sufficient information, similar to that provided for resinated wood, was not received. 
19

3. Rationale for Proposed Listing

a. Processing/Valuable Commodity

0076.1

Processing to create railroad tie fuel is a significant commercial activity. There are approximately 15 

railroad tie recovery companies in North America with industry-wide revenue of $65 - 75 million. Draft 

letter from Paul Noe to Administrator Jackson (Dec. 6, 2012) (EPA-HQ-RCRA-2013-0110-0002), at 3. 

These companies are not investing in facilities, equipment, and employee time to discard solid waste. 

These companies are making these investments to create a fuel product that they can sell (or in some 

cases can use themselves).

Response: The Agency recognizes that CTRTs are processed sufficiently to meet the definition of 

processing in 40 CFR 241.2, and that CTRTs are treated as a valuable commodity (thus meeting the first 

criterion in the determination of its status as a non-waste fuel). The “significant commercial activity” 

noted by the commenter may be valid but not necessarily relevant to whether material is discarded. 

0077

EPA discusses the length of time CTRTs might be stored for more than one year [79 Fed. Reg. 21,023]. 

Typically, CTRTs will not be stored for more than one year. However, storage for more than one year 

could occur for a variety of reasons. Furthermore, it is not clear what EPA would consider storage. For 

example, a section of right-of-way could be abandoned and it could take more than one year to remove 

not only the CTRTs, but the rails and associated materials. In such an event, not only would the CTRTs 

be managed as a valuable commodity, but so, too, would the rails and other materials.

There is no doubt that CTRTs are not solid waste when combusted for energy recovery in boilers. The 

record shows that CTRTs are handled as a valuable commodity – boilers pay to be able to use CTRTs, 

again as EPA acknowledges in the preamble [71 Fed. Reg. 21,021].

Response: As discussed in section V.C.4. of the preamble to the final rule, information in the record 

states that crossties removed from service are sometimes temporarily stored in the railroad right-of-way or 

at another location selected by the reclamation company. This means that not all CTRTs originate from 

crossties removed from service in the same year; some CTRTs are processed from crossties removed 

from service in prior years and stored by railroads or removal/reclamation companies until a contract for 

reclamation is in place. The Agency reasonably concluded that CTRTs 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 2011 rule). The assertion that the CTRTs are a valuable commodity in a robust market does 

not change the fact that the CTRTs have been discarded at some point. NHSMs may have value in the 

marketplace and still be wastes. 

0085

These materials [CTRTs] are not discarded. 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.
20

Several CIBO members own or operate facilities that use CTRTs as a critical component of their fuel mix 

and do so in lieu of more carbon-intensive fuel sources. These facilities rely on the availability of CTRTs 

as a fuel and have done so for years while fully complying with applicable emissions limits using their 

current fuel blends. EPA treats CTRTs as a non-waste fuel when burned in a boiler that burns fuel oil. 

However, EPA calls CTRTs a waste when burned for energy recovery, managed under contract, and 

sufficiently processed in a unit that does not or is not designed to burn fuel oil. This is not logical. EPA 

establishes no clear difference between a boiler “designed to burn both fuel oil and biomass” and any 

other boiler that may use CTRTs in combination with natural gas. EPA should open the CTRT 

categorization to all boiler types and all fuel types. EPA’s approach is arbitrary and capricious and 

contrary to law.

The proposed rule is also contrary to law because CTRT is a product that is not discarded and therefore 

cannot be solid waste. The rule wrongly focuses only on contaminants when determining whether CTRTs 

are waste. Other more significant and relevant factors make clear that CTRTs are highly commoditized 

and there is an active market for the use of CTRTs as fuel. For example, the record for this rulemaking 

includes evidence that discard of CTRTs is not the motivation of the combustor and that railroad tie fuel

is functionally the same as comparable traditional fuels. “Legal Analysis Supporting Listing Railroad Tie 

Fuel as a Nonwaste under 241.4(a),” (January 15, 2014), EPA-HQ-RCRA-2013-0110-0008. EPA should 

consider these “other relevant factors” when making the final determination. 40 C.F.R. § 241.4(b)(5)(ii).

In part, EPA bases its treatment of CTRT as fuel on an incorrect, arbitrary conclusion, reflected in this 

preamble statement: “CTRTs removed from service and 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) indicates that the material has been discarded and is a solid 

waste.” 

This statement reflects a complete misunderstanding of how CTRTs are processed and treated in the 

marketplace. Often times, CTRTs are transported a significant distance to the end user of the ties and 

therefore, those ties may need to be stored long enough to provide a shipment at a cost-effective freight 

rate. The availability of CTRTs may not always match the demand for CTRTs. Significant deconstruction 

of a railway could occur at a time when the marketplace for CTRTs as a fuel is flooded. Thus, storage of 

CTRTs is reasonable and by no means indicates that CTRTs are discarded.

Response: See sections V.C.4 and V.C.6 of the preamble. As indicated, purchase of the material as a 

commodity for its fuel value is a factor, but not determinative when considering whether discard has 

occurred. The assertion that the CTRTs are a valuable commodity in a robust market does not change the 

fact that the CTRTs have been discarded at some point. 

The Agency recognizes that CTRTs are processed sufficiently to meet the definition of processing in 40 

CFR 241.2, and that CTRTs are treated as a valuable commodity (thus meeting the first criterion in the 

determination of its status as a non-waste fuel). To meet legitimacy criteria and ensure discard is not 

occurring, materials must contain contaminants or groups of contaminants at levels comparable in 

concentration to or lower than those in the traditional fuel(s) which the combustion unit is designed to 

burn (sections 241.3(d)(1)(iii) 241.4(b). Discard would be occurring if the unit is not designed to burn 

CTRT with elevated levels of PAHs.

If a facility compared contaminants to a traditional fuel that the unit is not designed to burn, and the fuel 

is highly contaminated, a facility would be able to burn excessive levels of waste components in NHSMs 

as a means of discard. The Agency received traditional fuel contaminant comparison information for 

biomass, fuel oil and coal. To meet the contaminant legitimacy criterion, the Agency determined that 
21

CTRTs can only be combusted in units designed to burn biomass and fuel oil due to elevated levels of 

PAHs. Units designed to burn both biomass and fuel oil may, in addition, burn coal if the unit is also 

designed to burn that material.

As stated in the response above regarding storage of CTRT, information in the record states that crossties 

removed from service are sometimes temporarily stored in the railroad right-of-way or at another location 

selected by the reclamation company. This means that not all CTRTs originate from crossties removed 

from service in the same year; some CTRTs are processed from crossties removed from service in prior 

years and stored by railroads or removal/reclamation companies until a contract for reclamation is in 

place. The Agency concluded that CTRTs 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. The assertion that the CTRTs are a valuable commodity in a robust market 

does not change the fact that the CTRTs have been discarded at some point. NHSMs may have value in 

the marketplace and still be wastes. The Agency would consider CTRTs left in an abandoned right-ofway to be discard of those materials.

Further, the Agency does not agree with the claim that CTRTs are functionally the same as other 

comparable traditional fuels. Unlike traditional fuels, CTRTs must be processed by reclamation 

companies to remove metals (spikes, nails etc) and shredded into chips to make it suitable as a new fuel 

product.

0090

In the proposed rule, EPA questions whether ties are a valuable commodity if they are stored for longer 

than one year. The rule does not appear to specify what constitutes a reasonable timeframe for storage, so 

the one-year limit seems somewhat arbitrary, especially given the method in which CTRTs are collected 

along thousands of miles of rail line. Because of their value as a fuel, the CTRTs used by ADM's Enderlin 

facility are not discarded, and are instead purchased under long-term agreements for use as a fuel. These 

CTRTs are processed to remove contaminants and ground to the appropriate size for use as fuel in a 

combustion unit. Notwithstanding this comment, even if EPA believes that CTRTs are discarded, it can 

still categorize a NHSM as a non-waste fuel provided it is sufficiently processed and it meets the 

legitimacy criteria in 241.3(d)(1) (i.e., managed as a valuable commodity, meaningful heat content, 

comparable contaminant concentrations to traditional fuels).

Ties are managed as a valuable commodity, similar to how the other biomass fuels are managed at the 

location.

Response: As discussed above and in section V.C.4. of the preamble, as information in the record states 

that CTRTs are a valuable commodity in a robust market with value as a fuel or landscaping material, 

then the Agency questions why CTRT are not processed and used as a fuel or landscaping material in a 

relatively short period of time. Therefore, the Agency reasonably concluded that CTRTs 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 2011 rule). The assertion that the CTRTs are a valuable commodity in 

a robust market does not change the fact that the CTRTs have been discarded at some point. NHSMs may 

have value in the marketplace and still be wastes. The Agency does acknowledge that CTRTs are 

processed sufficiently to meet the definition of processing in 40 CFR 241.2, and that CTRTs are treated as 
22

a valuable commodity (thus meeting the first criterion in the determination of its status as a non-waste 

fuel).

0093

CTWC has long been recognized as a valuable alternative fuel and not wastes under the Resource 

Recovery and Conservation Act (RCRA) and applicable case law. CTWC are managed as a valuable 

commodity, used to recover energy and contain components comparable to traditional the fuels of wood 

and fuel oil.

Response: The Agency agrees with the commenter that CTRTs are treated as a valuable commodity and 

is adopting its proposed determination that CTRTs are not waste fuels if they are processed and 

combusted in facilities that are designed to burn both fuel oil and biomass. Please see Section V.C.4 of 

the preamble to the final rule for additional discussion regarding the rationale for this determination.

0104

I live in a rural community in Enderlin, North Dakota and have created a business in this rural area with a 

largely agricultural economy. I have built a business around the opportunity to recycle end-of-life railroad 

ties by chipping them and using them as fuel for a local agricultural processing facility. Another part of 

my business is to haul the fly ash from the ag processing facility to a landfill in Fargo, North Dakota, 

which is an hour away. Without the fly ash from the rail ties, that part of my business will be devastated 

as well. In short, your proposed rule will put me out of business. If the local agricultural processing 

facility is unwilling or unable to make the suggested modifications, my business, my employees and my 

entire investment in this small town are finished.

I am a member of the North Dakota Solid Waste Management Association and have experienced no 

violation of any State Health Department rule, permit or requirement. I am very hands-on and am 

personally accountable for every aspect of my company's day-to-day operations. I ensure that every 

employee is adequately trained and familiar will all state and federal regulatory guidelines. I am very 

proud of my business, my employees, my clients and my community.

I have personally invested more than $2.6 million in equipment, trucks, buildings and a grinding site. My 

employees and I are financially and emotionally invested in this business and strongly believe in the 

economic future of our community. This proposed rule will devastate my business and have a detrimental 

impact on this entire rural community.

I have daily experience with railroad tie chipping and focus my business on chipping the end-of-life 

railroad ties for two railroad companies into an economical, recycled fuel for a local ag processing 

facility. The railroad ties should not be classified as a waste material. Nowhere in this process are they 

discarded as waste and they are not burned whole. As the railroads initiate their annual railroad tie 

replacement program, the end-of-life ties are transported directly by railcar to a rail spur that I invested 

heavily in for the delivery of these ties. Using very specialized machinery that I purchased, in part using a 

USDA grant due to the fact that this is an innovative and environmentally friendly endeavor, my business 

facilitates the chipping of each of the railroad ties in a manner that makes them most efficient for use as 

fuel for the ag processing facility. I actually use two separate grinders in this process. The first grinder 

begins the process of transforming the rail ties to smaller pieces and removes metal. The second grinder 

provides fine grinding to bring the wood products down to less than two inches in size, which is the 

optimal size for fueling the ag processing facility. Nowhere in the process are the rail ties treated as a 
23

waste product; they simply get transferred from one location and use to another. My role upon receipt of 

the ties is to manipulate them physically into a format that is most conducive for the use to fuel a facility.

Response: The Agency thanks the commenter for their feedback and recognizes that CTRTs are 

processed sufficiently to meet the definition of processing in 40 CFR 241.2, and that CTRTs are treated as 

a valuable commodity (thus meeting the first criterion in the determination of its status as a non-waste 

fuel). As discussed above, however, the Agency EPA finds no reason to change its determination that 

CTRTs removed from service are discarded in the first instance. The assertion that the CTRTs are a 

valuable commodity in a robust market does not change the fact that the CTRTs have been discarded at 

some point. NHSMs may have value in the marketplace and still be wastes.

The key for the combustor discussed in the comment is the use of both biomass and fuel oil as fuels that 

the facility is designed to burn. Facilities that do not use fuel oil in their fuel mix now or in the past, will 

not be eligible for the categorical listing regarding CTRTs. 

Please see Section V.C.4 of the preamble to the final rule for additional discussion regarding the rationale 

for this determination.

b. Meaningful Heating Value

0077

There is no doubt that CTRTs are not solid waste when combusted for energy recovery in boilers. The 

record contains ample information showing that CTRTs are prized for their heating value, as 

acknowledged by EPA in the preamble [71 Fed. Reg. 21,024].

0085

Rail road ties are biomass materials that are treated with an energy rich substance (coal tars) to decrease 

insect infestation and rot in their first use. The coal tar treatment actually benefits the energy content of 

this biomass material, and makes them a desirable alternative fuel.

0090

CTRTs are biomass materials that are treated with an energy-rich substance (coal tar) to decrease insect 

infestation and rot. The coal tar treatment actually enhances the energy content of this biomass material, 

making it a desirable alternative fuel once the CIRTs are removed from active use.

Response to excerpts above: The Agency agrees with the commenters that CTRTs possess a meaningful 

heating value and is adopting its proposed determination that CTRTs meet the legitimacy criteria (and are 

therefore not waste fuels) if they are processed and combusted in facilities that are capable of burning 

both fuel oil and biomass. Please see Section V.C.4 of the preamble to the final rule for additional 

discussion regarding the rationale for this determination.

c. Contaminant Comparison

0075

In its comparison of contaminant levels to “traditional fuels,” EPA’s third legitimacy criterion evaluation 

was limited in scope. As such, in the preamble to the proposed rulemaking, EPA requested comments 
24

specifically on the use of multiple fuels for contaminant comparison in evaluating whether to categorically 

list CTRTs (including whether fuel oil should be one of the fuels used for comparison) and additional data 

that should be considered in making the comparability determination. GSEGNA compared the 

contaminants in CTRTs to those in biomass and TDF. As quantification of the volatile organic and 

semivolatile components in TDF could not be found in available literature, GSEGNA conducted testing of 

TDF samples from the McBain and Lincoln, MI Plants. The analytical results are contained in Attachment 

1. With the exception of a few semivolatile constituents, the contaminants in CTRTs are comparable to or 

lower than the contaminants in biomass and TDF as shown in Attachment 2 (see comment letter 0075 for 

attachments 1 and 2).

While CTRTs may have a greater concentration of certain semivolatile constituents in comparison to 

biomass and TDF, as previously discussed, there is a long‐standing practice of purchasing CTRTs as a 

viable fuel source for boilers. As such, there is no basis for assuming that CTRT combustion constitutes 

“waste treatment” of the excess contaminants in CTRTs. Therefore, in this case, it is appropriate for the 

EPA to balance the legitimacy criteria with other relevant factors which demonstrate CTRTs are fuel not 

waste. As discussed in the preamble to the reconsideration and proposed amendments to the NHSM 

rulemaking [76 Federal Register 80471 (December 23, 2011)], “the Agency recognizes that certain 

NHSMs may not meet the legitimacy criteria, especially the ‘contaminant legitimacy criterion,’ in all 

instances, but the material would still generally be considered a non‐ waste fuel.” In this preamble 

discussion, the Agency goes on to state that it is appropriate to balance the legitimacy criteria and such 

other relevant factors that the Administrator may identify in determining that a NHSM is not a solid waste 

when used as a fuel in a combustion unit. This principle should be applied in the case of CTRTs.

In addition, while GSEGNA understands that EPA is primarily interested in contaminants in fuel (input) 

data, we have emissions exhaust (output) data which demonstrate that the combustion of CTRTs has a 

similar emissions profile to the combustion of biomass and TDF. Emissions data were not supplied to EPA 

because GSEGNA’s Michigan plants were exempted from responding to the Section 114 ICR; however, 

the data are available upon request and show that there are no worse air quality impacts from burning 

CTRTs.

Response: The Agency first notes that TDF is an NHSM, not a traditional fuel as defined under 40 CFR 

241.2, thus the comparison of CTRT to TDF is not an appropriate comparison in evaluating whether 

CTRT meets the contaminant legitimacy criterion under 40 CFR 241.3(c)(3). As discussed in the 

February 7, 2013 final rule and the proposed rule (79 FR 21027), the Agency can list an NHSM 

categorically by balancing the legitimacy criteria against other relevant factors (40 CFR 241.4(b)(5)(ii). 

However, balancing does not mean the Agency should simply ignore any of the legitimacy criteria no 

matter the type of levels or contaminates because the material is a reliable, cost-effective source of fuel. 

In the case of CTRTs, to the extent that a combustion unit is not designed to burn fuel oil, the traditional 

fuel that is most comparable to CTRTs, the Agency would be allowing toxic contaminants that are 

present in the CTRTs several orders of magnitude higher than what is found in the traditional fuel. 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 EPA to undermine the legitimacy criterion if it is inconsistent 

with the concept of discard

The Agency thanks the commenter for the offer of providing stack test data but notes that emissions data 

are not relevant to a determination of whether the contaminant legitimacy criterion is met.

0077
25

The proposed rule is a step in the right direction. Based on ample data in the record, EPA recognizes that 

CTRTs have contaminant levels comparable to the levels in fuel oil.

Response: The Agency thanks the commenter for their feedback but emphasizes that CTRTs are only 

comparable when compared to contaminant levels in both biomass and fuel oil. Please see Section V.C.4 

of the preamble to the final rule for further discussion regarding the Agency’s rationale for its final 

determination.

0085

EPA’s focus on selected contaminants is flawed. In the Final Reconsidered NHSM rule, EPA says that 

“non-waste fuels must be similar in composition to traditional fuels prior to combustion.” 78 Fed. Reg.

9141. In other words, the composition of the fuel is what is needed to determine if the material in question 

is comparable to a traditional fuel - not the emissions resulting from the combustion of those materials. 

EPA’s current proposal compares contaminants in CTRTs to contaminants in fuel oil and biomass. 79 

Fed. Reg. 21025. For boilers that don’t have the ability to burn fuel oil, the rule requires a comparison 

between the contaminants in CTRTs and the contaminants in biomass only. Id. The rule states that the 

level of metals and volatiles in CTRTs are comparable to the levels in biomass but CTRTs have much 

higher levels of semi-volatile organic compounds (SVOCs or semi-volatiles) than biomass. Id. The rule 

fails to mention that the level of metals and volatiles in CTRTs are much lower than in biomass. EPA has 

arbitrarily determined that SVOCs present in the fuel are of greater importance than metals and volatiles 

in the fuel. This determination indicates that EPA is not adequately “weighing” the legitimacy criteria, but 

rather is saying that all contaminants have to be lower than a traditional fuel to qualify as non-waste fuel, 

which does nothing more than lead to arbitrary and capricious outcomes.

This proposed method of comparison also conflicts with the method for evaluating scrap tires. 78 Fed. 

Reg. 9154. When evaluating the composition of scrap tires, EPA did not consider volatiles or semivolatiles in comparison to traditional fuels. Instead, EPA focused solely on metals. Materials 

Characterization Paper in Support of the Final Rulemaking: Identification of Nonhazardous Secondary 

Materials That Are Solid Waste - Scrap Tires,” EPA-HQ-RCRA-2008- 0329-1822 at 13. EPA also noted 

the importance of reducing scrap tire stockpiles. Id. at 17. Finally, EPA did not include any “designed to 

burn” criteria when creating the scrap tires category. EPA’s changed methodology for CTRTs lacks any 

rational basis and EPA should revise the method to make it consistent with the method for analyzing 

scrap tires.

Response: The Agency disagrees with the commenter that EPA has arbitrarily determined that SVOCs 

present in the fuel are of greater importance than metals and volatiles in the fuel. As discussed above, the 

criterion for contaminant comparison states that the NHSM must contain contaminants or groups of 

contaminants at levels comparable in concentration to those in the traditional fuel which the combustion 

unit is designed to burn. The standard does not prioritize between contaminants. Regarding the “weighing 

of legitimacy criteria,” as discussed in Section V.C of the preamble to the final rule, there is a limit to the 

levels of contamination allowed in balancing other relevant factors to meet the contaminant legitimacy 

criteria, and elevated levels of contaminants remaining in the material can demonstrate that the material is 

being discarded. The purpose of the designed to burn condition is to ensure a facility is not combusting 

CTRT as a means of discard. Discard would be occurring if the unit is not designed to burn CTRT with 

elevated levels of PAHs.
26

If a facility compared contaminants to a traditional fuel that the unit is not designed to burn, and the fuel 

is highly contaminated, a facility would be able to burn excessive levels of waste components in NHSMs 

as a means of discard. The Agency received traditional fuel contaminant comparison information for 

biomass, fuel oil and coal. To meet the contaminant legitimacy criterion, the Agency determined that 

CTRTs can only be combusted in units designed to burn biomass and fuel oil due to elevated levels of 

SVOCs. Units designed to burn both biomass and fuel oil may, in addition, burn coal if the unit is also 

designed to burn that material.

As discussed in section V.C.6. of the preamble to the final rule, with respect to the comment’s view of 

the TDF categorical listing, , EPA first notes that that listing has not been reopened for any comment. 

Regardless, EPA disagrees with the comment that there is no designed to burn provision in the 

categorical listing. Any categorical listing imposes a requirement that legitimacy criteria must be met –

as is the case for any material burned as a fuel – in order to be burned as a product fuel. Facilities that 

are not designed to burn coal may not burn TDF because they will be burning a dirtier fuel than would 

normally be burned by the facility. While a separate case-by-case determination regarding contaminants 

does not have to be made, TDF may not be burned in an oil or gas fired facility under CAA section 112. 

In such a case there would be substantial burning of waste contaminants, which would result in the 

application of CAA section 129 standards.

The categorical listing for tires was based on the determination made in the March 2011 rule that TDF 

had contaminants at levels comparable to or less than coal, the traditional fuel which TDF would replace

and on contaminants reasonably expected to be present in that material. The Agency did not receive 

information on contaminant comparisons to other traditional fuels besides coal. It is not necessary for 

EPA to repeat the importance of the legitimacy criteria in every single provision in its regulations.

0090

EPA's contaminant-comparison rationale essentially holds that because concentrations of one group of 

contaminants (SVOCs) found in CTRTs are higher than those in other, traditional fuels, CTRTs are only 

being burned to destroy those contaminants. But, ADM believes EPA has the authority to balance all of 

the legitimacy criteria to make a categorical non-waste determination. ADM found a legal analysis in the 

docket and agrees with the commenter that EPA has the authority to take into account other criteria when 

making such determinations ("Legal Analysis Supporting Listing Railroad Tie Fuel as a Nonwaste under 

241.4(a)," (January 15, 2014), EPA-E1Q-RCRA-2013- 0110-0008). ADM agrees with the commenter 

that the motivation of the combustor is a significant factor that should be factored into a non-waste 

determination. ADM does not burn CTRTs to destroy one group of contaminants; rather, it purchases ties 

through a tie-processor from the railroad, under long-term contracts, to provide the facility with a reliable, 

cost-effective fuel source.

The State of North Dakota recognized this benefit when it issued a PSD permit enabling the Enderlin 

facility to use CTRTs as fuel in its solid-fuel boiler. The facility was required to perform source testing to 

ensure that emissions produced by burning CTRTs were comparable to emissions produced by burning 

other biomass. Those results indicate compliance with the emission limits in the facility's permit and also 

show compliance with the Boiler MACT emission limits. (See Attachment A for a summary of the stack 

test results that demonstrate such comparable emissions).

Response: As discussed in the February 7, 2013 final rule and the proposed rule (79 FR 21027), the 

Agency can list an NHSM categorically by balancing the legitimacy criteria against other relevant 

factors (40 CFR 241.4(b)(5)(ii). However, balancing does not mean the Agency should simply ignore 
27

any of the legitimacy criteria no matter the type of levels or contaminates because the material is a 

reliable, cost-effective source of fuel. In the case of CTRTs, to the extent that a combustion unit is not 

designed to burn fuel oil, the traditional fuel that is most comparable to CTRTs, the Agency would be 

allowing toxic contaminants that are present in the CTRTs several orders of magnitude higher than what 

is found in the traditional fuel. While the Agency recognizes that other relevant factors, including 

purchase of the material as a commodity for its fuel value (or one of the motivations of the combustor 

mentioned by the commenter), may be considered when one of the legitimacy criteria are not met, we do 

not agree that consideration of such factors would allow EPA to undermine the legitimacy criterion if it 

is inconsistent with the concept of discard.

The Agency thanks the commenter for the submitted stack test data but notes that emissions data are not 

relevant to a determination of whether the contaminant legitimacy criterion is met. We encourage the 

source to work with their permitting authority to review the provisions of this final rule regarding CTRTs, 

as well as the applicability sections of the relevant air regulations to determine if any permit modifications 

may be necessary as a result of the final NHSM amendments regarding CTRTs.

4. Specific Requests for Comments

a. Additional Approach

i. Comments that are generally supportive of adopting the additional approach

0076.1/0083.1/0100

We support expansion of the listing [to include CTRTs that are: (1) combusted as part of normal 

operations in existing units that are designed to burn both CTRTs and fuel oil; or (2) combusted in units 

at major source pulp and paper mills that are being modified in order to use clean fuel, such as natural 

gas, instead of fuel oil].

0078

Xcel Energy Supports the "Additional Approach"

0082

U.S. EPA requested comment on a second categorical exemption for CTRT that focuses on sources in

the pulp and paper sector. ... MAER supports this second categorical exemption for CTRT ...

0089

Biomass Resources, LLC supports this approach, but respectfully recommends the following changes:

“the Agency is considering an approach (based on the information described above) that would include as 

a categorical non-waste, CRCTs that are: (1) Combusted as part of normal operations in existing units that 

are designed to burn both CRCTs and fuel oil: and (2) combusted in units at a major source that are 

being modified or have already been modified in order to use clean fuel, such as natural gas instead of 

fuel oil.” 

A unit that has already been modified should not be excluded due to being proactive concerning the 

burning of cleaner fuels.
28

Response to excerpts above: The Agency is adopting the additional approach outlined in the proposed 

rule with some changes. See sections V.C.3, V.C.4, and V.C.6 of the preamble to the final rule for 

additional discussion. Section 241.4(a)(7) states that units at major source pulp and paper mills or 

power producers subject to 40 CFR 63 Subpart DDDDD that combust CTRTs and had been 

designed to burn biomass and fuel oil, but are modified (e.g. oil delivery mechanisms are 

removed) in order to use natural gas instead of fuel oil, as part of normal operations and not 

solely as part of start-up or shut-down operations. Regarding the commenter’s concern on units 

that have already been modified, as stated in preamble section V.C.3., the standard is applicable 

to existing units burning CTRTs that had been designed to burn fuel oil and biomass and have 

been modified to burn natural gas. The standard will also apply if an existing unit burning 

CTRTs and designed to burn fuel oil and biomass is modified at some point in the future. 

ii. Conditions on units that have switched to natural gas

0076.1/0083.1

We request that EPA not impose a condition that CTRT fuel comprise no more than 40 percent of the fuel 

that is used on a monthly basis. While companies keep purchase records they do not track the fuel mix on 

a monthly basis. In addition, some boilers are permitted to combust up to 50 percent CTRTs and other 

boilers have permits that have no limits. The allowable percent of CTRT fuel use by an individual boiler 

is a matter that is best left to the permitting authority. Further, we do not understand how this condition is 

an indication of legitimate use v. discard.

If EPA believes that this condition is important and can explain how it helps to distinguish legitimate use, 

we suggest that the condition allow up to 50 percent CTRT use, specify how the percentage is to be 

measured, and allow the limit to be met on a yearly, not monthly, basis. It will be easier for combustors to 

demonstrate compliance with this condition on a yearly basis using records that are already kept.

0077

EPA is proposing that only facilities where CTRTs comprise at most 40 percent of the fuel used on a 

monthly basis would be able to continue to burn CTRTs as non-waste material. There should not be an 

arbitrary cap on the percentage of CTRTs burned at any one facility. If there is a cap, it should be 

measured annually, not monthly. There could be significant variation in the amount of CTRTs burned 

monthly. For example, if there is significant wet weather in a particular month, a facility might choose to 

increase the amount of CTRTs burned.

Response to excerpts above: The Agency is adopting the additional approach outlined in the proposed 

rule (79 FR 21028), including the condition that CTRTs can comprise no more than 40 percent of the fuel 

used on an annual heat input bases. Although these commenters disagree on the proposed 40 percent 

limit, we note that other commenters expressed support for this approach. While statements from the pulp 

and paper industry indicate that CTRTs generally comprise 40% of the total fuel load, EPA also reviewed 

information from the Boiler MACT database, as well as similar information obtained for CISWI units, 

and noted that the reported annual heat input rates for CTRTs for all units that reported firing this material 

did not exceed 13 percent. Considering that CTRTs have elevated contaminants compared to biomass and 

natural gas, allowing a fuel usage percentage greater than industry has typically used previously could be 

indicative of discard. Therefore, the Agency is maintaining the 40 percent usage limitation as a reasonable 
29

condition for the categorical non-waste determination for CTRTs in units that have been modified to burn 

biomass and natural gas instead of biomass and fuel oil.

Regarding the measurement basis for the 40 percent limitation, EPA has determined that the annual heat 

input is the appropriate measure for facilities to use, rather than the proposed monthly basis. 

Please see sections V.C.3, V.C.4, and V.C.6 of the preamble to the final rule for additional discussion.

0078

Xcel Energy disagrees with EPA's proposal to condition this categorization on the requirement that "[t]he 

CTRTs comprise no more than 40% percent of fuel that is used on a monthly basis"[CTRT Listing Rule, 

79 Fed. Reg. at 21028]. Xcel Energy believes that this requirement is arbitrary and without basis.

First, EPA offers no support for this 40% requirement other than a general statement about past practice 

by the pulp and paper industry, which even if true has no bearing on the legitimacy criteria listed in the 

NHSM regulations, 40 C.F.R. § 241.3(d)(1).[Footnote: See CTRT Listing Rule, 79 Fed. Reg. at 21028 n. 

108 (citing only "[s]tatements at meeting between American Forest and Paper Association and Mathy 

Stanislaus on December 19, 2013 indicate that, CTRT generally comprises 40% of total fuel load."). As 

discussed in the CTRT Listing Rule, the legitimacy criteria include whether "(1) The NHSM must be 

managed as a valuable commodity; (2) the NHSM must have meaningful heat value and be used as a fuel 

in a combustion unit to recover energy; and (3) the NHSM must have contaminants or groups of 

contaminants at levels comparable to or less than those in the traditional fuel the unit is designed to burn." 

CTRT Listing Rule, 79 Fed. Reg. at 21024] Second, EPA has already determined that CTRTs "have 

comparable contaminant levels to other fuels combusted in units designed to burn both biomass and fuel 

oil."[ CTRT Listing Rule, 79 Fed. Reg. at 21026] Thus, there is no basis for imposing the 40% 

requirement on units merely because oil delivery equipment has been removed. Finally, it would impose 

unnecessary recordkeeping and additional reporting costs to companies for no benefit. The imposition of 

costly and unnecessary requirements is inconsistent with the Paperwork Reduction Act of 1995, 44 

U.S.C. §§ 3501 et seq., and related Executive Orders, which "express[] the national commitment to 

minimizing paperwork burdens" and "eliminat[ing] unjustified costs."[Cass R. Sunstein, Administrator, 

Memorandum re: Minimizing Paperwork and Reporting Burdens; Data Call for the 2012 Information 

Collection Budget (ICB) (February 23, 2012), available at 

http://www.whitehouse.gov/sites/default/files/omb/inforeg/icb/2012_icb_datacall_0.pdf.]

Response: See previous responses regarding the rationale for the condition on 40% fuel use. Regarding 

reporting and recordkeeping requirements, as discussed in section V.C.6. of the preamble, current 

recordkeeping requirements for boilers under 40 CFR 63.7555 require documentation that the material is 

listed as a categorical non-waste under §241.4(a) of this chapter, which would include records 

demonstrating adherence to any conditions applied to the categorical non-waste determination, such as 

the 40 percent annual heat input limitation. 

0079

The division agrees that 40% may be acceptable in most situations. The division submits that the amount 

could be varied based on the rate at which the fuel handling system and boiler can safely combust the 

mixed feed material. This would be verified by the normal trial feeds and stack testing as a part of the air 

permit.

0080
30

MAER’s experience with the utility/independent power production sector’s use of CTRT is that a 40% 

limit of CTRT fuel usage on an annual basis will be consistent with current practices and will allow 

facilities sufficient flexibility. The 40% CTRT limit should be established on an calendar year basis and 

compliance with this limit would be achieved via recordkeeping.

In lieu of specific guidance regarding how to meet the proposed requirement for CTRT to be no more 

than 40% of the fuel that is used on an annual basis, sources should be able to use either a heat input basis 

or a weight basis to meet the proposed requirements associated with the proposed second categorical 

exemption for CTRT.

0089

On FR Page 21028 of the proposed amendments, it states that “The CRCTs can comprise no more than 

40% of the fuel that is used on a monthly basis”. Please clarify if this 40% is by weight or heat input. 

Also, if emission limits are being met, why is there a need for this limit?

Response to excerpts above: As discussed in section V.C.6. of the preamble to the final rule, the 

condition outlined in the proposed rule, i.e. 40% of the fuel that is used on a monthly basis, was 

modified in the final rule to 40% of the fuel used on an annual heat input basis as the appropriate 

measure. Several commenters stated that facilities already measure and keep records on an annual basis, 

and we have noted that the subcategory applicability records required by the major source boiler 

NESHAP are on an annual heat input basis as well. Thus this annual heat input basis approach maintains 

consistency with other recordkeeping requirements required under other rules and practices already in 

place.

Units may vary their CTRT feed rate up to the 40% of annual heat input basis. Regarding emissions 

limits being met, as noted above, emission limits applicable to the combustion unit are not relevant to a 

determination of whether the contaminant legitimacy criterion is met and the material is a waste or nonwaste. The NHSM rule requires these criteria be analyzed for the material prior to combustion.

b. Recordkeeping Requirements

0071

EPA asks in the preamble for the proposal "...whether combustors should be required to keep records that the 

conditions for burning CTRT described above have been met." (FR page 21028) Without requiring combustors to 

keep records, EPA or delegated state or local air agencies will have no way to ensure compliance with the 

conditions. The DNR recommends that EPA include recordkeeping requirements in the final rule. If EPA elects 

to include CTRT processing requirements, as DNR requested above, EPA should also include a "written 

certification" requirement for CTRT processing facilities to provide to combustors. If EPA includes a "written 

certification" requirement, EPA should also include in the final rule what must be included in the written 

certification, as DNR has recommended above for C&D wood processing.

Response: As discussed above and in section V.C.6 of the preamble, the Agency has concluded that additional 

specific recordkeeping requirements are not required to determine compliance with the additional 

approach. Current recordkeeping requirements for boilers under 40 CFR 63.7555 require documentation that the 

material is listed as a categorical non-waste under §241.4(a) of this chapter, which would include records 

demonstrating adherence to any conditions applied to the categorical non-waste determination, such as the 40 

percent annual heat input limitation.
31

c. Expand to Include Other Industries

0078

Xcel Energy strongly supports this [additional] approach and believes it should apply to all major sources 

using boilers "designed to combust both fuel oil and CTRT, including stoker, bubbling bed and fluidized 

bed boilers[.]"[79 Fed. Reg. at 21028]. Specifically, Xcel Energy believes this approach should extend to 

the utility industry as well as the pulp and paper industry. Xcel Energy burns CTRTs in its Bay Front 

Plant stoker boilers, which are designed to burn both fuel oil and biomass. EPA has already determined 

that CTRTs combusted at such units "have comparable contaminant levels to other fuels combusted in 

units designed to burn both biomass and fuel oil" and thus meet this legitimacy criterion [79 Fed. Reg. at 

21026]. Accordingly, there is no basis to differentiate between boilers utilized by the utility industry and 

similar units utilized by the pulp and paper industry for purposes of the CTRT Listing Rule.

0079

The division supports the inclusion of other industries which combust CTRTs as a NHSM.

0082

The application of the second categorical exemption [for CTRTs] to a single industrial sector is too 

limiting. The pulp and paper sector is not the only sector that may shift from oil firing to natural gas firing 

in order to simplify compliance with other regulatory programs. Sources outside of the pulp and paper 

sector should also be allowed to claim the categorical exemption that is currently being proposed only for 

the pulp and paper sector. For example boilers at small electric generating facilities that expect to switch 

from fuel oil firing to natural gas firing as part of their strategy for compliance with 40 CFR Part 63 

Subpart DDDDDD (i.e., Boiler MACT) should also be able to use the proposed second categorical 

exemption for CTRT.

MAER has identified fourteen (14) entities in the utility/independent power production sector that have, 

within the past two (2) years, fired between 5,000 and 70,000 tons per year of CTRT. Several of these 14 

entities are regulated under 40 CFR Part 63 Subpart DDDDDD. As with boilers within the pulp and paper 

sector, the utility/independent power production sector boilers may also consider a fuel switch from fuel 

oil to natural gas as part of a compliance strategy to comply with Boiler MACT. There is no difference in 

how combustion units operating in different industrial sectors utilize CTRT as a valuable alternate fuel. 

Therefore, the second proposed categorical exemption should be expanded to include at a minimum, the 

utility/independent power production sector.

0089

This fuel should not be exclusive to the pulp and paper industry, as it benefits many other types of 

industries.

Response to excerpts above: The Agency is adopting the additional approach outlined in the proposed 

rule, with some revisions. EPA has determined that it is appropriate to extend the approach to CTRTs 

combusted in units at power production facilities subject to 40 CFR Part 63 Subpart DDDDD (Boiler MACT) 

in addition to major source pulp and paper mills. This determination is based on information from the Boiler 

MACT and CISWI databases indicating that these are the types of facilities having units that may combust both 
32

CTRTs and fuel oil. Please see sections V.C.3, V.C.4, and V.C.6 of the preamble to the final rule for 

additional discussion.

5. Cement Kilns Using CTRTs

0081

PCA supports the EPA's balanced approach to using flexible processing criteria for processors of CTRT 

categorical non-waste fuels, based on the particular needs of the end-use combustor. Cement kilns in 

particular are capable of handling a wide variety of fuels without the need for unnecessary extra processing 

that utilizes excessive resources. Processing to ensure legitimacy needs to be flexible and appropriate to the 

receiving combustion unit, because the nature of combustion unit design and operation is not uniform, and 

cement kilns have unique balancing factors that can and should be taken into account.

Cement kilns manage all fuels, including both traditional and alternative fuels, as valuable commodities in 

accordance with the legitimacy criteria applied in the proposed regulation and previous NHSM 

rulemakings. Each alternative fuel stream utilized by a cement kiln is managed within an established 

system that has been developed to ensure that the materials are not disposed of, are managed as a valuable 

commodity, and are comparable to the traditional fuels used at cement kilns. Fuels are managed under a 

contractual relationship between the producer of the fuel and/or their post-production handler/processor 

and the cement plant, similar to the established collection programs used in the scrap tire markets. The 

system is designed to ensure that only the appropriate materials are included in the shipment. The 

agreement may be in the form of a contract, agreement, or purchase order. The management and 

responsibilities are always under a contractual relationship from origination to delivery.

Response: When evaluating whether an NHSM can be a legitimate product fuel, it is discard and the 

legitimacy criteria that is the determinant, not the capabilities of the unit burning the NHSM. In this 

categorical listing, the pertinent criterion is whether contaminant concentrations in CTRTs is comparable 

to or lower than the contaminant concentrations in biomass and fuel oil. Furthermore, the fact that the 

cement kiln can use fuels that do not require sufficient processing does not impact the requirement that 

the NHSM be processed into a non-waste fuel, as discussed in section V.C.1 of the preamble. The fact 

that cement kilns are capable of burning dirty, low value fuel does not in itself render the facility to be 

considered a facility subject to Clean Air Act section 112 regulation instead of Clean Air Act section 129 

regulation.

0081

PCA strongly disagrees with putting a “bright line” limit on the percent of CTRT non-waste fuel in the 

total fuel stream being utilized as fuel. The Agency has requested comment on limiting CTRT non-waste 

fuels to 40% of the fuel used. This number is based on statements made during a meeting between the 

American Forest and Paper Association and Mathy Stanislaus of the U.S. EPA. Cement kilns base their 

fuel mixes on operational requirements for combined heating value, kiln conditions, and product 

specifications. It would be irrational from an operations perspective in the cement industry to establish a 

bright line limit on any one non-waste fuel in that mix, when in fact it is an operations and fuel 

availability decision. PCA strongly encourages the EPA to avoid setting a specific "bright-line" number 

for the percentage of categorical non-waste fuels in a fuel stream, especially since it appears to be simply 

based on the input of a limited group of combustors.
33

Response: EPA is not finalizing the 40 percent limitation of CTRT input for units that are designed to 

burn both fuel oil and biomass, which we believe the commenter is referring to generally. To clarify, the 

final rule contains the 40 percent on an annual heat input basis condition only for units that have 

removed the ability to combust fuel oil as part of normal operations, and switched to natural gas as 

discussed in detail in section V.C.4 of the preamble to the final rule. For a cement kiln that is designed to 

combust fuel oil, biomass (and coal), there is no input limit that applies to CTRT use as a result of the 

final NHSM amendments (but permitting agencies may impose operational limits outside the scope of 

this rulemaking). As discussed above, EPA is maintaining the 40 percent usage limitation for units that 

were designed to burn fuel oil, but have switched to natural gas because allowing a fuel usage 

percentage greater than the industry has typically used previously could be indicative of discard. In 

addition to statements from the pulp and paper industry indicating that CTRTs generally comprise 40% 

of the total fuel load, EPA also reviewed information from the Boiler MACT database as well as similar 

information obtained for CISWI units, and noted that the reported annual heat input rates for CTRTs for 

units that reported firing this material did not exceed 13 percent.

Please see section V.C.6 of the preamble to the final rule for additional discussion.

0081

When utilized in a cement kiln, emissions, including dioxin emissions, from combustion of CTRT nonwaste fuels are controlled by regulation. For the cement industry there are many balancing factors to take 

into account as part of considering whether a NHSM fuel is a non-waste fuel, as emissions of the 

contaminants are inherently controlled in the cement manufacturing process. Kiln systems are subject to 

the PC MACT emission standards (40 CFR 63, Subpart LLL),1° which inherently regulate the variety of 

fuel types including non-waste fuels. The PC MACT emissions limits, as updated by the September 2010 

and February 2013 final rules, include those for particulate matter (PM) as a surrogate for metals 

emissions, total hydrocarbons (THC) as a surrogate for non-dioxin organic emissions, dioxins and furans 

(D/F), hydrogen chloride (HCl), and Mercury (Hg). As part of the most recent regulatory development 

process updating the LLL rules, EPA has demonstrated that the limits set forth in the PC MACT rules are 

technologically advanced and protective of human health and the environment. Priority pollutants are also 

addressed through industry CAA regulation and industry initiatives to reduce emissions, as discussed in 

comment 3.A above.

Beyond the CAA regulatory controls, the cement industry has spent decades studying and understanding 

the fate of both organic and inorganic constituents in the manufacturing process, thus having a significant 

body of knowledge about system inputs and emissions. This industrial process is unique amongst the 

"combustors" affected by the CISWI and NHSM rules, due to the use of large quantities of raw materials 

and fuels that contain naturally occurring organic and inorganic constituents, and to the inherent operating 

characteristics of the system.

Response: EPA acknowledges that the NESHAP applicable to Portland cement kilns addresses several 

pollutants, some pollutants shared with the corresponding CISWI regulations for waste-burning kilns. 

However, as we have noted in earlier responses, emissions data or air regulation emission limits 

applicable to the combustion unit are not relevant to a determination of whether the contaminant 

legitimacy criterion is met. The NHSM rule requires these criteria be analyzed for the material prior to 

combustion.
34

D.Cement Kilns: General

0098

CEMEX manages alternative fuels as valuable commodities and requests EPA finalize the rule with 

flexibility on storage times. Traditional and alternative fuels utilized at the CEMEX facilities are managed 

as valuable commodities, and categorical non-waste fuels utilized at CEMEX facilities will be managed 

accordingly, consistent with the management of similar traditional fuels at the same facilities. Storage 

times for categorical non-waste fuels at the receiving combustion facility should not be unduly restrictive, 

and should reflect the practices for storing traditional fuels, which in turn reflect the operational 

variability at cement manufacturing facilities. Alternative fuels are typically used at CEMEX facilities 

within 3-6 months of delivery, but not longer than a year for non-routine situations. These extended 

storage times are necessary for traditional and alternative fuels because the cement plants inherently need 

flexibility for multi-week annual shutdowns and other situations where fuels on-site must be stored longer 

to address the different operating scenarios that are encountered. CEMEX contends that this flexibility is 

important to our manufacturing operations and we commit to continue to manage our alternative fuels as 

valuable commodities.

Response: Regarding storage time frames for NHSMs, section 241.3(d)(1)(i)(A) stated that storage prior 

to use must be within reasonable time frames to meet the legitimacy criterion for management as a 

valuable commodity. The March 2011 NHSM rule (76 FR 15520) preamble stated that a reasonable time 

frame should not be specifically defined as such times vary according to the material and industry 

involved, and the reasonable time frame is appropriate considering the large number of NHSMs subject to 

the rule, and flexibility required for to allow cost-effective accumulation of the material. The preamble 

section V.C.5. of the final rule indicated that combustion usually takes place within a week of arrival at 

the combusting facility, but did identify a specific storage time frame for the meeting the legitimacy 

criterion. Considering cement plant practices and operational variability specific to the industry, and 

consistent with the discussion of reasonable time frames in the March 2011 rule, the Agency would 

consider typical combustion within 3-6 months but no longer than a year as a reasonable time frame at 

such plants.

0098

As discussed in detail in the PCA comments, there are many inherent benefits to utilizing categorical nonwaste fuels as an alternative fuel in cement kilns.

• CEMEX utilizes alternative fuels to reduce dependence on traditional fuels, promote 

sustainability, and reduce greenhouse gas emissions. 

• Categorical non-waste fuels may be used at CEMEX facilities for their energy content, with 

the additional benefits of their value as minor ingredients.

• Cement kilns using non-waste fuel are all regulated under the Clean Air Act Portland Cement 

MACT standards. In combination with other CAA regulations applicable to cement kilns, and 

as permitted through our CAA permits regulating emissions, our air pollution control devices 

and on-site management practices ensure that potential pollutants are managed to protect from 

environmental releases.

• Due to the number and geographic diversity of CEMEX facilities, the large energy 

requirements of cement kilns, and the flexibility inherent in the cement manufacturing process, 

we are uniquely capable of addressing the occasional unusually large and variable fuel streams 
35

such as C&D disaster debris. For example, in the event of a disaster CEMEX is wellpositioned to work with communities, relevant state and local agencies, and C&D wood nonwaste fuel processors to provide an efficient, reliable, and environmentally sound fuel outlet 

for disaster debris.

Response: EPA thanks the commenter for their feedback.

0081

PCA encourages the EPA to continue to recognize cement kilns as a viable end user for beneficial use of 

a wide range of alternative fuels; and specifically all of these categorical non-waste fuels. EPA has had a 

long-standing focus on the cement industry as a leader in resource conservation, recovery and 

sustainability. Cement kilns by their very nature offer a near universal ability to process the types of 

categorical non-waste fuels addressed in this rulemaking as a beneficial substitute for traditional fossil 

fuels in the manufacture of the cement product. Furthermore, the manner in which cement kilns utilize 

alternative fuels in a well-documented combustion process that derives a highly used product dovetails 

neatly with EPA's legitimacy criteria for non-waste fuels. When cement kilns utilize fuels, unlike other 

combustion processes, the resultant ash from those materials comingles with the feed materials and 

becomes part of the product. Furthermore, stability of kiln combustion conditions is extremely important 

to maintaining the proper reaction conditions necessary for production of cement. Therefore, quality 

assurance and control of fuel sourcing and processing is already inherent to the process whether it be 

traditional or alternative fuel sources.

Response: The Agency recognizes that cement kilns are an example of a combustor that may have the 

ability to combust these categorical non-waste fuels (see discussion on cement kilns combusting C&D 

wood and CTRT in sections V.A.5. and V.C.6. of the preamble, as well as prior responses to this 

commenter found earlier within this document). 

0081

The traditional fuel data and groupings shown in Tables 1, 2 and 3, attached at the end of the PCA 

comments, have been developed to aid in the comparison of non-waste fuels to traditional fuels used in 

cement kilns. The traditional fuels tables are based on information from the NHSM docket concept paper 

Contaminant Concentrations in Traditional Fuels: Tables for Comparison dated November 29, 2011, the 

Materials Characterization Paper, February 7, 2011, supplemented by data from the OAQPS Boiler and 

Process Heater database for traditional fuels that cement kilns are designed to use. Note that currently all 

U.S. cement facilities utilize solid fuels; with the additional capability of liquid and/or gaseous fuels).

In the tables, certain contaminants have been grouped based on knowledge of their behavior in the cement 

kiln system. As indicated in the tables, the groupings include: 

• SVMs (semi-volatile metals): Group includes lead, cadmium, and selenium compounds.

• LVMs (low-volatile metals): Group includes antimony, beryllium, chromium, cobalt, 

manganese, and nickel compounds. Arsenic has not been included within the LVM category 

because it is a known human carcinogen and is compared individually, not within the group. 

Chromium in these fuel streams is expected to be the Cr(III) variety and is included within 

the LVM category. Only Cr(VI) is considered to be a carcinogen and, based on historical 

data, is not expected to be in these fuels.

• Halogens: Group includes chlorine and fluorine.
36

• SVOC (semi-volatile organics): includes HAPs able to be identified by EPA SW-846 Method 

8270 including polycyclic organic matter (POMs)

• VOCs (volatile organics): includes HAPs able to be identified by EPA SW-846 Method 8260 

excluding benzene because it is a known human carcinogen.

Tables 1-3 document the comparison analysis of the traditional fuels data that cement kilns are designed 

to use against the similar analysis of the processed C&D, PRR, and CTRT candidate streams, 

respectively.

0098

CEMEX requests EPA to recognize coal and petcoke as traditional solid fuels in the comparative analyses 

for the three proposed materials. All CEMEX cement kilns utilize either coal, petcoke, or both as the 

primary traditional solid fuel, so we encourage EPA to include those traditional fuels to also address the 

solid fuel component in the contaminant comparisons for the categorical non-waste fuels, as further 

discussed in the PCA comments.

Response to excerpts above: Please see the specific categorical non-waste fuels discussion on cement 

kilns combusting C&D wood and CTRT in sections V.A.5. and V.C.6. of the preamble, as well as prior 

responses to this commenter found earlier within this document for response to these comments. As 

discussed in section V.A.6. of the preamble to the final rule, the cement industry provided contaminant 

data for solid traditional fuels that are used by cement kilns, by grouping coke, coal, clean wood, and 

biomass together and then compared contaminant concentrations to C&D wood. The data show that even 

when contaminants are grouped based upon their behavior in a cement kiln, several of the contaminants 

had higher concentrations than the solid traditional fuel being compared.

E. Technical Corrections and Clarifications

0081

PCA agrees with the change in wording in 40 CFR 241.3(d)(1) from "boiler" to "combustion unit." We 

agree that this minor change clarifies that many types of units — including cement kilns — are capable of 

and allowed to utilize these fuels. We urge EPA to continue to address and include cement kilns in all 

regulatory work associated with alternative fuels as a predominant end-user.

Response: EPA thanks the commenter for their support.

0098

CEMEX supports EPA's proposed change in wording at 40 CFR 241.3(d)(1) from "boiler" to 

"combustion unit." We agree that this minor wording change clarifies that many types of units —

including cement kilns — are capable of and allowed to utilize these fuels.

Response: EPA thanks the commenter for their support.
37

F. Effects on Other Programs

0072

The MPCA has concern over how a number of the proposed Resource Conservation and Recovery Act 

of 1976 (RCRA) amendment provisions would become practically enforceable under Clean Air Act 

permits. The proposed amendments would be located in a RCRA regulation, not Clean Air Act 

regulation. For example, fuel types need to be practically enforceable in an air permit. A number of 

Minnesota air permits already prohibit the use of C & D debris as a fuel type. Under the proposed 

amendments, these permits would need to be reopened, public noticed, and be made practically 

enforceable. In addition, would not the air permit need practically enforceable requirements addressing 

the proposed written certification provisions? Moreover, how will the Agency address the combustion of 

C & D debris in the boiler standards?

Response: Standards under the Boiler MACT require that boilers can combust only non-waste fuels

(see section 63.7575). Current recordkeeping requirements for boilers under 40 CFR 63.7555 require 

documentation that the NHSM is listed as a categorical non-waste under §241.4(a) of this chapter. Such 

documentation would include records demonstrating adherence to any conditions applied to the 

categorical non-waste determination such as the written certification for C&D material. We encourage 

sources to work with their permitting authority to review the provisions of this final rule as well as the 

applicability sections of the relevant air regulations to determine if any permit modifications may be 

necessary as a result of the final NHSM amendments.

G. Statutory and Executive Order Reviews – Paperwork Reduction 

Act

0081

The costs associated with this rulemaking appear to be underestimated. PCA agrees that this rulemaking 

offers potential for cost savings, but at the same time we would like to point out that some costs seem 

inaccurate. The expected cost to the combustor is estimated by EPA to be approximately $74 to read and 

understand the rule, and a cost of $32.40 / submission to receive, review, and maintain the certification 

statement. Where there is uncertainty associated with documenting compliance with the rule, there would 

definitely be a much greater cost because each material would then need to be considered individually as 

opposed to setting a framework under which facilities can operate with certainty, such as is provided by 

the categorical exclusion of this rule. Where this rule provides certainty, the regulated community can 

save significant resources from what would otherwise be required. PCA members have found the NHSM 

rule to be very time-consuming with respect to reading, evaluating, and implementation, regardless of the 

brevity and self-implementing nature of the rule. The significant cost is due to the uncertainty introduced 

by the rule. We therefore agree with EPA that the proposal for categorical exclusion for the three streams 

will reduce materials management cost and definitely will reduce regulatory uncertainty associated with 

these materials to help increase material management efficient.

Response: The Agency agrees with the commenter that the categorical non-waste determination increases 

certainty. Specifically, when a material is categorically listed as a non-waste fuel, persons that generate 

or burn these materials do not need to make individual determinations of as required under the section 40 
38

CFR 241.3 self-implementing provisions of the NHSM rule. Accordingly, the Agency has concluded 

that the costs associated reading the rule and to receive, review and maintain the certification statement 

are reasonable. To the extent that the commenter is commenting on the costs of the final 2011 NHSM 

rule, these are not open for comment for this rulemaking.

H. Other

1. Outside the Scope of the NHSM rulemaking

0072

The MPCA supports the proposal prohibiting the combustion of C & D debris and railroad materials in the 

proposed Subpart QQQQ Standards of Performance for New Residential Hydronic Heaters and Forced Air 

Furnaces. The proposed language found in 40 CFR § 60.5474 provides, in part:

(f) Prohibited Fuel Types. No person is permitted to burn any of the following materials in an 

outdoor residential hydronic heater, indoor residential hydronic heater, or residential forced-air 

furnace:

(7) Construction or demolition debris;

(9) Railroad ties or pressure treated lumber;

The Agency recommends that the proposal prohibiting the combustion of C & D debris and railroad materials 

in the proposed Subpart QQQQ be incorporated into the proposed amendments to 40 CFR pt. 241. If there 

are other small combustion units that are not covered by proposed QQQQ, they also should be included in 

this restriction. 

0103

The legitimate use of treated wood as fuel requires the use of appropriate combustion/process equipment, 

controls and compliance with permit requirements. These equipment and permit requirements are tailored to 

the intended fuel.

Response to excerpts above: Comments are not within the scope of the proposed and final rule. These 

comments pertain to air permitting or separate air regulations that are not within the scope of this 

regulatory development.

2. General Support/Opposition

0076.1

As discussed below, we support EPA’s proposal to list construction and demolition (C&D) wood fuel, paper 

recycling residuals (PRRs), and creosote treated railroad ties (CTRTs) as non-waste fuels under 40 CFR 

section 241.4. The conclusion that these materials are legitimate alternative fuels and not wastes is supported 

by the Resource Conservation and Recovery Act (RCRA) and by the record before the Agency. Further, 

listing these materials as non-wastes will allow the continued and increased use of these valuable fuel 

products.

I.Under RCRA, Alternative Fuels Are Not Waste Where the Record Shows the Alternative Fuels are 

Combusted for Legitimate Energy Recovery and Not For Disposal, Where Combustion of the Alternative 

Fuel is Integral to an Industrial Process and Where the Fuel is Functionally the Same As The Traditional 

Fuel it Replaces.
39

RCRA 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 * * * *'' 42 U.S.C. 

6903(27). As EPA has noted: “The key concept is that of ‘discard’ and, in fact, this definition turns on the 

meaning of the phrase, ‘other discarded material,’ since this term encompasses all other examples provided in 

the definition.” 76 Fed. Reg. 15456, 15462 (Mar. 21, 2011).

In reviewing regulations defining when a hazardous secondary material is solid waste, the D.C. Court of 

Appeals for the D.C. Circuit has emphasized this point. Association of Battery Recyclers v. EPA, 208 F.3d 

1047, 1051 (D.C. Cir. 2000) (ABR) (“Congress unambiguously expressed its intent that ‘solid waste’ (and 

therefore EPA's regulatory authority) be limited to materials that are ‘discarded’ by virtue of being disposed 

of, abandoned, or thrown away.”).

The D.C. Circuit also has provided guidance on what materials can be considered ‘discarded’ under RCRA. 

First, it has interpreted the term ‘discard’ based on the ordinary plain-English meaning of the term which 

encompasses ‘disposed of,’ ‘thrown away,’ or ―abandoned.’ American Mining Congress v. EPA, 824 F.2d 

1177, 1188-89 (D.C. Cir. 1987) (“AMC I”). If a person has not disposed of, thrown away, or abandoned a 

material, it is not discarded, even if it is no longer useful in its original capacity. AMC I, at 1185-87. Because 

RCRA was enacted in response to Congressional concerns over “the rising tide of scrap, discarded, and waste 

materials,” RCRA authority extends only to materials that are part of the waste disposal problem. AMC I, at 

1185.

Second, the D.C. Circuit has explicitly stated that the term “discarded materials” cannot include materials that 

are destined for beneficial use of recycling in a continuous process by the generating industry itself, because 

such materials are not part of the waste disposal problem. AMC I, at 1190. The court also has held that a 

continuous process of reuse or recycling does not require a closed-loop process or immediate reuse. ABR, at 

1056.

Third, EPA has long recognized that even if a material has been discarded, if resources are expended to 

manufacture a new product using that material, then that new product is no longer a waste. See, e.g., 50 Fed. 

Reg. 614, 633-34 (Jan. 1, 1985) (new products produced from the reclamation of solid waste are not 

themselves wastes). As EPA notes, new fuels produced from the processing of non-hazardous secondary 

materials are not wastes even when used for energy recovery because under RCRA only fuels derived from 

hazardous wastes must remain regulated under subtitle C of RCRA, not fuels derived from non-hazardous 

secondary materials. 42 U.S.C. 6924(q); 76 Fed. Reg. at 15469. Responding to the argument that all 

combustion is per se waste disposal, EPA notes:

[M]any equate the burning of any secondary material to discard, as some commenters have argued. This 

approach does not take into account that the secondary material has in fact been produced in a process that 

uses the discarded material as a feed stream to produce a safe fuel product that is a valuable commodity and 

sold in the marketplace no differently than traditional fuels. We view such an approach being a common 

sense interpretation of the statutory definition of solid waste under RCRA.

75 Fed. Reg. 31844, 31877 (Jun. 4, 2010).2

 

2 We would also note that the case law relied upon by those who argue that products cannot be produced from 

discarded material addresses the status of discarded material before it is processed, and not the status of the new 

products that are the result of processing. United States v. ILCO, Inc., 996 F.2d 1126 (11th Cir. 1993) (addressing 

the status of lead plates removed from batteries and used as feedstock for a secondary lead smelter, not the status of 

any lead ingots produced and sold by the smelter); Owen Electric Steel Co. of S.C. v. Browner, 37 F.3d 146 (4th 
40

Finally, when evaluating whether discard is occurring, it is appropriate to examine intent. See American 

Petroleum Institute v. EPA, 216 F.3d 50, 58 (D.C. Cir. 2000) (it is arbitrary and capricious to ignore the 

motivation behind the recycling activity when determining whether a material is a waste) (hereinafter API 

II); OSWER Directive 9441.1989(19) (Apr. 26, 1989) (EPA-HQ-RCRA-2008-0329-0433) (attached). 

Where the intent of combustion is legitimate energy recovery, not disposal, an alternative fuel is not a 

waste. See 76 Fed. Reg. 80452, 80483 (Dec. 23, 2011) (noting resinated wood is not a waste because the 

purpose of burning these wood residuals is not to destroy or discard them). Intent can be discerned from 

the actions of persons managing the alternative fuel, including the fact that the fuel is a market 

commodity. Another way of discerning intent is the use of the fuel. Where a fuel is used in the same way 

for the same purpose as a traditional fuel, it is functionally equivalent and combusting the alternative fuel 

is legitimate use, not discard. 40 C.F.R. 241.4(b)(5)(2).

The combustion of C&D wood, CTRTs, and PRRs is not the discard of solid waste. Instead, these 

materials are either processed into new fuel products and, in some cases, are combusted as part of a 

continuous industrial process by the generating industry itself. Under either set of facts, these materials

are combusted with the intent to replace the energy that would otherwise need to be provided by fossil 

fuels or other traditional fuels and thus are functionally the same as those fuels. As such, listing these 

alternative fuels as non-waste fuels under section 241.4 is fully consistent with RCRA.

Response: EPA views these comments as a repeat of legal issues already resolved in the NHSM rules 

issued in 2011 and 2013. Moreover, on June 3, 2015, the D.C. Circuit denied several petitions for 

review challenging aspects of the NHSM rule. See Solvay USA Inc. v. Environmental 

Protection Agency. Citation: 45 ELR 20107. No. 11-1189, (D.C. Cir., 06/03/2015). EPA does not 

believe it is necessary to go over these general arguments. EPA does note that these comments, in 

general, seem to ignore the contamination criterion of the legitimacy criteria, which was upheld 

by the D.C. Circuit. 

Comment:

Several commenters [0076.1, 0077, 0081, 0084, 0085, 0086, 0089, 0093, 0102, 0103, 0105] expressed 

general support for EPA’s proposed rule to categorically determine that construction and demolition 

wood, paper recycling residuals, and creosote-treated railroad ties are non-waste fuels. Commenters 

[0076.1, 0081, 0086, 0087, 0088] reiterated that processed construction and demolition wood, paper 

recycling residuals, and creosote treated rail road ties (CTRTs) are each a valuable commodity, provide 

significant heat recovery, displace fossil fuel usage, and emit small amounts of pollutants. Some 

commenters [0087, 0089, 0102, 0103], however, expressed their support with the caveat that certain 

revisions to the provisions be made.

Response: The Agency thanks the commenters for their feedback. Please refer to the preamble of 

the final rule for details regarding any changes made to the proposed regulations.

Comment:

Several commenters [0073, 0076.1, 0080, 0083.1, 0084, 0085, 0086, 0087, 0091, 0094, 0100, 0102, 

0103] expressed general support for the proposed non-waste listing of construction and demolition (C&D) 

debris. Many of these commenters [0073, 0084, 0091, 0094, 0100, 0102, 0103] explained that the 

 

Cir. 1994) (addressing the status of slag that is stored and cured before it is sold as aggregate to the construction

industry, not the status of the aggregate).
41

inclusion of C&D wood processed according to best management practices as a non-waste fuel would 

increase use of these valuable fuel products, promote energy recovery from clean fuel, reduce GHG 

emissions, and result in less use of landfill capacity. 

Commenters [0084, 0091, 0100, 0102, 0103] remarked that C&D wood fuel are legitimate alternative 

fuels and not wastes, and that this is supported by the Resource Conservation and Recovery Act (RCRA). 

Two commenters [0073, 0084] stated that the proposal is consistent with current regulations and practices 

in California, which recognize biomass-to-energy as a source of renewable energy. Once commenter 

[0091] stated they obtained approvals from the State of Michigan’s Department of Environmental Quality 

(MDEQ) exempting these types of material from solid waste classification as source/site separated wood.

Four commenters [0076.1, 0083.1, 0084, 0100] expressed their approval regarding the proposed 

categorical listing’s allowance of material to be considered clean biomass without having to test each 

batch of wood for contaminant levels. 

Response: The Agency thanks the commenter for their feedback.

Comment:

Several commenters [0076.1, 0079, 0085, 0086, 0088] expressed general support for the EPA’s proposal 

to include the combustion of PRRs as a non-waste fuel. One commenter [0086] also offered agreement 

with the PRR storage facts the EPA cited when proposing the non-waste categorization. Another 

commenter [0076.1] contended that PRRs combusted by the generating industry cannot be considered 

wasted under applicable D.C. Circuit precedent, AMC I, at 1186, 1192-93; “materials recycled in an 

ongoing industrial process are not discarded and materials that are destined for beneficial use by the 

generating industry itself are not waste because such materials are not part of the waste disposal 

problem.” One commenter (0079) supported the proposed PRR non-waste determination, pending receipt 

of the additional information requested in the preamble. 

Response: The Agency thanks the commenters for their support and refers the commenters to Sections 

V.B.3 and V.B.6 of the preamble to the final rule for further discussion regarding the categorical listing of 

PRRs as a non-waste fuel.

0081

EPA has stated that "This categorical non-waste determination allows these materials to be combusted as 

a product fuel in units subject to the section 112 CAA emission standards, without being subject to a 

detailed case-by-case analysis of the material(s) by individual combustion facilities." The cement industry 

appreciates this, and agrees with EPA that simplifying the rules and the process "provides a procedural 

benefit" and is critical to effective implementation that can be utilized with added certainty for the 

regulated community and the state agencies. We also agree that the increased regulatory clarity and 

certainty that will be provided by EPA finalizing this rule will undoubtedly further stimulate increased 

alternative fuel use by cement kilns, which results in life cycle benefits as stated in the preamble.

Response: EPA thanks the commenter for their feedback.

0098

CEMEX facilities already utilize alternative fuels that contain some of the materials addressed in this 

proposed rulemaking, including C&D Wood, utility poles, and railroad ties. The proposed categorization 
42

of these materials as non-waste fuels will allow CEMEX to further incorporate these materials into our 

fuel streams, enhancing our sustainability efforts.

Response: EPA thanks the commenter for their feedback, and encourages the commenter to carefully 

review the discussion of the specific non-waste fuel categories in the final rule for further details.

0075

GSEGNA concurs with EPA’s evaluation of the first two legitimacy criteria for CTRT.

Response: The Agency thanks the commenter for their feedback. Please see Section V.C.4 of the 

preamble to the final rule for further discussion regarding the Agency’s rationale for the proposed 

listing.

0077

AAR does recognize that the proposed rule is a step in the right direction. 

Response: The Agency thanks the commenter for their feedback.

0079

The division supports the Agency's proposal to include the combustion of CTRTs as a NHSM. 

Response: The Agency thanks the commenter for their feedback.

0082

MAER supports the categorical exemption being proposed for creosote treated railroad ties (CTRT) and 

appreciates the attention that EU.S. EPA has given to the process. 

Response: The Agency thanks the commenter for their feedback.

0086

In the proposed rule, EPA concluded that construction and demolition wood, paper recycling residuals, and 

creosote-treated railroad ties have contaminant levels comparable to traditional fuels. Based on the facts 

presented in the proposed rule, RMA supports EPA’s application of the legitimacy criteria to categorically 

determine that all of the materials in the proposed rule have contaminant levels comparable to traditional 

fuels or otherwise provide particular value for energy recovery purposes.

Response: The Agency thanks the commenter for their feedback. Please see Section V.C for details on 

the Agency’s final determination regarding CTRTs.

0086

In the proposed rule, EPA concluded that construction and demolition wood, paper recycling residuals, and 

creosote-treated railroad ties have contaminant levels comparable to traditional fuels. EPA reached this 

conclusion despite the fact that for construction and demolition wood, there are elevated levels of 

formaldehyde as compared to clean wood and biomass. Even with the higher levels of formaldehyde, 

RMA believes EPA correctly exercised its use of the balancing approach to weigh the legitimacy criteria 

and categorically designate construction and demolition wood as a non-waste fuel. 79 Fed. Reg. 21013-
43

15. Therefore, based on the facts presented in the proposed rule, RMA supports EPA’s application of the 

legitimacy criteria to categorically determine that all of the materials in the proposed rule have 

contaminant levels comparable to traditional fuels or otherwise provide particular value for energy 

recovery purposes.

Response: The Agency thanks the commenter for their feedback.

0086

In the proposed rule, EPA concluded that construction and demolition wood, paper recycling residuals, 

and creosote-treated railroad ties have heating values greater than 5,000 Btu/lb or otherwise provide value 

for energy recovery purposes. EPA reached this conclusion based on the fact that construction and 

demolition wood and creosote-treated railroad ties both have sufficiently high heating values at or above 

6,000 Btu/lb. 79 Fed. Reg. 21013, -24. Although paper recycling residuals typically have heating values 

below 5,000 Btu/lb, EPA recognized their energy recovery value, particularly for paper recycling mills’ 

boilers. For these types of boilers, wet materials lead to fewer temperature swings and minimized tuning 

adjustments. 79 Fed. Reg. 21018-19. Therefore, based on the facts presented in the proposed rule, RMA 

supports how EPA applied the legitimacy criteria to categorically determine that all of the proposed 

materials have meaningful heating values or otherwise provide value for energy recovery purposes.

Response: The Agency thanks the commenter for their feedback. Regarding this criterion, the Agency 

is adopting its determination as proposed.

0086

In the proposed rule, EPA concluded that construction and demolition wood, paper recycling 

residuals, and creosote-treated railroad ties are managed as valuable commodities. EPA reached 

this determination in the proposed rule based on the fact that creosote-treated railroad ties, after 

sorting, are typically delivered to end-users, combined with biomass fuels, and transferred to the 

combustion unit. Based on these facts presented in the proposed rule, RMA supports how EPA 

applied the legitimacy criteria to categorically determine that these materials are delivered and 

stored in a manner similar to traditional fuels and are therefore managed as valuable commodities.

Response: The Agency thanks the commenter for their feedback.

0088

The CTRT market as fuel is well-established and mature. Power plant owners routinely pay for the CTRT 

to use as fuel. The Association supports the inclusion of CTRTs as a non-waste fuel.

Response: The Agency thanks the commenter for their feedback. 
44

0100

We are especially in support EPA's proposal to list construction and demolition (C&D) wood fuel 

and creosote treated railroad ties (CTRTs) as non-waste fuels under 40 CFR section 241.4. The 

conclusion that these materials are legitimate alternative fuels and not wastes is supported by the 

Resource Conservation and Recovery Act (RCRA) and by the record before the Agency. Further, 

listing these materials as non-wastes will allow the continued and increased use of these materials 

as valuable fuel products.

We agree that the combustion of C&D wood and CTRTs as alternative non-waste fuels under 

§241.2 is appropriate when combusted with the intent to replace the energy that would otherwise 

need to be provided by fossil fuels or other traditional fuels. As such, listing these alternative 

fuels as non -waste fuels under section 241.4 is fully consistent with RCRA.

Response: The Agency thanks the commenter for their feedback. Please see Section V.C of the 

preamble to the final rule for detailed discussion regarding this categorical listing.

0102

C&D wood and CTRTs have long been relied upon as a valuable alternative fuel, and are not solid wastes 

under the Resource Recovery and Conservation Act (RCRA) and applicable case law. The record amply 

demonstrates that these materials meet the “legitimacy criteria” that EPA has established for qualification 

as a categorical non-waste fuel. They are managed as a valuable commodity, have meaningful fuel value, 

are used to recover energy, and contain contaminants comparable to those in the traditional fuels wood 

and fuel oil.

Response: The Agency thanks the commenter for their feedback. Please see Section V.C of the 

preamble to the final rule for detailed discussion regarding this categorical listing.

0103

ReEnergy is in favor of the Agency’s proposal to list various forms of treated wood, including creosote 

treated railroad ties (“CTRTs”), as non-waste fuels under 40 CFR Section 241.4. The Resource 

Conservation and Recovery Act (RCRA) and the record before the Agency supports the conclusion that 

these materials are legitimate alternative fuels, not wastes.

The record also supports use of CTRT as non-waste fuel in accordance with the legitimacy criteria specified 

in 40 CFR 142.3(d)(1), which require that the NHSM be managed as a valuable commodity; have a 

meaningful heating value and be used as a fuel in a combustion unit to recover energy; and have 

contaminants at levels comparable to or less than those in the traditional fuel the unit is designed to 

burn.

CTRTs are among woody materials that are combusted with the intent to replace the energy that would 

otherwise need to be provided by fossil fuels or other traditional fuels. As such, listing CTRTs as nonwaste fuels under section 241.4 is fully consistent with RCRA.

Response: The Agency thanks the commenter for their feedback. Please see Section V.C of the 

preamble to the final rule for detailed discussion regarding this categorical listing.
45

INDEX OF COMMENTS COVERED IN THE PREAMBLE

As discussed in the introduction to this document, the comments listed in Table 1 below were considered 

in the development of the preamble and regulations for these final rule amendments and are not repeated 

in this document.

For example, this includes the following type of comments: 

- Comments that were specifically addressed in the preamble. 

- The comment response in the preamble of the final rule amendments applies to the issues 

raised in the comment (although the preamble does not mention the specific comment).

- Summation of the proposed rule aspects or other items that are not substantive points or legal 

arguments (but these were considered within context of the entire comment related to the 

proposal).

Note that the roman numerals after the topic titles indicate the main location where the topics are 

addressed in the preamble of the final rule amendments.

The full comment can be easily located at www.regulations.gov by entering in the Document ID Number.
46

Table 1. Comments Addressed in the Preamble

Document ID Number Commenter Affiliation Commenter Name

C&D Debris: Rationale for Final Rule [V.A.4]

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

C&D Debris: Definition of Construction and Demolition (C&D) Wood [V.A.6.a]

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0079 Energy and Environment Cabinet, The Kentucky 

Division of Waste Management

Anthony R. Hatton

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

EPA-HQ-RCRA-2013-0110-0084 Covanta Energy Corporation (Covanta) Brian Bahor

EPA-HQ-RCRA-2013-0110-0085 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

EPA-HQ-RCRA-2013-0110-0087 Golder Associates Inc. (Golder) on behalf of New 

Hope Power Company (NHPC)

David A. Buff

EPA-HQ-RCRA-2013-0110-0088 National Waste & Recycling Association Sharon H. Kneiss

EPA-HQ-RCRA-2013-0110-0091 Genesee Power Station (GPS) Thomas J. Allen

EPA-HQ-RCRA-2013-0110-0094 Waste Management (WM) Kerry Kelly

EPA-HQ-RCRA-2013-0110-0100 NTH Consultants on behalf of CMS Enterprises Chris Occhipinti

C&D Debris: Contaminant Comparison Criterion [V.A.6.b]

EPA-HQ-RCRA-2013-0110-0072 Minnesota Pollution Control Agency (MPCA) Jeff J. Smith

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0079 Energy and Environment Cabinet, The Kentucky 

Division of Waste Management

Anthony R. Hatton

C&D Debris: C&D Wood Processed from C&D Debris According to Best Management Practices [V.A.6.c]

EPA-HQ-RCRA-2013-0110-0073 American Reclamation Inc. John Carlo

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine
47

Document ID Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2013-0110-0080 Greenleaf Power Craig Bressan

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

EPA-HQ-RCRA-2013-0110-0084 Covanta Energy Corporation (Covanta) Brian Bahor

EPA-HQ-RCRA-2013-0110-0087 Golder Associates Inc. (Golder) on behalf of New 

Hope Power Company (NHPC)

David A. Buff

EPA-HQ-RCRA-2013-0110-0088 National Waste & Recycling Association Sharon H. Kneiss

EPA-HQ-RCRA-2013-0110-0091 Genesee Power Station (GPS) Thomas J. Allen

EPA-HQ-RCRA-2013-0110-0094 Waste Management (WM) Kerry Kelly

EPA-HQ-RCRA-2013-0110-0100 NTH Consultants on behalf of CMS Enterprises Chris Occhipinti

EPA-HQ-RCRA-2013-0110-0102 Treated Wood Council (TWC) Jeffrey T. Miller

EPA-HQ-RCRA-2013-0110-0103 ReEnergy Holdings LLC Larry D. Richardson

C&D Debris: Pentachlorophenol [V.A.6.d.i]

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

EPA-HQ-RCRA-2013-0110-0100 NTH Consultants on behalf of CMS Enterprises Chris Occhipinti

EPA-HQ-RCRA-2013-0110-0079 Energy and Environment Cabinet, The Kentucky 

Division of Waste Management

Anthony R. Hatton

C&D Debris: Formaldehyde [V.A.6.d.ii]

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0081 Portland Cement Association (PCA) Thomas V. Harman

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

EPA-HQ-RCRA-2013-0110-0085 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

EPA-HQ-RCRA-2013-0110-0088 National Waste & Recycling Association Sharon H. Kneiss

C&D Debris: CCA-Treated Wood [V.A.6.d.iii]

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

EPA-HQ-RCRA-2013-0110-0100 NTH Consultants on behalf of CMS Enterprises Chris Occhipinti
48

Document ID Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2013-0110-0103 ReEnergy Holdings LLC Larry D. Richardson

C&D Debris: Trained Operators [V.A.6.d.iv]

EPA-HQ-RCRA-2013-0110-0071 Air Quality Bureau of Iowa Department of Natural 

Resources (DNR)

Catharine Fitzsimmons

EPA-HQ-RCRA-2013-0110-0072 Minnesota Pollution Control Agency (MPCA) Jeff J. Smith

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0079 Energy and Environment Cabinet, The Kentucky 

Division of Waste Management

Anthony R. Hatton

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

EPA-HQ-RCRA-2013-0110-0084 Covanta Energy Corporation (Covanta) Brian Bahor

EPA-HQ-RCRA-2013-0110-0085 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

EPA-HQ-RCRA-2013-0110-0100 NTH Consultants on behalf of CMS Enterprises Chris Occhipinti

C&D Debris: Written Certification [V.A.6.d.v]

EPA-HQ-RCRA-2013-0110-0071 Air Quality Bureau of Iowa Department of Natural 

Resources (DNR)

Catharine Fitzsimmons

EPA-HQ-RCRA-2013-0110-0072 Minnesota Pollution Control Agency (MPCA) Jeff J. Smith

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0079 Energy and Environment Cabinet, The Kentucky 

Division of Waste Management

Anthony R. Hatton

EPA-HQ-RCRA-2013-0110-0081 Portland Cement Association (PCA) Thomas V. Harman

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

EPA-HQ-RCRA-2013-0110-0084 Covanta Energy Corporation (Covanta) Brian Bahor

EPA-HQ-RCRA-2013-0110-0085 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

EPA-HQ-RCRA-2013-0110-0094 Waste Management (WM) Kerry Kelly

EPA-HQ-RCRA-2013-0110-0098 CEMEX Satish Sheth

EPA-HQ-RCRA-2013-0110-0100 NTH Consultants on behalf of CMS Enterprises Chris Occhipinti

C&D Debris: Cement Kilns Using Processed C&D Wood [V.A.6.e]

EPA-HQ-RCRA-2013-0110-0081 Portland Cement Association (PCA) Thomas V. Harman

EPA-HQ-RCRA-2013-0110-0098 CEMEX Satish Sheth

PRRs: Rationale for Final Rule [V.B.4.b]
49

Document ID Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2013-0110-0081 Portland Cement Association (PCA) Thomas V. Harman

EPA-HQ-RCRA-2013-0110-0098 CEMEX Satish Sheth

PRRs: Meaningful Heating Value [V.B.6.a.i]

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0081 Portland Cement Association (PCA) Thomas V. Harman

EPA-HQ-RCRA-2013-0110-0086 Rubber Manufacturers Association (RMA) Jesse E. Levine

PRRs: Other Discarded Materials [V.B.6.a.ii]

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0081 Portland Cement Association (PCA) Thomas V. Harman

PRRs: Combustion Off-Site [V.B.6.a.iii]

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0085 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

EPA-HQ-RCRA-2013-0110-0081 Portland Cement Association (PCA) Thomas V. Harman

EPA-HQ-RCRA-2013-0110-0088 National Waste & Recycling Association Sharon H. Kneiss

EPA-HQ-RCRA-2013-0110-0098 CEMEX Satish Sheth

PRRs: Definition of PRRs [V.B.6.b]

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

CTRTs: Rationale for Final Rule [V.C.4]

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

EPA-HQ-RCRA-2013-0110-0093 Railway Tie Association (RTA) James C. Gauntt

EPA-HQ-RCRA-2013-0110-0097 Biomass Power Association (BPA) Robert E. Cleaves
50

Document ID Number Commenter Affiliation Commenter Name

CTRTs: Use of Multiple Fuels [V.C.6.a.i]

EPA-HQ-RCRA-2013-0110-0078 Air Quality Environmental Services, Xcel Energy 

Services, Inc.

Richard A. Rosvold

CTRTs: Additional Approach [V.C.6.a.ii]

EPA-HQ-RCRA-2013-0110-0071 Air Quality Bureau of Iowa Department of Natural 

Resources (DNR)

Catharine Fitzsimmons

EPA-HQ-RCRA-2013-0110-0075 GDF SUEZ Energy Generation North America, Inc. 

(GSEGNA)

Kevin R. Cahill

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0077 Association of American Railroads (AAR) Louis P. Warchot, Michael J. Rush

EPA-HQ-RCRA-2013-0110-0078 Air Quality Environmental Services, Xcel Energy 

Services, Inc.

Richard A. Rosvold

EPA-HQ-RCRA-2013-0110-0079 Energy and Environment Cabinet, The Kentucky 

Division of Waste Management

Anthony R. Hatton

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

EPA-HQ-RCRA-2013-0110-0085 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

CTRTs: Additional Comments [V.C.6.b]

EPA-HQ-RCRA-2013-0110-0071 Air Quality Bureau of Iowa Department of Natural 

Resources (DNR)

Catharine Fitzsimmons

EPA-HQ-RCRA-2013-0110-0075 GDF SUEZ Energy Generation North America, Inc. 

(GSEGNA)

Kevin R. Cahill

EPA-HQ-RCRA-2013-0110-0076.1 American Forest & Paper Association (AF&PA), 

American Wood Council (AWC), Biomass Power 

Association (BPA), Construction & Demolition 

Recycling Association (CDRA) and National 

Association of Manufacturers (NAM)

Susan Bodine

EPA-HQ-RCRA-2013-0110-0077 Association of American Railroads (AAR) Louis P. Warchot, Michael J. Rush

EPA-HQ-RCRA-2013-0110-0080 Greenleaf Power Craig Bressan

EPA-HQ-RCRA-2013-0110-0081 Portland Cement Association (PCA) Thomas V. Harman

EPA-HQ-RCRA-2013-0110-0082 ALL4 Inc. (ALL4) Dan Holland

EPA-HQ-RCRA-2013-0110-0083.1 DTE Energy Services (DTEES) Donald Januszek

EPA-HQ-RCRA-2013-0110-0085 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

EPA-HQ-RCRA-2013-0110-0090 Archer Daniels Midland Company (ADM) Mark Calmes

EPA-HQ-RCRA-2013-0110-0093 Railway Tie Association (RTA) James C. Gauntt

EPA-HQ-RCRA-2013-0110-0097 Biomass Power Association (BPA) Robert E. Cleaves

EPA-HQ-RCRA-2013-0110-0098 CEMEX Satish Sheth
51

Document ID Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2013-0110-0100 NTH Consultants on behalf of CMS Enterprises Chris Occhipinti

EPA-HQ-RCRA-2013-0110-0102 Treated Wood Council (TWC) Jeffrey T. Miller

EPA-HQ-RCRA-2013-0110-0103 ReEnergy Holdings LLC Larry D. Richardson

EPA-HQ-RCRA-2013-0110-0106 Biomass Power Association (BPA) Robert E. Cleaves

EPA-HQ-RCRA-2013-0110-0125 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

Technical Corrections [VI]

EPA-HQ-RCRA-2013-0110-0071 Air Quality Bureau of Iowa Department of Natural 

Resources (DNR)

Catharine Fitzsimmons

State Authority [VIII]

EPA-HQ-RCRA-2013-0110-0096 Association of State and Territorial Solid Waste 

Management Officials (ASTSWMO)

Charles Johnson