# 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

### January 201 6



## 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 (M C 5304P ) Washington , D Ci 

## 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. Writt en 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

................................ ................................ ..................... 38ii



### INDEX OF COMMENTS COVERED IN THE PREAMBLE 45
Table 1. Comments Addressed in the Preamble 461

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 ther efore 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 th ose comments and respon ses 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
unus ed 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 pro posed 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, r educe 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 r e
- 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 are2

particularly important to NHPC because NHPC has been utilizing recycled wood fuel for its cogeneratio n 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 gase s. Response: The Agency thanks the commenter for their feedback . T he 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 prop osed 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

W e 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 negative

sorting facili ty. 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 s ection 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 green3

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, home owners, 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 materi als 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. W e 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 remov al 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 “...th at receive and process positive sorted C&D wood”. These facilities are not subject to fines removal. See s ection 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 accordi ng 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 as4

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. T he 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 an y resinated wood prior to processing the C&D debris. Please see preamble s ection s 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 ma y 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 whet her 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 NH SMs 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 indust rial production process in the furniture manufacturing industry. Please see s ection s 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 CCA

treated 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). S ee s ection V.A.6.d.iii of the pr eamble 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 Agenc y 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 t o 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
s cale 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 man agement 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 provid e 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 fo r 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 constru ction 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 sa mpling 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 condi tions 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 assur ance. 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 Guideli nes) 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 certificati on from the C&D processor that trained operators have processed the materials in conformance with the best7

management practices. This requirement is consistent with the recordkeeping requirements of the “CISWI” and Boiler MACT” Rules. Further, it will offe r 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 incorp orated 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 s ection V.A.6.d.v of the preamble of the propo sed 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 pur chase 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 t o 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 sorte d 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 fo r 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 res inated 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, w hen 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 oth er 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 u nder section 40 CFR 241.4(a)(5) must meet all of the conditions in the r ule 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&D8

wood has been sufficiently processed per section 40 CFR 241.2 and whether the legitimacy criteria have b een 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 leve ls. 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 f lexibility 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 end

user of this fuel. Response: Again, w hen 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 usi ng 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

Res ponse: 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 va lue as do non

waste 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 cont amination 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. S ee preamble section V.B.6.a.ii for further discussion 

## 2. Expans ion 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 cons ider 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 a n 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 disagr ees 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 wou ld 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 Linco ln 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 benef it. 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 ec onomic 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 ma rkets 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 ener gy 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 t ons 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 car bon 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

- T reated Ties, End

- of

- Life Evaluation (Feb. 18, 2010) (EPA

HQ¬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 ha ve 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 hig h

– 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 limit s. 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 ou r 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) be12

unable to p rocure 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 Guidelin es 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 bu rning 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 po wer 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 val ue, 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 al l 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 legiti mate 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 effici ent 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 i ndustry 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 faci lities 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 mo isture 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 Utilities13

Regulatory Policy Act (PURPA) of 1978, which required utilities to purchase power provided by qual ifying 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 Ca lifornia 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 base load 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 ke eping the plant open or closed.
0097 Under EPA’s draft rule, a non

- waste listing is restricted to facilities that ha ve 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 benefit s 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¬ove rview.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 land filling 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 (“renewa ble 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 emiss ions 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 es timates based on the facilities above indicate that biomass conversion facilities result in net negative GHG emissions of14

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 faciliti es 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 utili ze 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 overwhel m 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 rail road 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 approximatel y 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 informati on 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 treate d 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 pro ducts 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 pro duct.

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 simila r handling and storage characteristics. At one15

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 substitu te 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 C TRTs 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

- combusti ng 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
c ontent 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 d ue 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 biom ass 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 the se comment ers may be valid but not
necess arily relevant to whether material is discarded. The key for the facilities discussed in many of the se comment s 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 o f start

- up or shut

- down operations. Since comment ers 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 r eceipt of only railroad ties treated with creosote . The material was16

submitted as part of comments on the proposed for the February 2013 final NHSM rule (EPA

- HQ

RCRA

- 2008

- 0329

- 0829)

. The Agency agrees that not all contracts may contain such stipulations an d has amended similar statement s in the final rule preamble to state that “C ontracts for the purchase and combustion of CTRTs may include fuel specifications limiting contaminants, such as metal , and precluding the receipt of wood treated with preservative s 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 napht h enate. One of our facilities is currently permitted to burn copper napht he nate and would not add contaminants at levels that exceed comparable traditional fuels Response: As discussed in preamble section V.6.C., t he Agency has reviewed information submitted in September and October 2015 on three treated railroad ties, cr eosote

- borate, copper napht h enate, and copper napht h enate

- 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 propo sed 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 determinat ion. 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

— referr ed 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 throu gh 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 recycle d 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 co uld 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 indic ate 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 allow ed in balancing other relevant factors with the legitimacy criteria to determine whether discard occurs.
008017

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 a bility 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 temperatu res 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 t he 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 remainin g 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 characteristic s to liquid fuel oil the physic al 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 n otes 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, the y 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, i n order to legitimately combust CTRT, the unit must be designed to burn both biomas s and fuel oil.
0 090 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 ot her 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 a re 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 burne d 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 th an 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 contamina nt comparison states that the NHSM must contain18

contaminants or groups of contaminants at levels comparable in concentration to those in the tradit i o n al 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. T his 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 fo r 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, t he 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 mate rial 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 nece ssarily 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 , w e 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 e conomic 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) . T his 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 Jac kson (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 so me 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 determina tion of its status as a non

- waste fuel). T he “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 o f 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 oth er 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 se lected 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 comp anies 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 valua ble 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 marketpla ce and still be wastes.
0085
These materials [CTRTs] are not discarded. They have clear value as fuel, are so ld 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. Howe ver, 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 “designe d 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.
Th e 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 th e 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 loc ation 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 co mplete 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, p urchase 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 CF R 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 g roups 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 mea ns 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 that21

CTRTs can only be combusted in units designed to burn biomass an d 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 ye ar; 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 wa ste

. 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

- of

way 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 compani es 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 use d 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. Notwithstandin g this comment, even if EPA believes that CTRTs are discarded, it can still categorize a NH SM 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 h eat 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 CT RTs 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 peri od of time. Therefore, the Agency reasonably conclude d 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 mar ket 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. T he Agency does acknowledge that CTRTs are processed sufficiently to meet the definition of processing in 40 CFR 241 .2, and that CTRTs are treated as22

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 a nd 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 hau l 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 Associa tion 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 a nd 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 w ith 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. Nowhe re 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 th e 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 a23

waste product; they simply get transferr ed 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: T he Agency thanks the commenter for their feedback and recognize s tha t 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, howev er, 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 d iscarded 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 facilit y is designed to burn . F acilities 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 Hea ting 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 mater ial, 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 biomas s material, making it a desirable alternative fuel once the CIRTs are removed from active use. Response to excerpts above : The Agency agrees with the commenter s 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 discus sion 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 rul emaking, EPA requested comments24

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 shou ld 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, GSEG NA 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 contamina nts 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 EP A 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 s hould 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 w orse 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 t he 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 foun d 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 determina tion of whether the contaminant legitimacy criterion is met.
007725

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 contamin ants 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 legitim acy 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 t he method for evaluating scrap tires. 78 Fed. Reg. 9154. When evaluating the composition of scrap tires, EPA did not consider volatiles or semi

volatiles 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 di d 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 mu st 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 legiti macy criteria,” a s discussed in Section V.C of the preamble to the final rule, th ere 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 rema ining 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 C TRT 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 mean s 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.
A s discussed in section V.C.6. of the preamble to the final rule , w ith respect to th e 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 l isting 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 di rtier 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 b e 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 tra ditional fuels besides coal. It is not nec essary 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), EP A

- 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 purchas es 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 ignore27

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 f

uel 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 ot her 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 cons ideration of such facto rs 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 determi nation 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 regulation s 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 informatio n 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 mo dified 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 a bove : 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 u nits 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, a s 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., t he 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. Con ditions 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 lef

t 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 r ecords 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 mo nth, 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 pe rcent of the fuel used on an annua l heat input bases. Although the s e commenter s disagree on the proposed 40 percent limit, we note that other commenters expressed support for this approach. While s tatements from the pulp and paper industry indicate that CT RTs 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 report ed 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. T herefore, the Agency is maintaining the 40 percent usage limitation as a reasonable29

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 Stani slaus 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 meani ngful 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 requi rements 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, Ad ministrator, 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, c urrent 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 va ried 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.

008030

MAER’s experience with the utility/indepen dent 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 ba sis 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 requirem ents 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 th e 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 h ave 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 determi nation of whether the contaminant legitimacy criterion is met and the material is a waste or non

waste . The NHSM rule requires these criteria be analyzed for the material prior to combustion.



### b. Recordkeeping Requirements

0071
EPA asks in the preamble for th e 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 certif ication" 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 , t he 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 c ategorical 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 design ed 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 industr y 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 p ulp 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 ex emption 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 P art 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 consid er 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 se cond 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 4 0 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 both32

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. Pro cessing 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 util ized 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 onl y 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 contami nant 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 a re 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 “bri ght 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 betwe en 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 operat ions 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" numbe r 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 f uel 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 s tat ements from the pulp and paper industry indicat ing 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 an nual 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 non

waste 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 limit s, 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 c hloride (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 envir onment. 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 understan ding 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 fa cilities 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 reflec t 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 add ress 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 ti me frames for NHSMs, section 241.3(d)(1)(i)(A) state d 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 flexibili ty 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 non

waste fuels as an alternative fuel in cement k ilns.

• CEMEX utilizes alternative fuels to reduce dependenc e 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 streams35 such as C&D disaster debris. For example, in the event of a disaster CEMEX is well

positioned to work with communities, relevant state and local agencies, and C&D wood non

waste 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

- sta nding 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 ben eficial 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 wi th 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 c ombustion 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 traditio nal or alternative fuel sources

. Response: The Agency recognizes that c ement 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 Novem ber 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 (se mi

- 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 i s 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 historic al 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 ana lysis 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 PC A 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 wi thin this document for response to these comments. A s 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 traditio nal 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 thes e 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 pro hibit 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 addre ssing 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 sectio n 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 an y conditions applied to the categorical non

- waste determination such as the written certification for C&D material. We encourage
source s to work with their permitting authority to review the provisions of this final rule as well as the applicability sectio ns 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 regulat ed 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 natur e 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, w hen a material is categorically lis ted 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 4038

CFR 241.3 self

- implementing provisions of the NHSM rule. Accordingly, the Agency has concluded that t he 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. Out side the Scope of the NHSM rulemaking 0072

T he 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 resi dential 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 incor porated 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 fin al 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 C onservation 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

R CRA 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 i ts 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 concer ns 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” can not 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, th en 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 second ary 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 (4th40

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

- 20 08

- 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 the se 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 di scard 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 combus ted 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, o n June 3, 2015, t he 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 sma ll 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

- w aste 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 o f 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 wast es, 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 r enewable 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 comme nter 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 pro cess 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 determin ation, 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 categorization42

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 divisio n 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 support s 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 for maldehyde 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 wo od 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 contaminan t 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 cre osote

- 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, parti cularly 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 E PA 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

. Regardi ng 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 conclus ion 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 incr eased 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 provi ded 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 us ed 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 r egarding 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 4 0 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 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.45

INDEX OF COMMENTS COVERED IN THE PREAMBLE As discussed in the introduction to this document, t he comments listed in Table 1 below were considered in the development of the preamble and regulations for t hese 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 enti re 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 Pr actices [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 Bodine47

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 Port l and 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 W ood [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 Occhipinti48

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 Port l and 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 Port l and 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 Port l and 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 Port l and 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 Port l and 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 Port l and 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. Cleaves50

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 Port l and 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 Sheth51

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