Mr. George Faison 

Office of Resource Conservation and Recovery 

Materia ls Recovery and Waste Management Division 

MC 5304P 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave., N.W. 

Washington, D.C. 20460 

September 26, 20 14 

Re: Supplementa l Comments of the Council oflndustrial Boiler Owners (CIBO) 

Proposed NHSM Rule 79 Fed. Reg. 21 ,006 {Apr. 14, 2014) 

Docket No. EPA- HQ- RCRA-2013- 0110 

Dear Mr. Faison: 

These comments supplement CfBO comments on EPA's proposed rule "Additions to List of 

Section 241.4 Categorical Non-Waste Fuels," 79 Fed. Reg. 2 1,006 (Apr. 14, 20 14). 1 CIBO 

strongly supports a regulatory outcome that allows CIBO members to continue the traditional 

practice of using creosote treated railroad ties (CTRTs) as fuel. Consistent with its regulations, 

EPA should take into account and give appropriate emphasis to several factors that demonstrate 

CTRTs are non-waste fue l when combusted. 

EPA proposes to add CTRT to the list of non-waste categorical fue ls only if they are "combusted 

in units designed to bum both biomass and fuel oil" (79 Fed. Reg. 21 ,006)2 

or in pulp and paper 

facilities switching from fuel oil to natura l gas only if CTRTs constitute 40% or less of the fue l 

burned on a monthly basis. 79 Fed. Reg. 2 1,028. EPA's rationale for this proposal is that the 

contaminant leve ls in CTRT are comparable to both biomass and fue l oil when considered 

together, but levels of certain compounds like PAH are higher than biomass alone. EPA has 

stated that elevated levels of contaminants in a material may indicate that the materia l is being 

discarded. We do not agree that under the govern ing regulations, a contaminant comparison 

showing some comparably higher chemical constituent leve l leads inexorably to the conclusion 

that the material is a waste. 

1 CIBO Comments on the Proposed Rule, EPA-HQ-RCRA-20 13-0110-0088. 2 EPA also seeks comment on an approach that would define CTRTs as fue l if com busted in pulp 

and paper sources designed to burn biomas~ and fuel oil that are switching to natural gas. 79 

Fed. Reg. 21,028. CIBO supports any non-waste determination that allows for use of CTRTs as 

a fuel. However, the approach outlined in the proposal does not cover all sources that use CTRTs 

and establishes a limitation on percentage ofCTRT usage that is unreasonably low. 

Counci l of lndustrial l3oill·r Owners 

6!!(11 h.cnncdy Road. uite I 02. \\ arn:nton. \ '.-\ 20 187 

Phone: 540.394.9043 Fax: 54!U49.9li50 

E-i\lail: bo@cibo.~>r.g 
Section 241.4(b)(5)(ii) specifically recognizes the complexity of these determinations and 

provides EPA with the discretion to rely on other specified factors, or any "other relevant factors 

as appropriate," to support a non-waste determination without regard to the fue l oil and 40% 

limitations as proposed. EPA may determine that a material is a non-waste fuel based on the 

showings that the use of the NHSM is " integrally tied to the industrial production process ... 

functionally the same as the comparable traditional fuel, or other relevant factors as appropriate." 

40 CFR 241.4(b)(5)(ii). Although EPA may make a determination based on ANY ONE of these 

factors, CTRT meets ALL of these factors. 

CTRTs are integrally tied to the industrial production process 

Use ofCTRTs as fuel is integrally tied to the industrial production process. Facilities burn 

particular fuels based on many factors, including combustion unit design, regulation 

requirements, availability, and cost. Facilities that burn CTRTas 100 percent oftheir fuel mix 

undoubtedly rely on the use of CTRT as a renewable energy source (e.g., to meet state renewable 

portfolio standards). Their use of CTRT is integral to their mandatory compliance with state or 

local rules and those facil ities have adapted their processes to the fue l mix permitted by their 

regulatory jurisdictions. CTRT is also integral to the economic viability of those faci lities. 

Facilities that burn CTRT as part of their fuel mix rely on it as part of a balancing of fuel costs 

and also as a material that improves combustion of"wet" biomass fuels. If the power sector 

replaced CTRT fuel with whole tree chips, less biomass would be available as feedstock and fuel 

for the forest products industry and costs would increase. Where a facility is not able to burn 

CTRT as fuel and the result is an increase in energy cost, that use of CTRT is demonstrably 

integrally tied to the facility's production process. 

CTRTs are functionally the same as biomass 

CTRT fuel is functionally the same as the comparable traditional fuel - biomass. CTRT fuel is 

delivered to faci lities in the same manner, stored in the same manner, and delivered to the boiler 

in the same manner as biomass. State agencies have recognized that CTRT fuel is fu nctionally 

the same as biomass fuel when they have issued air permits for its use as fuel. See e.g., GDF 

SUEZ Comments on Proposed Rule, EPA-HQ-RCRA-20 13-0 II 0-0075. Boilers are not 

specifically designed for CTRT; this material is burned in boilers designed to burn biomass. 

Multiple other relevant factors show CTRT are a non-waste fuel 

The record for this proposed rule supports a finding that CTRTs are non-waste fuel. Among the 

other relevant factors that are appropriate for EPA consideration and provided by documents in 

the record are these: 

• CTRTs are not disposed of as waste but are managed/recycled purposefully for use as a 

fuel. 

• CTRTs meet all of the legitimacy criteria when compared to biomass except for level of 

PAH. 

• State air permitting agencies have historically allowed combustion of CTRTs as fuel. 

• Chipped CTRTs are burned as a renewable fuel and can displace use of fossil fuels. 

2 
• Air emissions from combustion ofCTRT are equivalent to air emissions from 

combustion of other types of biomass. 

• CTRTs wou ld be landfilled instead of burned if EPA determines that they are solid waste 

when combusted in boilers that do not burn both biomass and oil. 

• A diverse energy portfolio is important and energy costs for facilities burning CTRTs 

wou ld increase if CTRTs are deemed solid waste. 

• Determ ination that CTRT are solid waste will negatively impact small businesses that 

process CTRT as fuel for sa le to industrial facilities. 

• CTRTs are integral to the economic viability of several facilities, as noted in the record. 

See Archer Daniels Midland Company Comments on Proposed Rule, EPA-HQ-RCRA2013-0110-0090. 

• Many boilers burning solid fuel are permitted to burn non-waste fuel oil by distributing it 

on or otherwise combining it with portions of the solid fuel that is then delivered to the 

combustion unit using the solid fuel feed mechanisms, so a separate fuel delivery 

mechanism for injection of liquid fuel o il into the furnace is not a necessary component 

of a boiler being "designed to burn" fuel oil. 

ln add ition to these relevant factors, EPA should also consider the air emissions from 

combustion of CTRTs, as compared to biomass. As refiected by the preamble to the proposed 

rule and assuming EPA has reviewed and analyzed all infonnation included in the docket, EPA 

is aware of many studies showing that air emissions from combustion of CTRT are equivalent to 

air emissions from other types of biomass. We understand that this is a waste definition rule that 

focuses on contaminants present in the fuel, but the purpose of the rule is to determine which air 

emission standard will apply to specific Clean Air Act-regulated combustion units. Air 

emissions are clearly relevant to the discussion. CIBO members have provided additional data 

on contaminant leve ls in CTRT and combustion ash and their effect on air emissions. See, 

Archer Daniels Midland Company Comments on Proposed Rule, EPA-HQ-RCRA-20 13-0110-

0090, Attachment A; GDF SUEZ Comments on Proposed Rule, EPA-HQ-RCRA-20 13-011 0-

0075. These data illustrate that CTRT are functionally equivalent from an environmental 

perspective, to other biomass fuels. The data also support a finding by EPA based on 

appropriate, re levant factors, that would all ow the continued use of CTR T as fuel - without the 

fuel oil and 40% limiting conditions- consistent with the treatment of other biomass materials 

with similar air emission profiles. 

Coutts have recognized broad discretion by EPA to interpret regulatory terms, which EPA can 

exercise under § 24 1.4(b)(5)(ii) when making non-waste determinations. See, e.g., Ethyl Corp. v. 

EPA, 541 F2d I, 28 (D.C. Cir. 1976) "[t]he Administrator may apply his expertise to draw 

conclusions from suspected, but not completely substantiated relationships between facts, from 

trends among facts, from theoretical projections from imperfect data, from probative preliminary 

data not yet certifiable as 'fact,' and the like." Courts have recognized EPA's discretion in other 

similar contexts, such as "[w]here an industrial by-product may be characterized as discarded or 

' in process' material, EPA's choice of characterization is entitled to deference." American 

Petroleum Institute v. EPA, 2 16 F.3d 50 (D.C. Cir. 2000) quoting American Mining Congress v. 

EPA, 907 F.2d at 1186. These instances in caselaw show that under the present circumstances, 

even if a material fails to meet the legitimacy criteria, EPA has the statutory interpretive 

3 
authority, bolstered by express regulatory authority under§ 24 l.4(b)(5)(ii), to rely on many other 

relevant factors when making a non-waste determination. 

Finally, we note that no party has suggested that the non-waste determination for CTRTs is 

unlawful or inappropriate. Commenters have suggested only ways to amend the determination to 

achieve consistency in the use of CTRT and other biomass materials as non-waste fuel. EPA 

should use the data and rationale in the record to finalize a non-waste determination that allows 

for the use ofCTRTs in combustion units without limiting factors tied to specific fuel-based 

boiler designs or percentages of fue ls com busted. 

If you have questions or need clarification, please feel free to contact me. 

4 

Sincerely yours, 

Is/ Robert D. Bessette 

Robert D. Bessette 

President