Mr. Geo rge Faison Office of Re sou rce Co ns ervat i o n and Recov e r y Materia ls Rec ove ry a nd Wa s te M anage ment Division M C 5304P U.S. Environmenta l Protection A ge nc y 1 200 P e nn sylvania Ave
. , N.W. Wa s hington, D. C. 20460 Sep te mber 26, 20 14 

### Re : Supp le menta l Co mm e nts o f the Co un c il oflndu s tri a l Bo il er Own er s (C IBO ) Propo se d NHSM Ru le 79 Fed
. R eg . 21 , 006 {Apr. 14, 2014) Docket No
. EPA

- HQ

- RCRA-2013

- 0110 De a r Mr. Fai son: The se comments s upplement C fBO comm e nt s o n E P A ' s proposed rul e " Add itio n s to Li st of Section 241.4 Catego rical Non-Waste Fue ls," 79 Fe d. Reg. 2 1 , 006 (Ap r . 14, 20 14). 1 C IBO s tron g ly s up ports a regulato ry o utc o me that a ll ows CIBO members to continu e the traditional practice o f usin g c re oso te treate d railroad ti es ( C TRT s) as fu el. Con s is te nt with it s regulations , E PA s ho uld take int o account and give appro priate emphas is to seve ra l fact o r s that demo n strate CTRTs are n o n -was te fue l whe n co m bu s te d. E PA pro pose s to add CTRT to th e li st of n o n-waste categorical fue ls o nl y i f the y are " co mbu sted in unit s designed to bum both biomass and fuel oil" (79 Fed. Reg. 21 , 006) 2 or in pulp and paper fac il ities sw itchin g from fuel o il to natur a l gas o nl y if CTRTs constitute 40% or less of the fue l burned o n a mo nthl y bas i s . 79 Fed. Reg. 2 1 , 028. E P A's rat i o n a le for thi s proposal is th at th e contaminan t l eve ls in CTRT a re compa rabl e to both bioma ss and fue l o il when con s ide red toge th e r , but l evel s o f certa in co mp o und s lik e PAH are hi g her than bi o m ass alone. E PA ha s stated that elevated l eve ls of co ntaminant s in a material may ind icate that the materi a l is being di sca r ded. We do n o t agree th a t under the govern in g r eg u latio n s, a co nt ami nant compariso n s h owi n g some co mpa rably hi g he r chemical co n s tituent l eve l l ead s ine xorab ly to th e co nc lu s io n that the material is a was te
.

1 C IBO Comme nt s o n the Proposed Rule, E P A -HQ-RC RA

- 20 1 3 -0110 -0088. 2 EPA a lso seeks co mment on a n a pproach th at wou ld d e fi n e CTRT s as fue l if combu ste d in pu l p and paper sources designed to burn

**bioma s~**  and fuel o il that are switch in g to natu ra l gas. 79 Fed. Reg. 21,028. C IBO s upp o rt s an y no n-wa s te d eterminati o n that allows for u se of C TRT s as a f u e l. However, the approac h outl ined in th e proposal d oes not cover a ll so urc es th at u se CTRTs and es tab li s he s a limitation on per centage ofC TRT u sage tha t is unreaso nabl y low . Counci l of l ndustrial l3 oill·r Owners 6!!(11 h.cnncdy Road. uite I 02. \\ arn:n ton. \ '.-\ 20 1 87 P ho ne: 5 4 0.394.9043 Fax: 54!U49.9li50 E- i\lail :

**bo@cibo.~>r.g**Section 241.4(b)(5)(ii) specifica ll y recogni zes the complexi ty of the se d e terminati o n s and provides EPA w ith the discretion to rely on other specified factors , or any "o ther r e levant factors as approp riate," to sup port 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 s h ow ings that th e use of the NHSM is " inte g rally tied to th e indu s trial production process ... functionally th e sa me as the comparable traditional fuel, o r other r e l

eva nt factors as appropriate." 40 CFR 241.4(b)(5)(ii). Although EPA may make a determination based on ANY ONE of these facto r s, CTRT meets ALL of these fact ors. 

### CTRTs are integrally ti ed to the industrial p rodu ction process Use ofCTRTs a s fuel is integra lly tied to the indu str ial production process. Facilities burn particular fuels based on many factors , includin g combustion unit de s ign, regulation requirements , availability, and cost. Fac iliti es that burn C TRTas 100 percent oftheir fuel mix und o ubtedly re ly o n the use of CTRT as a renewable en e rgy source (e.g., to meet s tate renewable portfolio stand ards)
. Their use of CTRT is integral to their mandatory comp lianc e with state or local rules and those facil ities have adapted th e ir proce sses to the fue l mix permitted by their re g ulatory juri s dictions. CTRT is also integral to the economic viability of those faci liti es . Facilities that burn C TRT as part of their fuel mix rel y o n it as part of a balancing of fuel co sts and also as a mate rial that improves combustion of"wet" biomass fuels. If the power sector replaced CTRT fuel with who l e tree chips , less biomass would be available as feedstock and fuel for the forest products industry and costs would incr ease. Where a facility is not able to burn CTRT as fuel and the re sult is an increase in energy co st, that use of CTRT is demonstrably integrally tied to the facility 's production process . 

### CTRTs are fun ctionally the same as biomass CTRT fuel is functionally the same as the comparable traditional fuel

- biomass. C TRT fuel is delivered to faci li ties in the sa me manner, s to red in the sa me manner , and delivered to the boiler in the same manner as bioma ss . State agencies hav e reco g nized that CTRT fuel is fu n ctio nall y the same as biomass fuel when they hav e iss u ed air permits for its use as fuel. 

### See e.g., GDF SUEZ Comment s on Proposed Rule , EPA-HQ-RCRA-20 13-0 II 0-0075. Boilers are not specifically de s ig ned for CTRT; this material is burned in boilers de sig ned to burn biomass. 

### Mul tiple other re levant factors show CTRT are a non-waste fuel The record for thi s proposed rule supports a finding that CTRTs are n o n-waste fuel. Among the oth er r ele vant factors that are approp riate for EPA consideration and prov ided by documents in the record are th ese: • CTRTs are not di sposed of as waste but are mana ged/ recycl ed purposefull y for u se as a fuel. • CTRTs meet all of th e legiti mac y criteria when compared to biomass except for level of 

### PAH. • State air permitting agencies hav e hi sto ri cally 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 ofCT RT are equivalent to a ir em i ss i o n s from combustion of other types of biomass. • CTRTs wou l d be landfilled in stead o f burned if E PA determine s that they are so lid waste when combusted in boilers that d o no t burn both biomass and o il. • A diverse ene rgy portfolio is important and energy costs f or f acilities burning C TRTs wou ld in crease if CTRTs are deemed so lid waste
. • Determ in ati o n that CTRT a re solid waste will n egative ly imp ac t s mall bu s in esses that process CTRT as fuel fo r sa l e to industrial faciliti es . • CTRTs are integral to the economic v iab ility of seve ra l facilities , as noted in the rec ord. 

### See Archer Daniels Midland Company Co mme nt s o n Proposed Rule, EPA-HQ-RCRA2013-0110-0090

. • Many boilers burning so lid fuel are permitted to burn non-wa s te fu e l oil by distributing it on o r otherw ise combining it with portions o f the sol id fuel that is then delivered to the combustion unit using the sol id fuel feed mechanisms, so a separate fuel delivery mechani sm 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 iti on to the se relevant factors , EPA sho uld also cons ider the a ir em iss io n s from combustion of CT RTs , as compared to b io m ass. As refiected by th e preamble to the proposed rule and assuming EPA has reviewed and analyze d all infonnation included in the docket, E P A is awa re of m any stud ies s h owi ng that air emissions from combustion of C TRT are e quivalent to air emissions from ot her types of biomass. We unders tand that this is a waste definiti o n rule that focuses on contaminants present in the fuel , but the purp ose of the rule is to determine wh ich air emission standard will apply to spec ifi c C lean Air Act-regulated combus t ion units. A ir emissions are clearly relev ant to th e discu ss ion. CIBO members have prov ided additional data on contaminant l eve ls in CTRT and combu st ion ash and th e ir effect on air emissions. 

### See, A rc h e r Dani e ls Mid la nd Company Comments o n Prop ose d Rule , E P A-HQ -RCRA- 20 1 3 -0110- 0090, Attachment A; GDF SUEZ Comments on Pr oposed Rule , EPA-HQ -RCRA- 20 1 3 -011 0- 0075. T h ese data illustrate that CTRT are func ti o nall y eq uivalent from an environmental perspective, to othe r biomass fuels. The data also s u pport a findin g by E PA based on appropriate, r e l

eva nt factors, that would a ll ow the continued use of CTR T as fu e l

- without the fuel oil and 40% limiting co nditi o n s- consistent with th e treatment of other biomas s materials with similar air emission profiles. Coutts have re cognized broad di sc retion by EPA to in terpret regulato ry te rms , which EPA can exerc ise und e r § 24 1 .4(b)(5)(ii) when makin g non-wa s te determinations. 

### See, e . g . , 

### E th

yl Corp. v. EPA, 541 F2d I , 28 ( D.C . C ir
. 1976) "[t]he Adm inistr ator m ay apply his experti se to draw conclus io n s from s uspected , but not completely substa nti ated relationships between facts, from trends among facts, from theoretical projections from imp e rfect data , fro m probative preliminary data no t ye t certifiable as 'fac t ,' and th e like. " Cou rt s hav e r ecognized EPA's di sc reti o n in other sim ilar co ntext s, suc h as "[w] h e re an indu s trial by-product m ay be c h aracterized as di sca rd ed o r ' in process' material , EPA's choice of characterization is ent itled to deference." 

### American Petroleum Institute v. 

### EPA, 2 1 6 F.3d 50 (D.C. Cir
. 2000) qu oti ng 

### American Mining Congress v. 

### EPA, 907 F.2d at 1186. These instances in caselaw show that under the present circumstances, eve n if a material fails to meet th e l egitimacy cr it e r ia, EPA has the statutory interpretive

3authority, bolstered by express regulatory authority under§ 24 l. 4(b)(5)(ii) , to rely on many other relevant factors when making a non-wa s te determination. Finally , we n o te that no party has suggested that the non-waste determination for CTRTs is unlawful or inappropriate. Commenters h ave suggested o nly ways to amend the determinati o n to achieve consistency in th e u se of CTRT and oth er bioma ss materia ls as non-waste fuel. EP A should use the data and rationale in the record to finalize a non-waste determination that all o ws for the use ofCTRTs in combus ti on unit s without limiting factors tied to s pecific fuel-based boiler designs o r percentages of fue ls combusted. If you have questions o r need clarification , plea se feel free to contact me.

4 Sincerely you r s, 

### I

s / Rob e rt D. Bessette R

obert D. Bes se tte President