Legal Analysis Supporting Listing Railroad Tie Fuel as a Nonwaste under 241.4(a) 

(January 15, 2014) 

As noted in the February 2013 final NHSM Rule, in December 2012 EPA received a 

draft petition from American Forest & Paper Association (AF&PA) and American Wood 

Council (AWC) seeking listing of creosote and borate treated railroad ties as a 

nonwaste fuel. In the preamble to the February 2013 final NHSM rule, EPA identified 

additional information needed to complete its review of creosote treated railroad ties 

and stated the following: 

Assuming that the additional information supports and supplements the 

representations made in the petitioner’s December 6, 2012 draft petition, the 

EPA also expects to propose a categorical listing for this material. To the extent 

that petitioners would like to provide additional information, the Agency will 

consider such information as well. 

78 Fed. Reg. at 9173. 

Since developing the February 2013 final NHSM Rule, EPA has received additional 

information from several entities. In January 2013, EPA received data on the 

polynuclear aromatic hydrocarbon (PAH) content of creosote treated railroad ties from 

the Association of American Railroads. On February 27, 2013, American Forest & 

Paper Association and America Wood Council submitted a paper that responded to the 

questions raised in the February 2013 preamble on behalf of members of the forest 

products industry. Also in February 2013, EPA received a petition to list cross-tie 

derived fuel from M.A. Energy Resources, LLC (MAER), a company that specializes in 

collecting, handling, processing, and distributing specification railroad tie fuel. The 

MAER petition also responded to the questions raised in the February 2013 preamble, 

providing information relating to a variety of industries that utilize railroad tie fuel. On 

December 4, 2013, EPA received a petition from the Treated Wood Council seeking a 

nonwaste determination for several treated woods, including creosote treated wood. 

Finally, on December 19, 2013, EPA received additional information from American 

Forest & Paper Association and the American Wood Council regarding the regulation of 

emissions from the forest products industry boilers that combust railroad tie fuel. 

This record supports an EPA determination that creosote and borate treated railroad 

ties, when collected, processed to meet specifications, and then combusted in stoker, 

bubbling fluidized bed, circulating fluidized bed or hybrid suspension grate boilers, or 

boilers that co-combust railroad ties with other fuels to maintain appropriate Btu levels, 

are not waste when combusted. Based on this record, EPA could propose to list such 

creosote and borate treated railroad ties as a non-waste fuel under section 241.4(a), as 

follows: 

Railroad ties treated with creosote or creosote and borate that have been 

processed to meet specifications and combusted in stoker, bubbling fluidized 
2 

bed, circulating fluidized bed, or hybrid suspension grate boilers or are 

combusted as part of a fuel mix to maintain a Btu level that is appropriate for the 

boiler. 

Listing under section 241.4(a) will allow the continued combustion of railroad ties 

because (1) a 241.4(a) listing eliminates the need to make individual non-waste 

determinations for combustors of processed railroad ties and, (2) for a subset of 

combustors, a 241.4(a) listing balances the legitimacy criterion for comparable 

contaminant levels with record evidence showing that the contaminants in railroad ties 

are not combusted for the purpose of discard. 

To determine that railroad ties are a non-waste fuel notwithstanding the fact that they 

are combusted by third parties, EPA can rely on the extensive information in the record 

regarding the companies that recover and process railroad ties for use as fuel; the 

management of railroad ties by processors and by combustors; and the fact that 

processed railroad ties are commodities that meet a product specification and are sold 

in the marketplace. This information is sufficient to demonstrate that railroad ties are 

processed into a fuel product.1

 

According to EPA, a determination that railroad ties are processed into a fuel product is 

not, by itself, sufficient to support a categorical non-waste determination for railroad ties. 

The legitimacy criteria also are relevant. There is ample evidence in the record that 

railroad ties are managed as a valuable commodity, have meaningful heating value, and 

are used as a fuel to generate energy and therefore always will meet two of the three 

legitimacy criteria. With respect to the contaminant legitimacy criterion, the record 

shows that railroad ties have contaminants at levels that are lower than or comparable 

to the traditional fuels that multi-fuel combustion units (stoker, bubbling fluidized bed, 

circulating fluidized bed, or hybrid suspension grate boilers) are capable of burning2 and 

can be designed to burn,3 i.e., coal, biomass, and oil. Specifically, the contaminant 

levels in railroad ties are comparable to coal and biomass for all contaminants except 

PAHs and the PAH levels are lower than are found in fuel oil. Thus, for some 

combustors, whose boilers are currently designed to burn fuel oil, railroad tie fuel meets 

the contaminant legitimacy criterion. However, for boilers that no longer possess the 

equipment needed to deliver oil or may eliminate that equipment in the future, the 

railroad tie fuel will not meet the contaminant legitimacy criterion.4

 

 

1 See AF&PA petition; MAER petition. These petitions address the fact pattern where the processor and 

the combustor are separate entities and the combustors are purchasing the fuel. These facts provide 

very strong support for a conclusion that combustors do not combust railroad tie fuel to dispose of it. 

However, the same conclusion holds if the processor is also the combustor. In that case, the processor 

obtains railroad ties from railroads and expends resources to create a fuel product. The only difference is 

that the processor would then keep the fuel and combust the fuel itself rather than selling it. 

2

 Each of these boiler types can accommodate fuel oil burners and delivery systems. 

3

 With the appropriate burners and fuel delivery equipment. 

4

This statement applies only to creosote treated railroad ties. EPA has already determined that borate 

treated railroad ties meet the legitimacy criteria. 76 Fed. Reg. 15456, 15484 (Mar. 21, 2011). 
3 

In such a case, EPA requires additional evidence to support a non-waste determination. 

See 40 C.F.R. 241.4(b)(5)(ii) (requiring evidence showing, “[w]here any one of the 

legitimacy criteria in § 241.3(d)(1) is not met, that the use of the non-hazardous 

secondary material is integrally tied to the industrial production process, that the nonhazardous secondary material is functionally the same as the comparable traditional 

fuel, or other relevant factors as appropriate.”). 

As described below, EPA can rely on evidence of the motivation of the combustor and 

evidence that railroad tie fuel is functionally the same as comparable traditional fuels to 

further support a proposal to list railroad ties as nonwaste fuel. 

1. Motivation of the combustor. 

While higher contaminant levels can be an indication that a NHSM is combusted to 

discard the contaminant, the record demonstrates that discard is not a motivation for 

combustion of railroad ties. The motivation of the combustor is a relevant factor that 

can be balanced with the legitimacy criteria. See American Petroleum Institute v. EPA,

216 F.3d 50, 58 (DC Cir. 2000) (recognizing the motivation is relevant to a nonwaste 

determination). 

The record amply supports a determination that the PAH levels in railroad tie fuel are 

not evidence of an intent to discard PAHs when the railroad ties are combusted in 

stoker, bubbling fluidized bed, circulating fluidized bed, or hybrid suspension grate 

boilers. These boilers are categorically capable of combusting oil, and in many cases 

were designed to and did combust oil in the past. As a result, railroad tie fuel 

combusted in many of these boilers has met or currently meets the contaminant 

legitimacy criterion. However, in response to new Clean Air Act regulations 

promulgated for boilers, many combustors have discontinued or are discontinuing the 

use of fuel oil in their boilers and, to maximize boiler efficiency, are removing fuel oil 

delivery equipment. The change in the fuel mix for these boilers is a strategy for Clean 

Air Act compliance and therefore is not evidence of intent to discard PAHs. Further, the 

removal of a fuel oil delivery system does not result in a change in the applicability of 

Clean Air Act regulations to the boilers or in the pollution control equipment employed.5

 

There also is substantial record evidence showing that railroad tie fuel is a commodity 

that is produced to specification and is bought and sold in commerce under a wide 

variety of commercial arrangements. As noted above, a common arrangement involves 

a third party that obtains railroad ties, processes them into a fuel product that meets 

customer specifications, and sells the finished fuel product to combustors.6

 These facts 

clearly demonstrate that use as a fuel, and not disposal of PAHs or any other 

contaminants, is the motivation for the combustion of railroad tie fuel by the purchaser. 

It also is possible for a person to obtain railroad ties, do their own processing to meet 

 

5 See AF&PA-AWC power point presentation from December 19, 2013 meeting. 

6

 As described in the AF&PA petition, these facts are reflective of the practices in the forest products 

industry. 
4 

their own specifications, and combust the finished fuel product themselves.7

 Under this 

scenario too, resources are expended to obtain railroad tie fuel, strongly supporting a 

conclusion that the motivation for combustion is the production of energy, not the 

discard of railroad ties. 

Finally, the record shows that creosote used to treat railroad ties is governed by 

standards established by the American Wood Protection Association (AWPA). AWPA 

has established two blends of creosote, P1/P13 or P2. These standards identify the 

source material for creosote as well as the physical-chemical characteristics of the 

pesticide product. Railroad ties are typically manufactured using the P2 blend. Thus, 

the constituents found in creosote treated railroad ties are not added for the purpose of 

discarding those constituents; there is no “sham recycling” when railroad tie fuel is 

combusted.8

 

2. Functionally the same. 

Under the NHSM regulations, where the weight of evidence shows that a fuel is 

functionally the same as a comparable traditional fuel it is not a waste when combusted, 

even if it does not meet one of the legitimacy criteria. See 40 C.F.R. 241.4(b)(5)(ii). 

The record supports a determination that the weight of evidence shows that railroad tie 

fuel is functionally the same as comparable traditional fuels. For example, there are 

industry sectors that are dependent on the combustion of biomass material to maintain 

economic viability.9 Biomass contains useful heat value but can contain a large amount 

of moisture, which, when combusted, can affect the thermal efficiency of the boiler. To 

help maintain good combustion efficiency, combustors often co-combust biomass with 

fuels that have a higher Btu value. Fossil fuels can serve this function, but railroad tie 

fuel can serve it equally well. Thus, the use of railroad tie fuel is functionally the same 

as comparable traditional fuel when it is used in a fuel mix to maintain a Btu level that is 

appropriate for the boiler. 

A finding of functional equivalency is further supported by the fact that stack emissions 

of the contaminant at issue for railroad tie fuel, namely PAHs (since PAHs are higher in 

railroad ties than in coal or biomass), are controlled in the same way as all organic 

constituents present in the other fuels used by the boilers that combust railroad tie fuel, 

i.e., through good combustion efficiency. Good combustion efficiency is demonstrated 

by compliance with CO limits for major Boiler MACT sources and work practice 

standards for area Boiler MACT sources. PAH stack emissions are not directly a 

function of the PAH levels in railroad ties.10 The attached NCASI compilation provides 

 

7

 These facts are reflective of the practices of some combustors outside the forest products industry. 

8

 MAER petition, at 2-9. 

9 See comment submitted by Paul Noe, Vice President for Public Policy, American Forest & Paper 

Association, et al., EPA document no. EPA-HQ-RCRA-2008-0329-1946. 

10 See NCASI analysis on “The Air Emissions Impact of Burning Railroad Tie-Derived Fuel,” January 15, 

2014 (attached). 
5 

examples where emissions of PAHs when burning railroad ties were closer to the lower 

end of the emissions range associated with burning biomass or coal. This observation 

is not surprising given that PAH emissions are not directly a function of PAH content in 

fuel and reduced when the robustness of combustion increases. The use of dry fuels 

with high heat value, like railroad ties, generally improves combustion, thereby reducing 

products of incomplete combustion like PAHs. Without good combustion efficiency, far 

higher PAH levels could be created during combustion. Supplementing a lower Btu fuel 

with a higher Btu value fuel, like railroad ties, increases combustion efficiency and 

reduces PAH levels (as well as emissions of CO and VOCs and other contaminants) in 

emissions. 

Conclusion

EPA can balance the contaminant legitimacy criterion with the facts that railroad tie fuel 

is processed into a fuel that meets specifications, is a valuable commodity, is 

combusted in boiler types that are categorically capable of combusting fuel oil, is 

functionally the same as comparable traditional fuel that is often co-combusted with 

lower Btu fuel, is subject to the same emissions controls as the comparable traditional 

fuels it replaces in such boilers, and contributes to good combustion efficiency thereby 

reducing pollutant emissions. Based on that balance, EPA can determine that railroad 

ties treated with creosote or creosote and borate that have been processed into 

specification fuel for the combustor are not a waste when combusted in stoker, bubbling 

fluidized bed, circulating fluidized bed, or hybrid suspension grate boilers or boilers that 

co-combust railroad ties with lower Btu fuels to maintain a Btu level that is appropriate 

for the boiler. 

EPA can request comment on any other relevant factors to be balanced and other ways 

that railroad tie fuel may be functionally the same as comparable traditional fuel.