Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71761 

NAAQS in the majority of the 

nonattainment areas nationwide for the 

2015 ozone NAAQS. This final action 

treats all of the identified States with 

reclassified Moderate nonattainment 

areas consistently, in making findings of 

failure to submit required SIPs. 

The Administrator finds that this is a 

matter on which national uniformity is 

desirable to take advantage of the D.C. 

Circuit’s administrative law expertise 

and facilitate the orderly development 

of the basic law under the CAA. The 

Administrator also finds that 

consolidated review of this action in the 

D.C. Circuit will avoid piecemeal 

litigation in the regional circuits, further 

judicial economy, and eliminate the risk 

of inconsistent results for different 

States. The Administrator also finds that 

a nationally consistent approach to the 

CAA’s mandate concerning 

reclassification of areas that fail to attain 

the 2015 ozone NAAQS constitutes the 

best use of agency resources. The 

Administrator is publishing his finding 

that this action is based on a 

determination of nationwide scope or 

effect in the Federal Register as part of 

this final action. 

For these reasons, this final action is 

nationally applicable or, alternatively, 

the Administrator is exercising the 

complete discretion afforded to him by 

the CAA and finds that this final action 

is based on a determination of 

nationwide scope or effect for purposes 

of CAA section 307(b)(1) and is 

publishing that finding in the Federal 

Register. Under section 307(b)(1) of the 

CAA, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the District 

of Columbia Circuit by December 18, 

2023. 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedures, 

Air pollution control, Approval and 

promulgation of implementation plans, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Joseph Goffman, 

Principal Deputy Assistant Administrator. 

[FR Doc. 2023–22987 Filed 10–17–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 241 

[EPA–HQ–OLEM–2020–0550; FRL–7815– 

01–OLEM] 

RIN 2050–AH13 

Non-Hazardous Secondary Material 

Standards; Response to Petition 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency is finalizing its denial of a 

rulemaking petition from American 

Forest and Paper Association et al. 

requesting amendments to the NonHazardous Secondary Materials 

regulations, initially promulgated on 

March 21, 2011, and amended on 

February 7, 2013, February 8, 2016, and 

February 7, 2018, under the Resource 

Conservation and Recovery Act. These 

regulations establish standards and 

procedures for identifying whether nonhazardous secondary materials are solid 

wastes when legitimately used as fuels 

or ingredients in combustion units. The 

petition requested the following 

amendments: Change the legitimacy 

criterion for comparison of 

contaminants in the non-hazardous 

secondary material against those in the 

traditional fuel the unit is designed to 

burn from mandatory to ‘‘should 

consider’’; remove associated designed 

to burn and other limitations for 

creosote-treated railroad ties; and revise 

the definition of ‘‘paper recycling 

residuals’’ to remove the limit on nonfiber materials in paper recycling 

residuals that can be burned as a nonwaste fuel. The Environmental 

Protection Agency proposed to deny the 

petition on January 28, 2022. After 

review of the public comments, the 

Agency is finalizing its denial of the 

requested amendments. In addition to 

denying this rulemaking petition, the 

Agency is revising the definition of 

paper recycling residuals to limit the 

impact non-fiber materials may have on 

the heat value of paper recycling 

residuals in order for them to be 

considered a non-waste fuel. 

DATES: This final rule is effective on 

December 18, 2023. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OLEM–2020–0550. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available electronically through https:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Patrick Wise, Office of Resource 

Conservation and Recovery, Materials 

Recovery and Waste Management 

Division (MC 5303P), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue NW, Washington, DC 20460; 

telephone number: 202–566–0520; 

email address: wise.patrick@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

following outline is provided to aid in 

locating information in this preamble. 

I. General Information 

A. List of Abbreviations and Acronyms 

Used in This Proposed Rule 

B. What is the statutory authority for this 

proposed rule? 

C. Does this proposed rule apply to me? 

II. Background 

A. History of Non-Hazardous Secondary 

Materials Rulemaking 

B. Summary of This Action 

C. Summary of the Petitioners’ Requested 

Changes 

D. Background on Creosote-Treated 

Railroad Ties 

III. EPA Response to Petitioners’ Requested 

Changes 

IV. Effect of This Rule on Other Programs 

V. State Authority 

A. Relationship to State Programs 

B. State Adoption of the Rulemaking 

VI. Costs and Benefits 

VII. Children’s Health 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 


ddrumheller on DSK120RN23PROD with RULES1
71762 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 

1Petition for Rulemaking to Amend the 

Legitimacy Criteria in 40 CFR part 241,—The 

Categorical Non-Waste Fuels Classification Criteria 

for Creosote Treated Railroad Ties and Other 

Treated Railroads Ties, and the Definition of Paper 

Recycling Residuals, December 7, 2018, available in 

docket (EPA–HQ–OLEM–2020–0550). 

I. General Information 

A. List of Abbreviations and Acronyms 

Used in This Rule 

AAR Association of American Railroads 

AF&PA American Forest and Paper 

Association 

ASLRRA American Short Line and Regional 

Railroad Association 

AWC American Wood Council 

Btu British thermal unit 

CAA Clean Air Act 

CFR Code of Federal Regulations 

CISWI Commercial and Industrial Solid 

Waste Incinerator 

CTRT Creosote-treated railroad ties 

EPA U.S. Environmental Protection Agency 

FR Federal Register 

HAP Hazardous air pollutants 

ISRI Institute of Scrap Recycling Industries 

MACT Maximum achievable control 

technology 

NAICS North American Industrial 

Classification System 

NHSM Non-hazardous secondary material 

OMB Office of Management and Budget 

PRR Paper recycling residuals 

RCRA Resource Conservation and Recovery 

Act 

RIN Regulatory information number 

SO2 Sulfur dioxide 

SVOC Semi-volatile organic compound 

TWC Treated Wood Council 

U.S.C. United States Code 

B. What is the statutory authority for 

this final rule? 

The Environmental Protection Agency 

(EPA or ‘‘the Agency’’) is finalizing its 

denial of the requested revisions in the 

American Forest and Paper Association 

(AF&PA) petition 1 and is making 

regulatory revisions to the definition of 

paper recycling residuals under the 

authority of sections 2002(a)(1) and 

1004(27) of the Resource Conservation 

and Recovery Act (RCRA), as amended, 

42 U.S.C. 6912(a)(1) and 6903(27). 

Section 129(a)(1)(D) of the Clean Air Act 

(CAA) directs the EPA to establish 

standards for Commercial and Industrial 

Solid Waste Incinerators (CISWI), which 

burn solid waste. Section 129(g)(6) of 

the CAA provides that the term ‘‘solid 

waste’’ is to be established by the EPA 

under RCRA (42 U.S.C. 7429(g)(6)). 

Section 2002(a)(1) of RCRA authorizes 

the Agency to promulgate regulations as 

are necessary to carry out its functions 

under the Act. The statutory definition 

of ‘‘solid waste’’ is stated in RCRA 

section 1004(27). 

C. Does this final rule apply to me? 

Categories and entities potentially 

affected by this action, either directly or 

indirectly, include, but may not be 

limited to the following: 

GENERATORS AND POTENTIAL USERS a OF CATEGORICAL NON-WASTE FUELS

Primary industry category or subcategory NAICSb

Utilities ................................................................................................................................................................................................. 221 

Manufacturing ...................................................................................................................................................................................... 31, 32, 33 

Wood Product Manufacturing .............................................................................................................................................................. 321 

Sawmills ............................................................................................................................................................................................... 321113 

Wood Preservation (includes railroad tie creosote treating) ............................................................................................................... 321114 

Paper Manufacturing ........................................................................................................................................................................... 322 

Cement Manufacturing ........................................................................................................................................................................ 32731 

Rail Transportation (includes line haul and short line) ........................................................................................................................ 482 

Scenic and Sightseeing Transportation, Land (Includes: railroad, scenic and sightseeing) .............................................................. 487110 

Port and Harbor Operations (Used railroad ties) ................................................................................................................................ 488310 

Landscaping Services .......................................................................................................................................................................... 561730 

Solid Waste Collection ......................................................................................................................................................................... 562111 

Solid Waste Landfill ............................................................................................................................................................................. 562212 

Solid Waste Combustors and Incinerators .......................................................................................................................................... 562213 

Marinas ................................................................................................................................................................................................ 713930 

a Includes: Major Source Boilers, Area Source Boilers, and Solid Waste Incinerators. 

b NAICS—North American Industrial Classification System. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities potentially 

impacted by this action. This table lists 

examples of the types of entities which 

the EPA is aware of that could 

potentially be affected by this action. 

Other types of entities not listed could 

also be affected. To determine whether 

your facility, company, business, 

organization, etc., is affected by this 

action, you should examine the 

applicability criteria in this rule. If you 

have any questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

II. Background 

A. History of the Non-Hazardous 

Secondary Materials Rulemaking 

The non-hazardous secondary 

materials (NHSM) regulations establish 

standards and procedures for 

identifying when non-hazardous 

secondary materials burned in 

combustion units are solid wastes. The 

RCRA statute 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 

. . . resulting from industrial, 

commercial, mining, and agricultural 

operations, and from community 

activities.’’ (RCRA section 1004(27) 

(emphasis added)). The key concept is 

that of ‘‘discard’’ and, in fact, this 

definition hinges on the meaning of the 

phrase ‘‘other discarded material,’’ since 

this term encompasses all other 

examples provided in the definition. 

The meaning of ‘‘solid waste,’’ as 

defined under RCRA, is of particular 

importance as it relates to section 129 of 

the CAA. If a material or any portion 

thereof is a solid waste under RCRA, a 

combustion unit burning it is required 

to meet the CAA section 129 emission 

standards for solid waste incineration 

units (NRDC v. EPA, 489 F.3d 1250, 

1258). If the material is not a solid 

waste, combustion units are required to 

meet the CAA section 112 emission 

standards. CAA section 129 further 

states that the term ‘‘solid waste’’ shall 

have the meaning ‘‘established by the 

Administrator pursuant to the Solid 

Waste Disposal Act’’ (42 U.S.C. 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71763 

2Commercial and Industrial Solid Waste 

Incineration Units: Reconsideration and Final 

Amendments; Non-Hazardous Secondary Materials 

That Are Solid Waste; Final Rule. 78 FR 9112, 

February 7, 2013. 

3 78 FR 9173, February 7, 2013. 

4 81 FR 6723, February 8, 2016. 

5 83 FR 5318–19, February 7, 2018. 

7429(g)(6)). The Solid Waste Disposal 

Act, as amended, is commonly referred 

to as RCRA. 

The Agency first solicited comments 

on how the RCRA definition of solid 

waste should apply to NHSMs when 

used as fuels or ingredients in 

combustion units in an advance notice 

of proposed rulemaking (ANPRM), 

which was published in the Federal 

Register on January 2, 2009 (74 FR 41). 

The EPA then published an NHSM 

proposed rule on June 4, 2010 (75 FR 

31844), which the EPA finalized on 

March 21, 2011 (76 FR 15456). 

In the March 21, 2011 rule, the EPA 

finalized standards and procedures to be 

used to identify whether NHSMs are 

solid wastes when used as fuels or 

ingredients in combustion units. 

‘‘Secondary material’’ was defined for 

the purposes of that rulemaking as any 

material that is not the primary product 

of a manufacturing or commercial 

process, and can include post-consumer 

material, off-specification commercial 

chemical products or manufacturing 

chemical intermediates, post-industrial 

material, and scrap (codified at 40 CFR 

241.2). ‘‘Non-hazardous secondary 

material’’ is a secondary material that, 

when discarded, would not be 

identified as a hazardous waste under 

40 CFR part 261 (codified at 40 CFR 

241.2). Traditional fuels, including 

historically managed traditional fuels 

(e.g., coal, oil, natural gas) and 

‘‘alternative’’ traditional fuels (e.g., 

clean cellulosic biomass), are not 

secondary materials and thus are not 

solid wastes under the rule unless 

discarded (codified at 40 CFR 241.2). 

A key concept included in the March 

21, 2011 rule is that NHSMs used as 

non-waste fuels in combustion units 

regulated under CAA section 112 must 

meet the legitimacy criteria specified in 

40 CFR 241.3(d)(1); otherwise, NHSMs 

must be combusted in incinerator units 

regulated under CAA section 129. 

Application of the legitimacy criteria 

helps ensure that the fuel product is 

being legitimately and beneficially used 

and not simply being discarded through 

combustion. To meet the legitimacy 

criteria, the NHSM must be managed as 

a valuable commodity, have a 

meaningful heating value and be used as 

a fuel in a combustion unit that recovers 

energy, and contain contaminants or 

groups of contaminants at concentration 

levels comparable to (or lower than) 

those in traditional fuels which the 

combustion unit is designed to burn. 

The NHSM legitimacy criteria have been 

in place since 2011 and were upheld by 

the D.C. Circuit Court in Solvay v. EPA. 

608 Fed. Appx. 10 (D.C. Cir. 2015) (45 

ELR 20107 Nos. 11–1189, (D.C. Cir., 06/ 

03/2015)). 

Based on these criteria, the March 21, 

2011 rule identified the following 

NHSMs as not being solid wastes: 

• The NHSM that meets the 

legitimacy criteria and is used as a fuel 

and that remains within the control of 

the generator (whether at the site of 

generation or another site the generator 

has control over) (40 CFR 241.3(b)(1)); 

• The NHSM that meets the 

legitimacy criteria and is used as an 

ingredient in a combustion unit 

(whether by the generator or outside the 

control of the generator) (40 CFR 

241.3(b)(3)); 

• Discarded NHSM that has been 

sufficiently processed to produce a fuel 

or ingredient that meets the legitimacy 

criteria (40 CFR 241.3(b)(4)); or 

• On a case-by-case petition basis, 

NHSM that has been determined to have 

been handled outside the control of the 

generator, has not been discarded and is 

indistinguishable in all relevant aspects 

from a fuel product, and meets the 

legitimacy criteria (40 CFR 241.3(c)). 

In 2013, the EPA amended the NHSM 

rules to ‘‘clarify several provisions in 

order to implement the non-hazardous 

secondary materials rule as the Agency 

originally intended.’’ 2 While the 2013 

final rule did not contain any provisions 

specific to creosote-treated railroad ties 

(CTRT), the EPA noted that AF&PA and 

the American Wood Council submitted 

a letter with supporting information on 

December 6, 2012, seeking a categorical 

non-waste determination for CTRT 

combusted in any unit.3 The EPA 

discussed at the time that the Agency 

was reviewing the petition and also 

asked petitioners to provide additional 

information regarding CTRT, including 

industry sectors that burn CTRT; types 

of combustion units; types of traditional 

fuels that could otherwise be burned in 

these combustion units; extent of use of 

CTRT in non-industrial boilers; and 

laboratory analyses of CTRT for the 

contaminants, as defined under 40 CFR 

241.2, known to be significant 

components of creosote, such as 

polycyclic aromatic hydrocarbons. The 

EPA also provided notice that, assuming 

the additional information supported 

the petitioners’ representations, the 

Agency intended to propose a 

categorical non-waste fuel 

determination for CTRT. 

On February 8, 2016 (81 FR 6687), the 

EPA published final NHSM rule 

amendments that provided a categorical 

non-waste fuel determination for CTRT 

that undergo, at a minimum, metal 

removal and shredding or grinding and 

are used as fuel in units designed to 

burn both biomass and fuel oil as part 

of normal operations and not solely as 

part of start-up or shut-down 

operations.4 In addition, the final rule 

included a special provision for units at 

major source pulp and paper mills or 

power producers subject to 40 CFR part 

63, subpart DDDDD that were designed 

to burn biomass and fuel oil as part of 

normal operations, but are modified 

(e.g., oil delivery mechanisms are 

removed) in order to use natural gas 

instead of fuel oil. These units may 

continue to combust the CTRT as 

product fuel if the following conditions 

are met: (A) CTRT must be burned in an 

existing (i.e., commenced construction 

prior to April 14, 2014) stoker, bubbling 

bed, fluidized bed, or hybrid suspension 

grate boilers; and (B) CTRT can 

comprise no more than 40 percent of the 

fuel that is used on an annual heat input 

basis. 

A similar categorical non-waste fuel 

determination approach was applied to 

creosote-borate and mixtures of creosote 

and certain non-creosote treated railroad 

ties (i.e., other treated railroad ties, or 

OTRT) in the February 7, 2018 NHSM 

rule amendments.5

B. Summary of This Action 

This action consists of two parts. 

First, the Agency is finalizing its 

response to a rulemaking petition (‘‘the 

petition’’) requesting amendments to the 

NHSM regulations, initially 

promulgated on March 21, 2011, and 

amended on February 7, 2013, February 

8, 2016, and February 7, 2018 under 

RCRA. Second, the Agency is finalizing 

a revised definition of PRR. These two 

parts of this action are separate and 

distinct, and each part operates 

independently from the other. 

In addition, within the first part (in 

which the Agency is finalizing its 

response to the petition), the Agency 

intends that each of the individual 

components of the petition and EPA’s 

responses to those components, are also 

severable. 

C. Summary of the Petitioners’ 

Requested Changes 

The petition was received on 

December 7, 2018; petitioners included 

AF&PA, the Association of American 

Railroads (AAR), Treated Wood Council 

(TWC), American Short Line and 

Regional Railroad Association 


ddrumheller on DSK120RN23PROD with RULES1
71764 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 

6 2018 Railroad Tie Survey, Association of 

American Railroads, available in the docket EPA– 

HQ–OLEM–2020–0550. 7AFPA Rail Tie Petition Request December 6, 

2012, EPA–HQ–RCRA–2013–0110–0002. 

8While creosote is a coal derivative, because the 

creosote has already been used once as a 

preservative on railway ties, burning those ties still 

may reduce the need for burning of fossil fuels. 

9 In addition, Freeman et al., 2000 indicates that 

co-firing CTRT with coal at 10% the annual heating 

value may reduce emissions of certain pollutants. 

However, that study is very limited and cannot be 

extrapolated to the use of CTRT as a fuel in general. 

Little is known about impacts of variability in CTRT 

or coal composition and how these would impact 

emissions for any given combustor design or control 

device configuration. For more information, see 

Creosote Treated Railroad Ties and Coal Co-firing 

Technical Support Document, available in the 

docket, EPA–HQ–OLEM–2020–0550–0004. 

(ASLRRA), and American Wood 

Council (AWC). The petition requested 

the following amendments to the NHSM 

regulations: (1) Change from mandatory 

to ‘‘should consider’’ the legitimacy 

criterion for comparison of 

contaminants in the NHSM to the 

traditional fuel the unit is designed to 

burn found at 40 CFR 241.3(d)(1)(iii); (2) 

remove associated designed to burn and 

other limitations for creosote-treated 

railroad ties found at 40 CFR 

241.4(a)(7)–(10); and (3) revise the 

definition of paper recycling residuals 

that can be burned as non-waste fuel 

found at 40 CFR 241.2 to remove the 

limit on non-fiber materials. In issuing 

this petition denial, the EPA has 

considered and addressed each of the 

issues raised in the petition throughout 

this notice. Arguments raised in pages 

13–16 of the petition regarding the 

contaminant comparison criteria are 

addressed in Section III.A. of the 

preamble; arguments raised on pages 

16–17 of the petition regarding CTRT 

storage times are addressed in Section 

III.C. of the preamble; arguments raised 

in pages 18–20 of the petition regarding 

environmental benefits of removing 

restrictions on the combustion of CTRT 

are addressed in Sections III.A and III.B 

of the preamble; arguments raised in 

pages 20–22 of the petition regarding 

the definition of paper recycling 

residuals are addressed in Section III.D 

of the preamble. 

D. Background on Creosote-Treated 

Railroad Ties 

CTRT are still produced in large 

numbers today, and roughly 10–20 

million railroad ties are removed from 

service each year in the U.S.6 After 

railroad ties are removed from service, 

they may be stored for varying periods 

of time before being transferred for 

sorting/processing. Based on 

information provided by industry,7 the 

processing of the railroad ties into fuel 

by the reclamation/processing 

companies involves several steps (metal 

removal, shredding, screening, etc.), 

which have already been described in 

the proposed petition response. Once 

the processing of CTRT is complete, the 

CTRT are sold directly to the end-use 

combustor for energy recovery, where 

they are typically combusted within a 

few days or weeks of receipt. 

Use of CTRT as an alternative fuel has 

both positive and negative 

environmental implications. 

Combusting CTRT for energy recovery 

may reduce fossil fuel use,8 increase the 

heat value of the fuel mix, improve the 

combustion temperature and 

conditions,9 and divert waste ties from 

landfill. However, CTRT has elevated 

levels of various contaminants when 

compared to coal (76 FR 15483, March 

21, 2011), fuel oil, and biomass (81 FR 

6687, February 8, 2016). Thus, the 2016 

NHSM non-waste determination is 

limited to CTRT that are used as fuel in 

specific types of units where CTRT have 

contaminants at levels comparable to or 

lower than the traditional fuel that 

combustion units are designed to burn. 

In addition, in the January 28, 2022 

proposed petition response, the EPA 

discussed potential problems associated 

with processing CTRT for use as fuel 

and requested public comment on the 

frequency and severity of such issues. 

Grinding CTRT can create dust that may 

blow onto neighboring properties. 

Processing CTRT into fuel can also be 

associated with other, more-generalized 

issues like excess noise from grinding, 

loud night-time operations, and the 

smell of creosote. 

However, Tribal, State, and local 

governments have authority under their 

solid waste and water programs, as well 

as local ordinances, to address any 

citizen complaints associated with the 

management and processing of CTRT 

prior to their use as a non-waste fuel, 

including problems associated with 

dust, excess noise, and runoff. In most 

cases, CTRT remain solid waste until 

processed to produce a non-waste fuel 

per 40 CFR 241.3(b)(4) and thus remain 

under such solid waste regulatory 

authority. In addition, a Federal nonwaste determination under 40 CFR part 

241 does not affect a State’s authority to 

regulate a non-hazardous secondary 

material as a solid waste under the 

State’s RCRA Subtitle D solid waste 

management program. 

It should also be noted that 

environmental concerns associated with 

processing and management may impact 

a material’s classification as a non-waste 

fuel. In order to fulfill the ‘‘valuable 

commodity’’ legitimacy criterion 

required of NHSM burned as fuel (40 

CFR 241.3(d)(1)(i)), the material must be 

‘‘managed in a manner consistent with 

the analogous fuel or otherwise be 

adequately contained to prevent releases 

to the environment.’’ Likewise, when no 

analogous fuel exists, the material must 

be ‘‘adequately contained so as to 

prevent releases to the environment.’’ 

The EPA requested public comment 

on the potential health and 

environmental risks associated with 

managing and processing CTRT prior to 

combustion and potential approaches to 

addressing these issues, but the Agency 

received no public input on these 

matters. Absent sufficient information 

surrounding these issues and 

considering the existing authority of 

State and local governments to address 

many of these issues, the EPA is 

declining to take further action on this 

issue at this time. 

III. EPA Response to Petitioners’ 

Requested Changes 

This action is based on the petition 

and its supporting materials, the 

Agency’s review and evaluation of this 

information, information submitted by 

other stakeholders, and relevant 

information compiled by the Agency. 

All materials and information that form 

the basis for this decision are available 

in the public docket supporting this 

action. The petition’s arguments and 

supporting information, in addition to 

other public comments received, are 

summarized and discussed below, 

followed by the Agency’s response. 

A. Request To Change the Contaminant 

Comparison Criterion From Mandatory 

to ‘‘Should Consider’’ 

1. Petitioners’ Request 

40 CFR 241.3(d)(1)(iii) currently states 

that, ‘‘The non-hazardous secondary 

material must contain contaminants or 

groups of contaminants at levels 

comparable in concentration to or less 

than those in traditional fuel(s) that the 

combustion unit is designed to burn’’ 

(emphasis added). Petitioners requested 

the following revision in the regulatory 

language: ‘‘Persons should consider 

whether the non-hazardous secondary 

material contains contaminants or 

groups of contaminants at levels 

comparable in concentration to or lower 

than those in traditional fuel(s) that the 

combustion unit is capable of burning 

. . . The factor in this paragraph does 

not have to be met for the nonhazardous secondary material to be 

considered a non-waste fuel’’ (emphasis 

added). 

Petitioners’ rationale for this 

suggested change focused on a July 7, 

2017 decision by the U.S. Court of 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71765 

10The EPA notes that the statutory objectives 

associated with designating a solid waste as 

discarded warrant different implementation 

strategies depending on the context. See Utility Air 

Regulatory Group v. EPA, 573 U.S. 302, 320 (2014) 

(finding that statutory terms, even those that are 

defined in the statute, ‘‘may take on distinct 

characters from association with distinct statutory 

objects calling for different implementation 

strategies’’). 

11See 40 CFR 261.2(c)(2), RCRA section 3004(q); 

Natural Resources Defense Council v. EPA, 755 

F.3d 1010 (June 27, 2014)) and Sierra Club v. EPA, 

755 F.3d 968. 

Appeals for the D.C. Circuit that rejected 

mandatory compliance with the 

contaminant comparison criterion 

portion of the legitimacy test in the 

context of the RCRA rules defining 

‘‘solid wastes’’ under RCRA’s Subtitle C 

hazardous waste program (‘‘DSW rule’’). 

American Petroleum Institute v. 

Environmental Protection Agency, 862 

F.3d 50 (D.C. Cir. 2017) (‘‘API’’). 

Petitioners argued that, in light of the 

Court’s DSW rule decision, the 

continued mandatory use of the 

contaminant comparison criterion in the 

NHSM rule, including limiting railroad 

tie non-waste fuel classifications to 

certain types of combustion units, can 

no longer be justified. 

Petitioners referenced preamble 

language the EPA used in the 2015 DSW 

final rule regarding the contaminant 

comparison criterion and said that 

‘‘[t]his language is consistent with the 

Identification of Non-Hazardous 

Secondary Materials that are Solid 

Wastes final rule (76 FR 15456, March 

21, 2011)’’ (80 FR 1727, January 13, 

2015). From this preamble language 

petitioners concluded that the EPA has 

acknowledged the equivalence of the 

contaminant comparison factors in the 

two rules (i.e., Factor 4 in the DSW rule 

and third legitimacy criterion in the 

NHSM rule). 

In 2017, the API Court invalidated the 

fourth factor in the DSW rule, finding 

that ‘‘[n]ever in the rulemaking does 

EPA make out why a product that fails 

those criteria is likely to be discarded in 

any legitimate sense of the term.’’ 862 

F.3d at 62. Petitioners say that the Court 

also challenged the EPA’s ‘‘bare 

assertion that high levels of hazardous 

constituents . . . could indicate 

discard,’’ and noted that the 

contaminant comparison at issue was 

‘‘not a reasonable tool for distinguishing 

products from wastes.’’ Id at 60, 63 

(internal quotes omitted). 

Petitioners argued that the API 

holding, with its critique of the EPA’s 

application of this element of the 

definition of legitimate recycling in the 

DSW rule, applies with equal force to 

the NHSM legitimacy criteria set forth at 

40 CFR 241.3(d). See id at 63. Therefore, 

petitioners alleged that, based on the 

reasoning and holding in API, the 

contaminant comparison criterion 

currently contained in the NHSM rule’s 

legitimacy criteria and the 

corresponding NHSM rules for railroad 

ties treated with creosote and other 

wood preservatives can no longer be 

used as mandatory elements to 

determine whether a secondary material 

is discarded or not. 

Furthermore, petitioners asserted that 

the EPA has recognized that the 

contaminant comparison should not be 

a determining factor for whether a 

material is being discarded. In its 2016 

Rule on Additions to List of Categorical 

Non-Waste Fuels, the EPA expressly 

noted that ‘‘CTRTs do not become 

wastes solely because of the switch to 

natural gas’’ (81 FR 6687, 6731, 

February 8, 2016). In that rule, the EPA 

reasoned that facilities that have 

demonstrated the ability to burn fuel oil 

and biomass should not be penalized for 

switching to natural gas, a fuel that 

creates less air pollution. In addition, 

petitioners stated that the EPA properly 

determined that resinated wood should 

qualify as a categorical non-waste fuel 

under the NHSM rule, despite expressly 

recognizing that this material ‘‘may not 

meet the regulatory contaminant 

legitimacy criteria in every situation’’ 

(78 FR 9112, 9156, February 7, 2013). 

Petitioners claimed that this prior EPA 

precedent is fully consistent with the 

Court’s decision in API and underscores 

the need to eliminate the contaminant 

comparison as a mandatory factor in the 

NHSM rule’s legitimacy criteria 

generally, and as a condition as applied 

to individual NHSMs. 

2. Public Comment 

Commenters continued to argue that 

the 2017 API decision is applicable to 

the NHSM contaminant comparison 

criterion, iterating similar positions 

taken in the original petition. In 

particular, commenters contended that 

the sole statutory definition of ‘‘solid 

waste’’ in RCRA means that the 

contaminant comparison test must be 

applied identically for hazardous and 

non-hazardous materials. Because the 

test was invalidated for hazardous 

secondary material in the 2017 API 

decision, they argued the contaminant 

comparison criterion should also be 

eliminated as a mandatory criterion for 

non-hazardous secondary material being 

burned as a non-waste fuel. Commenters 

likewise stated that a non-mandatory 

standard should be permissible for 

materials that are not hazardous when 

discarded if a non-mandatory test is 

allowable for materials that are 

hazardous when discarded. Commenters 

also stated that combustion units would 

still be regulated by CAA section 112 

standards if the contaminant 

comparison test was not mandatory. 

3. EPA Response 

The argument that the 2017 API 

decision invalidates the contaminant 

comparison criterion for the NHSM 

program fails because the contaminant 

standards in each rule were established 

for different purposes and in different 

contexts. 

The DSW rule establishes standards 

for legitimate recycling of hazardous 

secondary materials into products (not 

fuels). The exclusions in the DSW rule 

address reclamation, and specifically 

omit burning for energy recovery. 

Unlike NHSMs, hazardous secondary 

materials that are burned for energy 

recovery are always solid waste,10

unless the material is a commercial 

chemical product that is itself a fuel.11

Combustion is an inherently destructive 

process, even when energy is recovered, 

and unlike other types of recycling, 

there is no final product to consider in 

determining the impact of elevated 

hazardous constituents. The 

contaminant comparison in 40 CFR 

260.43(b) compares hazardous 

constituents in the product of the 

recycling process to the corresponding 

constituents in the analogous product 

made from virgin material. While 40 

CFR 260.43(b) specifies that this factor 

‘‘does not have to be met for the 

recycling to be considered legitimate,’’ 

the regulation also explains that ‘‘[i]n 

evaluating the extent to which this 

factor is met and in determining 

whether a process that does not meet 

this factor is still legitimate, persons can 

consider exposure from toxics in the 

product, the bioavailability of the toxics 

in the product and other relevant 

considerations.’’ In other words, the 

definition of legitimate recycling in 40 

CFR 260.43, as it relates to hazardous 

constituents, focuses on the effect those 

hazardous constituents have on the risks 

posed by the product of recycling. 

In contrast, the NHSM rule was 

established solely to determine whether 

an NHSM that is combusted as a fuel or 

an ingredient is a waste or a non-waste 

for purposes of applying appropriate 

emission standards under CAA section 

129 or CAA section 112. Without the 

contaminant criterion, an NHSM could 

contain contaminant levels that are 

significantly higher than the traditional 

fuel(s) they are meant to replace and 

still be considered a non-waste fuel. So, 

for example, if CTRT-derived pellets 

could be marketed to any wood-burning 

boiler, such as those sometimes used in 


ddrumheller on DSK120RN23PROD with RULES1
71766 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 

12See, for example, Biomass Boilers in Public 

Schools and Buildings, https://vecan.net/iniatives/ 

biomass-boilers-public-schools-buildings/, and 

Wood Pellet Heating for Schools https://

www.maineenergysystems.com/wood-pelletheating-for-schools/, both retrieved 06/20/2023. 

schools,12 then those boilers would be 

burning a material with higher levels of 

contaminants than the clean wood they 

were designed to burn, potentially 

exposing the children in those schools 

with wood-burning boilers to 

unexpected air pollutants. Burning is an 

inherently destructive process, even if 

there is energy recovery. Thus, through 

the NHSM rules, the Agency evaluates 

whether burning an NHSM for energy 

recovery also has the effect of destroying 

contaminants that would not otherwise 

be present in the corresponding 

traditional fuel, indicating discard is 

occurring. The presence of higher levels 

of contaminants underscores the 

appropriateness of applying CAA 

section 129 standards to the combustion 

of the material in question, as these 

standards are more appropriate for 

wastes, which are likely to contain more 

contaminants than traditional fuels. 

NHSM standards for categorical nonwastes also differ significantly from the 

DSW rule because the NHSM standards 

allow consideration of ‘‘other relevant 

factors’’ in determining whether the 

contaminant comparison criterion is 

met (see 40 CFR 241.4(b)(5)(ii)). Thus, 

the NHSM standards already provide 

flexibility to meet the contaminant 

comparison criterion, where 

appropriate. The API Court’s rejection of 

the mandatory contaminant comparison 

for hazardous wastes in the DSW rule 

turned, in large part, on what the Court 

viewed as a rigid and severe standard. 

The Court felt that the requirement ‘‘sets 

the bar at the contaminant level of the 

analogue without regard to whether any 

incremental contaminants are 

significant in terms of health and 

environmental risks.’’ 862 F.3d 50, 60 

(D.C. Cir. 2017). However, the Court 

went on to commend an exception to 

that test in which a recycler could 

satisfy this legitimacy criterion with 

evidence of ‘‘lack of exposure from 

toxics in the product, lack of the 

bioavailability of toxins in the product, 

or other relevant considerations which 

show that the recycled product does not 

contain levels of hazardous constituents 

that pose a significant human health or 

environmental risk.’’ Id. (quoting 40 

CFR 260.43(a)(4)(iii) (2016)). Ultimately, 

the Court found the exception to be 

insufficient ‘‘due to the draconian 

character of the procedures.’’ Id. at 61. 

That is, if a recycler failed to satisfy any 

step in the exception process, an 

otherwise legitimate product would be 

considered to be hazardous waste. The 

NHSM regulations avoid these problems 

by allowing the Agency to consider 

‘‘other relevant factors,’’ which offers 

flexibility without the ‘‘draconian’’ 

procedures of the 2015 DSW rule. 

Petitioners recognize this fact by noting 

that the EPA has already applied such 

flexibility when the Agency originally 

promulgated 40 CFR 241.4(a)(7)(ii), 

which recognized the fact that CTRT 

burned as fuel in certain units at major 

source pulp and paper mills or power 

producers which were constructed prior 

to April 14, 2014 and burn CTRT as less 

than 40% of its fuel source would be 

considered non-waste fuel, even if those 

units have been modified to burn 

natural gas. Likewise, the Agency 

previously exercised this flexibility in 

establishing the categorical non-waste 

listing for resinated wood; however, that 

context differed in that the EPA 

determined that the management of 

resinated wood prior to combustion as 

a fuel is equivalent to the management 

of resinated wood being used as a raw 

material. As such, the Agency 

concluded that, though resinated wood 

may not fulfill the legitimacy criteria in 

all cases, ‘‘resinated wood that is used 

as fuel represents an integral component 

of the wood manufacturing process and, 

as such, is not being discarded when 

burned as fuel.’’ The use of resinated 

wood as a fuel is integrated into the 

wood production process in such a way 

that the relevant manufacturing 

facilities would have to be significantly 

re-engineered if they could not use 

resinated wood for its fuel value (78 FR 

9155, February 7, 2013). In contrast, 

units that burn CTRT are far removed 

from the CTRT production process, and 

are also able to burn other types of fuels, 

so the Agency maintains that the more 

stringent provisions in the categorical 

non-waste listing for CTRT (as 

compared to that for resinated wood) are 

appropriate. The EPA also notes that the 

Agency has not reopened or requested 

comment on this provision, but cites it 

as a demonstration that the Agency can 

and has used flexibility to address casespecific circumstances where 

appropriate. 

Commenters imply that the existence 

of such flexibility requires the EPA to 

disregard relative contaminant levels 

when comparing NHSMs to traditional 

fuels because of other implications 

related to a material’s waste status. 

However, any ‘‘other relevant factors’’ 

considered in making a waste 

determination must be relevant to the 

core question of whether the material is 

a solid waste when combusted. Some 

commenters seem to propose looking to 

greenhouse gas emissions and landfill 

capacity as ‘‘other relevant factors,’’ but 

neither of these topics dictate whether 

the particular material in question is 

combusted as a waste. The extent to 

which a particular disposal practice of 

NHSM does or does not release 

greenhouse gases or consume landfill 

capacity once discarded does not impact 

whether the NHSM is discarded when 

combusted. 

Finally, in response to comments 

arguing that CAA section 112 standards 

would still apply to units combusting 

NHSM with significantly elevated levels 

of contaminants when compared to 

traditional fuels, the EPA does not agree 

that these elevated levels of 

contaminants would be addressed by 

the CAA section 112 standards, which 

were intended for units that burn nonwaste fuel. Emission standards for 

dioxins, SO2, NOX, etc. for non-major 

sources are addressed under the CAA 

section 129 standards but are not 

addressed by area source boiler 

standards under CAA section 112, 

which require only tune-ups. Therefore, 

for all of the reasons stated above, the 

API decision does not directly apply 

because the context of burning NHSM 

differs fundamentally from hazardous 

waste recycling (which, to reiterate, 

does not include burning for energy 

recovery). 

To end, we also note that the NHSM 

legitimacy criteria have been in place 

since 2011 and were upheld by the D.C. 

Circuit Court in Solvay v. EPA. 608 Fed. 

Appx. 10 (D.C. Cir. 2015) (45 ELR 20107 

Nos. 11–1189, (D.C. Cir., 06/03/2015)). 

A substantive change to the 

contaminant comparison criterion 

would allow NHSM generators to 

‘‘consider’’ significantly higher levels of 

contaminants in their NHSM-derived 

fuel, without any threshold or 

indication of when such a consideration 

might result in an NHSM being a solid 

waste. Such a substantive change would 

also create regulatory uncertainty for the 

combustion units that burn this material 

and rely on an accurate non-waste 

determination for their CAA regulatory 

applicability determinations. The 

Agency is, therefore, denying the 

petitioners’ request regarding the 

contaminant comparison criterion. 

B. Request To Remove Associated 

Designed To Burn and Other Limitations 

for Creosote-Treated Railroad Ties 

1. Petitioners’ Request 

As discussed above, 40 CFR 

241.3(d)(1)(iii) states that ‘‘[t]he nonhazardous secondary material must 

contain contaminants or groups of 

contaminants at levels comparable in 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71767 

13This issue would be a concern even under the 

petitioners’ requested change to make the 

contaminant comparison criterion ‘‘to be 

considered’’ rather than mandatory. 

concentration to or less than those in 

the traditional fuel(s) that the 

combustion unit is designed to burn 

. . .’’ (emphasis added). As currently 

applied, the petitioners believe the 

designed to burn criterion means that 

the exact same railroad tie is considered 

a solid waste when burned in one unit, 

but a non-waste fuel when burned in 

another—depending solely on the type 

of fuel the boilers are designed to 

combust. The petition stated that the 

EPA has acknowledged the character of 

the NHSM does not change depending 

on the design of the boiler it goes to, and 

has offered no rationale for how the 

existence of a fuel oil nozzle in a boiler 

(i.e., a boiler originally designed to burn 

fuel oil, but later retrofitted to burn 

natural gas) informs the question of 

whether CTRT are being legitimately 

used as fuel, or in fact are simply being 

discarded in a hypothetical ‘‘sham 

recycling’’ operation. Accordingly, the 

petition requested that the EPA remove 

the limitations in the CTRT categorical 

non-waste listing that are related to 

boiler design (i.e., 40 CFR 241.4(a)(7)(i) 

and (ii)). 

In addition, petitioners argued, the 

EPA has imposed other restrictions 

unrelated to the characteristics of the 

NHSM itself—including a requirement 

that the facility in question must have 

been built before April 2014 and that 

the amount of NHSM combusted in that 

facility may not exceed 40% of the total 

fuel mix in a given year. Petitioners 

claimed that, in adding these various 

requirements regarding the 

characteristics of the combustion unit, 

the characteristics of the material and 

the motivation of the recycler are 

essentially rendered irrelevant to the 

determination of whether the material is 

a solid waste. Petitioners contend that 

this is contrary to RCRA case law and 

an arbitrary and unreasonable basis on 

which to decide whether the material is, 

in fact, being discarded or legitimately 

used as fuel. 

Petitioners indicated that, as the 

agency charged with environmental 

protection, the EPA should encourage 

the widespread use of CTRT and other 

similarly situated NHSM as fuel, rather 

than restrict that use and condemn 

valuable fuel sources to landfills. 

Furthermore, petitioners stated that the 

regulatory revisions requested in the 

petition promote environmental 

sustainability, consistent with the EPA’s 

Waste Management Hierarchy, eliminate 

undue and burdensome regulation, and 

reduce costs associated with such 

regulatory burdens. 

2. Public Comment 

Petitioners, through their comments, 

continued to argue for the removal of 

the associated designed to burn and 

other limitations for CTRT combusted as 

fuels. 

These commenters stated that the 

EPA’s regulation of CTRT is neither 

reasonable nor appropriate according to 

the Administrative Procedures Act. 

Commenters expanded upon this point 

by explaining that two identical CTRT 

removed from service would be 

regulated differently if one were burned 

in a boiler designed to burn biomass and 

fuel oil and the other in a unit designed 

to burn biomass and natural gas. 

Commenters further noted that if a 

boiler designed to burn biomass and 

fuel oil was built before 2014 and 

converted from fuel oil to natural gas, 

that boiler would be able to burn CTRT 

as a non-waste fuel, while a new boiler 

designed to burn biomass and natural 

gas would not. Commenters also noted 

that the EPA has declared resinated 

wood and coal refuse to be non-waste 

fuels, even though resinated wood 

contains elevated formaldehyde levels 

compared to virgin biomass and coal 

refuse could be combusted in boilers not 

designed to burn coal. This decision by 

the EPA allows resinated wood and coal 

refuse to be combusted in any boiler, 

while CTRT combustion must follow 

additional conditions to be burned as a 

non-waste fuel only in specific boilers 

as designated in 40 CFR 241.4(a)(7). 

One commenter also argued that, if a 

unit meets its permit requirements and 

the contaminant comparison criterion is 

met, the designed to burn qualification 

should be irrelevant, and that the CAA 

directs the EPA to focus on emissions 

from the combustion of fuels rather than 

on the nature of the fuel combusted. 

3. EPA Response 

Regarding petitioners’ claim that the 

same NHSM is treated differently in 

different units, such a claim ignores the 

underlying premise of the NHSM rules. 

As explained in the program’s original 

March 21, 2011 rulemaking (76 FR 

15455), the NHSM program exists to 

determine whether an NHSM that is 

combusted is a waste or a non-waste for 

purposes of applying appropriate 

emission standards under CAA section 

129 or CAA section 112 to the unit 

burning the NHSM. An NHSM that is 

burned in a unit that is designed to burn 

a comparable traditional fuel is, because 

of that comparability, a non-waste fuel. 

When an NHSM is burned in a unit that 

is not designed to burn a comparable 

traditional fuel (e.g., that is designed to 

burn fuel with lower levels of 

contaminants than found in the NHSM), 

that combustion is acting as a means of 

destroying those elevated contaminants 

and therefore is more appropriately 

regulated as solid waste incineration. 

Thus, it is entirely appropriate that an 

NHSM would be considered a nonwaste fuel when burned in a unit 

designed to burn a comparable 

traditional fuel, and a solid waste when 

burned in a unit that is not designed to 

burn a comparable traditional fuel. 

Contaminants or groups of contaminants 

in the NHSM must occur at levels 

comparable to or lower than those in the 

traditional fuel the unit is designed to 

burn. As the Agency determined when 

it established the categorical non-waste 

listing for CTRT (81 FR 6687, February 

8, 2016), under 40 CFR 241.4(a)(7)(i), 

each unit must be designed to burn both 

biomass and fuel oil, since contaminant 

levels in CTRT (e.g., SVOCs) are 

considerably higher than in biomass 

alone. Without the designed to burn 

criterion, contaminant levels could be 

compared to any traditional fuel or 

combination of traditional fuels, 

resulting in a unit burning contaminants 

under the boiler provisions in CAA 

section 112 that the unit would 

otherwise never have been eligible to 

handle.13 The EPA has not reopened or 

requested comment on the contaminant 

concentrations of a CTRT in this action 

and continues to rely on the 

determination made in the original 

CTRT categorical non-waste listing (81 

FR 6687, February 8, 2016). 

It should be noted that as a result of 

the 2013 NHSM rule, the regulations 

already provide considerable flexibility 

in implementing the designed to burn 

criterion. Persons making contaminant 

level comparisons may choose any 

traditional fuel that is physically 

capable of being burned, or is actually 

burned, in the particular type of boiler, 

whether or not the combustion unit is 

permitted to burn that traditional fuel. 

Broad groups of similar traditional fuels 

may be used when comparing 

contaminant levels (e.g., coal, biomass, 

fuel oil, and natural gas). The regulatory 

language in 40 CFR part 241 makes it 

clear that a unit is considered designed 

to burn a traditional fuel if it can burn 

the fuel, regardless of whether it has 

burned, or is permitted to burn, such a 

fuel. 

Petitioners suggest replacing language 

in the CTRT rules regarding which units 

are ‘‘designed to burn’’ CTRT with units 

‘‘operating in compliance with all 


ddrumheller on DSK120RN23PROD with RULES1
71768 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 

14AF&PA et al., Petition for Rulemaking to 

Amend the Legitimacy Criteria in 40 CFR part 

241,—The Categorical Non-Waste Fuels 

Classification Criteria for Creosote Treated Railroad 

Ties and Other Treated Railroads Ties, and the 

Definition of Paper Recycling Residuals, December 

7, 2018, page 16. 

15AF&PA et al., Petition for Rulemaking to 

Amend the Legitimacy Criteria in 40 CFR part 

241,—The Categorical Non-Waste Fuels 

Classification Criteria for Creosote Treated Railroad 

Ties and Other Treated Railroads Ties, and the 

Definition of Paper Recycling Residuals, December 

7, 2018, page 16. 

16 81 FR 6724, February 8, 2016. 

applicable permits.’’ However, the 

NHSM rules are used to determine 

which CAA permits are applicable to a 

unit combusting NHSM, making the 

suggested reference to ‘‘applicable 

permits’’ circular and meaningless. 

In regard to petitioners’ comments on 

the EPA’s decision to include in the 

non-waste determination CTRT burned 

as fuel in units at major source pulp and 

paper mills or power producers subject 

to 40 CFR part 63, subpart DDDDD that 

had been originally designed to burn 

biomass and fuel oil, but had switched 

to natural gas (see 40 CFR 

241.4(a)(7)(ii)), the EPA once again 

notes that the Agency neither reopened 

nor took comment on this provision. 

The EPA notes that the petition only 

raised the issue of the requirements that 

limit the non-waste determination for 40 

CFR 241.4(a)(7)(ii) to CTRT combusted 

in facilities that had been built before 

April 2014 in amounts that do not 

exceed 40% in the context of their 

opposition to any requirements under 

the non-waste determination that are 

related to the combustion unit.14 As 

discussed above, petitioners’ claim 

ignores the underlying premise of the 

NHSM rules. As explained in the 

program’s original March 21, 2011 

rulemaking (76 FR 15455), the NHSM 

program exists to determine whether an 

NHSM that is combusted is a waste or 

a non-waste for purposes of applying 

appropriate emission standards under 

CAA section 129 or CAA section 112 to 

the unit burning the NHSM. Thus, in 

general, restrictions related to ensuring 

that an NHSM is burned in a unit that 

was designed to burn a comparable fuel 

in order to be considered a non-waste 

fuel under the CAA are entirely 

appropriate, because it is the ‘‘designed 

to burn’’ criteria that help ensure that 

the NHSM is burned in units that would 

otherwise burn comparable traditional 

fuels (and therefore the NHSM is not 

being burned simply as a means of 

destroying contamination). The EPA 

need not reconsider the specific 

requirements in 40 CFR 241.4(a)(7)(ii) 

beyond the ‘‘designed to burn’’ 

provision that was discussed in detail in 

the petition. No challenge to the 40 CFR 

241.4(a)(7)(ii) regulation was filed and 

the time period to challenge that rule 

has long passed under the judicial 

review provision of RCRA section 7006, 

which requires such challenges to be 

filed within 90 days of the rule’s 

promulgation. The opportunity to 

petition the Agency for changes to any 

RCRA rule is always available to 

members of the public (as is the current 

case), but such petitions are evaluated 

typically based on new information 

identified by petitioners (as well as 

information identified by the Agency, 

and those commenting on a proposed 

Agency action) as the basis for the 

requested changes to a regulation. No 

such information was provided in the 

petition specific to this provision. 

Instead, Petitioners simply provide a 

general assertion that the provision is an 

‘‘arbitrary and unreasonable basis on 

which to decide whether the material is, 

in fact, being discarded or legitimately 

used as fuel.’’ 15 In the future, if a 

member of the public were to petition 

the EPA to reconsider the specific 

requirements in 40 CFR 241.4(a)(7)(ii) 

beyond the ‘‘designed to burn’’ 

provision, the EPA would develop a 

separate regulatory action that considers 

all possible regulatory options for this 

categorical non-waste determination, 

including the option of sunsetting the 

provision at 40 CFR 241.4(a)(7)(ii) and 

leaving the requirements of 40 CFR 

241.4(a)(7)(i) in place, including the 

‘‘designed to burn’’ criteria. 

However, this provision does 

demonstrate that the EPA can and has 

used the Agency’s authority to consider 

‘‘other relevant factors’’ in making a 

categorical non-waste fuel 

determination in cases where one of the 

legitimacy criteria is not met (see 40 

CFR 241.4(b)(5)(ii)). It is important to 

recognize that the provisions of 40 CFR 

241.4(a)(7)(ii) were proposed, based on 

the information available to the Agency 

at the time, to apply to boilers that were 

existing at the time the rule was 

promulgated to avoid penalizing the 

units originally designed to burn both 

biomass and fuel oil that switched to 

cleaner-burning fuel.16 Facilities 

constructed after that point would fall 

under the main provision found at 40 

CFR 241.4(a)(7)(i) and would be able to 

take the existing regulations under 

consideration when deciding their 

operations. Thus, the conditions 

imposed on CTRT combusted in natural 

gas-fired units under 40 CFR 

241.4(a)(7)(ii) are part of the relevant 

factors the EPA used to determine 

whether discard has occurred (see 81 FR 

6724–25, February 8, 2016). 

Commenters claim that the 

environmental implications of not 

combusting CTRT, such as a potential 

increase in landfilling of CTRT and 

subsequent increase in greenhouse gas 

emission from the landfilled CTRT, 

obligate the EPA to withdraw designed 

to burn criteria from the categorical nonwaste listing for CTRT due to ‘‘other 

relevant factors.’’ However, any ‘‘other 

relevant factors’’ considered in weighing 

a categorical non-waste listing must be 

relevant to the core question of whether 

the material is a solid waste when 

combusted. Some commenters propose 

looking to greenhouse gas emissions and 

landfill capacity as ‘‘other relevant 

factors,’’ but neither of these topics 

dictate whether the particular material 

in question is combusted as a waste; 

therefore, both considerations are 

outside the scope of this Petition Denial. 

The ‘‘other relevant factors’’ must still 

be applied in the context of determining 

whether a material is a waste or not. 

Ignoring designed to burn and other 

criteria would violate the fundamental 

principles of solid waste identification 

legitimacy criteria codified in the 

NHSM regulations and upheld by the 

D.C. Circuit Court, as noted at 87 FR 

4536, 4542 (January 28, 2022). The 

extent to which a particular disposal 

practice of NHSM does or does not 

release greenhouse gases or consume 

landfill capacity does not impact 

whether the NHSM is discarded when 

combusted. 

The petitioners’ comments also cite 

two examples of NHSMs—resinated 

wood and coal refuse—that do not have 

designed to burn and existing boiler 

conditions associated with the 

categorical determination (see 40 CFR 

241.4(a)(2) and (3)). The EPA has 

responded to a similar comment on the 

2016 NHSM rule (see 81 FR 6731, 

February 8, 2016), noting how, unlike 

CTRT, resinated wood’s use as a fuel 

was integrated into the production 

process and that resinated wood 

production facilities were specifically 

designed to utilize the material for its 

fuel value (for more, see section III.A.3 

(above) and 76 FR 15500, March 21, 

2011). As for coal refuse, data available 

suggest that this material is used in a 

small selection of coal refuse plants and 

as a secondary fuel at some additional 

bituminous coal combusting electric 

power plants (76 FR 80486, December 

23, 2011). Further, the coal refuse is 

limited to legacy pile coal, which are 

processed in the same manner as 

currently generated coal refuse (a 

traditional fuel) and exhibit similar 

contaminant content. These situations 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71769 

17For more information, see the Summary of 

Public Comments and Responses for the Proposed 

Response to the Petition to Revise the NonHazardous Secondary Material Standard, located in 

the docket EPA–HQ–OLEM–2020–0550. 

are very dissimilar to the case of CTRT 

combusted in a biomass boiler that 

would otherwise burn clean biomass 

because CTRT contain contaminants (in 

particular, PAHs) at levels multiple 

magnitudes higher than clean biomass 

(81 FR 6717, February 8, 2016).17 Thus, 

both these categorical non-waste 

determinations take into account the 

specific types of materials and 

combustion units involved and the 

reasoning cannot be extrapolated to all 

combustion units that might burn CTRT, 

absent the designed to burn criteria. 

The designed to burn criterion is 

fundamental to the NHSM program 

since it is the primary mechanism for 

identifying which traditional fuel 

should be used as the basis of 

determining whether contaminant levels 

in the NHSM are comparable to or less 

than the traditional fuel(s) being 

replaced. Without the designed to burn 

criterion, CTRT could be combusted in 

any biomass-only boiler, including 

biomass boilers that are area sources 

under the CAA. These boilers would 

likely have higher HAP emissions when 

burning CTRT rather than biomass 

because these contaminants are present 

in greater concentrations in CTRT as 

generated. As previously noted, 

emission standards for dioxins, SO2, 

NOX, etc. for non-major sources are 

addressed under the CAA section 129 

standards but are not addressed by area 

source boiler standards under CAA 

section 112 which require only tuneups. The Agency is therefore denying 

petitioners’ request regarding the 

designed to burn criterion. See section 

III.A above for a discussion on the 

contaminant comparison criterion. 

C. Preamble Discussion of Storage 

Times for Railroad Ties 

1. Petitioners’ Request 

In addition to the requested regulatory 

changes, the petition raised an issue 

related to railroad tie storage timeframes 

as it impacts NHSM eligibility as 

discussed in the 2016 NHSM rule. In the 

preamble to that rule, the EPA discussed 

its presumption that storage of CTRT for 

long periods of time (e.g., a year or 

longer) without an end-use 

determination is not ‘‘reasonable,’’ and 

indicates that the material has been 

discarded. Petitioners interpreted this 

preamble language to establish a brightline limit of one year for CTRT 

accumulation in the railroad right-ofway, and asserted that this perceived 

time limit is incompatible with the 

realities of railroad operations. That is, 

unlike discrete facilities from which 

valuable secondary materials are easily 

reclaimed, the railroad right-of-way 

extends over thousands of miles across 

the United States. Petitioners said that 

many locations where CTRT are 

removed are not readily accessible 

except by rail, and tie pickup interrupts 

freight and passenger train service and 

competes with safety-related operations 

such as track maintenance and 

inspection. Train service and safety are 

regulated by the Surface Transportation 

Board and Federal Railroad 

Administration, respectively. Petitioners 

indicated that, due in part to those 

agencies’ requirements, service and 

safety must take precedence over tie 

recovery. Petitioners asserted that these 

challenges make it unrealistic to collect 

used CTRT within one year of removal 

from service—but for reasons 

completely unrelated to the 

determination of whether CTRT are 

managed as a ‘‘valuable commodity’’ 

under the NHSM framework. Petitioners 

also noted that the EPA has recognized 

that ‘‘the reasonable timeframe for 

storage may vary by industry’’ (81 FR 

6725, February 8, 2016). In the context 

of railroad tie management, petitioners 

asserted that three or more years is a 

reasonable timeframe for storage of 

removed CTRT in the right-of-way. 

2. Public Comment 

Comments relating to the perceived 

one-year limit on CTRT accumulation in 

the right-of-way largely reiterated the 

arguments presented in the original 

petition. 

One comment argued that the 

economic value of removed CTRT 

indicates that the CTRT are not 

discarded. This commenter claimed that 

the sale or transfer of CTRT to a third 

party invalidates claims of discard, even 

if final disposition and party of sale 

have not been determined prior to 

removal. Thus, they claimed, 

accumulated CTRT are valuable and 

therefore not discarded under the plain 

language meaning of the word. 

Likewise, multiple commenters 

argued that railroad operational realities 

make the perceived one-year storage 

time limit infeasible for safety and 

logistical reasons. Commenters claimed 

that a one-year time limit for CTRT in 

the right-of-way would be unworkable 

due to remote rail locations and 

prioritization of safety requirements and 

maintenance activities over removal of 

accumulated CTRT. 

Finally, one commenter interpreted 

the EPA’s preamble language from the 

2016 NHSM rule to indicate that CTRT 

cannot be considered discarded until at 

least one year after removal from 

service. Their comment claimed that the 

lack of an explicit statement that CTRT 

are discarded immediately upon 

removal in the 2016 rule indicates that 

the EPA cannot now reasonably 

conclude that discard may occur 

sometime less than one year after tie 

removal. 

3. EPA Response 

Storage time of unprocessed CTRT in 

the right-of-way has little impact for the 

purposes of determining whether the 

CTRT can qualify as a non-waste fuel 

under the Federal NHSM regulations. 

The EPA believes that petitioners’ 

recurring comments surrounding storage 

times and discard originates from a 

misunderstanding of the 2016 rule’s 

preamble language. Therefore, this 

section of the preamble—which relies 

upon the rationale provided in the 2016 

rule—explains why the EPA is denying 

petitioners’ three-year fixed storage 

timeframe consideration and addresses 

petitioners’ misunderstanding of this 

issue by elaborating how and why 

accumulation timeframes in the right-ofway do not affect CTRT’s eligibility to 

be combusted as non-waste fuel under 

the NHSM program. 

First and foremost, qualification of 

CTRT as a non-waste fuel under the 

categorical non-waste determination at 

40 CFR 241.4(a)(7) does not consider 

storage times. Granted, when the EPA 

considers a petition for a categorical 

non-waste listing under 40 CFR 

241.4(b), reasonable storage timeframes 

are required as a component of the 

‘‘managed as a valuable commodity’’ 

legitimacy criterion. However, once the 

determination has been made that the 

petition for a non-waste categorical 

listing meets this requirement, future 

demonstration of those reasonable 

storage timeframes is not required. 

Indeed, this is a major incentive for 

requesting a categorical non-waste fuel 

determination; qualifying operators that 

meet the provisions of the categorical 

listing (in this case, at 40 CFR 

241.4(a)(7)) enjoy streamlined 

management (e.g., do not need to make 

a site-specific demonstration that the 

NHSM meets the legitimacy criteria) 

because it has already been 

demonstrated—through the process of 

establishing the categorical 

determination—that the NHSM in 

question meets the program 

requirements. Thus, entities managing 

CTRT under the categorical listing are 

not required to document the CTRT’s 

storage timeframes and are not limited 

by a bright-line restriction of one year of 

accumulation in the right-of-way. (It 


ddrumheller on DSK120RN23PROD with RULES1
71770 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 

should be noted, however, that 

extended lengths of storage of CTRT in 

the right-of-way could constitute 

disposal under State solid waste 

regulations, making the CTRT subject to 

State solid waste management 

requirements.) 

Should an operator wish to combust 

CTRT as a non-waste fuel under the 

NHSM program outside the confines of 

the categorical determination at 40 CFR 

241.4(a)(7), storage time for CTRT in the 

right-of-way is still unlikely to have a 

meaningful impact on the material’s 

eligibility. In this scenario, the operator 

could choose to employ the selfdetermination process outlined in 40 

CFR 241.3(b)(4) for NHSM that are 

discarded but subsequently processed 

and meet the legitimacy criteria at 40 

CFR 241.3(d)(1). As noted in the 

February 8, 2016 rule’s preamble, the 

amount of time for industry to 

determine value and end use of CTRT 

(whether sent to a landfill, used as fuel, 

or another non-fuel purpose) sometimes 

exceeds one year (81 FR 6725). 

Generally speaking, however, long 

periods of time without determining 

end use can be indicative of discard, 

though there is no bright-line time 

period which triggers a discard 

determination. The fact that CTRT 

removed from service sometimes sit for 

extended periods—regardless of 

whether that period is more than or less 

than a year—indicates that they should 

be viewed critically when determining 

discard status. Further, it is the EPA’s 

understanding (according to the 

descriptions provided in both the 

petition and public comments) that it is 

standard industry practice to transfer 

CTRT to a reclaimer or other third party. 

These CTRT would be considered 

discarded until processed into a nonwaste fuel, since NHSMs that are 

transferred off-site for reclamation and 

reuse as a fuel are considered discarded 

and must be processed and meet the 

legitimacy criteria. The assertion that 

the CTRT are a valuable commodity in 

a robust market does not change the fact 

that the CTRT have been discarded. 

NHSMs may have value in the 

marketplace and still be solid wastes 

until processed. 

It should be noted that discarded 

NHSM may be subject to Tribal, State, 

and local solid waste requirements, 

regardless of their intended future use 

as a non-waste fuel under the Federal 

NHSM program. Though the designation 

of discard may be functionally 

irrelevant for CTRT that are 

subsequently processed and verified to 

meet the legitimacy criteria for nonwaste fuels, CTRT that are determined 

to be solid waste would still be subject 

to all relevant solid waste regulations. 

Indeed, the EPA explicitly addressed 

this issue at 40 CFR 241.3(b)(4), which 

states that until the discarded nonhazardous secondary material is 

processed to produce a non-waste fuel 

or ingredient, the discarded nonhazardous secondary material is 

considered a solid waste and would be 

subject to all appropriate Federal, State, 

and local requirements. 

Thus, a designation of discard does 

not preclude using the NHSM as a nonwaste fuel, so long as the processing 

requirement and legitimacy criteria are 

met. Crucially, the relevant regulations 

at 40 CFR 241.3(b)(4) go on to stipulate 

that the legitimacy criteria apply after 

the non-hazardous secondary material is 

processed to produce a fuel or 

ingredient product. Consideration of 

reasonable timeframes would therefore 

look to the period of storage following 

processing (e.g., grinding CTRT to resize 

the material and removing metal 

contaminants such as rail spikes), which 

the EPA understands to usually be 

short. Moreover, the EPA has not 

established a bright-line limit on 

reasonable storage times and has 

previously explicitly stated that what 

constitutes a reasonable timeframe for 

storage will vary by industry (see, e.g., 

76 FR 15520, March 21, 2011). 

Accordingly, CTRT could be combusted 

as a non-waste fuel after being stored for 

more than one year, so long as storage 

of the processed CTRT is limited to 

reasonable timeframes. 

Thus, the EPA believes that previous 

dialogue between the Agency, 

petitioners, and commenters on 

timeframes for storage of CTRT in the 

right-of-way has little, if any, practical 

effect on the combustion of CTRT as 

non-waste fuel under the Federal NHSM 

program. Accordingly, the EPA is 

denying petitioners’ request to establish 

a rigid three-year timeframe for rail tie 

storage in the right-of-way, and instead 

the Agency will maintain the existing 

standard to allow for flexibility and has 

provided the preceding explanation in 

an attempt to resolve petitioners’ 

misunderstanding. 

Finally, it should be noted that other 

laws or regulations may still apply to 

CTRT placed in the right of way. CTRT 

stored in the right of way could be 

considered discarded and would in 

such cases be subject to all relevant 

Federal, Tribal, State, and local solid 

waste requirements. These regulations 

may vary by location, and State solid 

waste designations are not required to 

match those of the Federal rules. 

Broader issues associated with the 

accumulation of CTRT in the right of 

way would fall under the jurisdiction of 

these regulations. Additionally, some 

States (e.g., California, New York) have 

specific laws or regulations for creosote 

and/or products treated with creosote. 

D. Request To Amend the Definition of 

‘‘Paper Recycling Residuals’’ 

1. Petitioners’ Request 

Petitioners also requested that the 

EPA revise the definition of ‘‘paper 

recycling residuals’’ (PRR) to amend the 

description and remove the definitional 

condition that PRR that ‘‘contain more 

than small amounts of non-fiber 

materials . . . are not paper recycling 

residuals’’ (40 CFR 241.2, emphasis 

added). Petitioners believed that this 

condition is overly vague and directly at 

odds with the Court’s decision in API. 

Petitioners requested that the second 

sentence in the definition precluding 

materials that contain ‘‘more than small 

amounts of non-fiber materials’’ from 

qualifying as PRR should be removed. 

They argued that this condition suggests 

that the list of non-fiber materials 

identified in the definition are somehow 

viewed as contaminants in PRR. But, as 

discussed above, petitioners argue that 

in vacating the contaminant comparison 

criterion in the DSW rule, the D.C. 

Circuit made clear that the mere 

presence of some contaminants in a 

material destined for legitimate 

recycling is not the basis for finding that 

the material has been ‘‘discarded’’ and 

thus subject to regulation as a solid 

waste. 

In addition to arguing that this 

condition is inconsistent with the D.C. 

Circuit’s holding in API, the petitioners 

believe that the ‘‘small amount’’ 

limitation is overly vague. While 

members of the regulated community 

affirm that they have used good faith 

efforts in determining that PRR burned 

as fuel meet this condition, they also 

note that ‘‘a statute which either forbids 

or requires the doing of an act so vague 

that men of common intelligence must 

necessarily guess at its meaning and 

differ as to its applications, violates the 

first essential of due process of law.’’ 

FCC v. Fox Television Stations, Inc., 567 

U.S. at 239, 253 (2012) (internal citation 

omitted). According to petitioners, the 

‘‘small amount’’ criterion in the 

definition of PRR falls squarely within 

this ‘‘impermissibly vague’’ infirmity 

and should be removed from the 

definition to help ensure that ‘‘those 

enforcing the law do not act in an 

arbitrary or discriminatory way.’’ FCC, 

567 U.S. at 253 (internal citation 

omitted). 

Furthermore, petitioners argue that 

the current definition describing PRR as 

‘‘composed primarily of wet strength 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71771 

18This standard was derived from the 2021 ISRI 

Scrap Specifications Circular, which sets an 

industry standard for ‘‘furnish’’ i.e., the paper 

materials being fed into the paper recycling process. 

The Circular sets a standard allowing no more than 

2% non-fiber content in furnish. 19 81 FR 6716, February 8, 2016. 

and short wood fibers’’ is not correct, as 

the re-pulping of recovered fibers can 

result in a variety of strengths and sizes 

of fibers in PRR, so the current 

limitation to ‘‘wet strength and short 

wood fibers’’ is unnecessarily 

restrictive. Some residuals from 

recycling paper, paperboard and 

corrugated containers are composed of 

fibers other than wet strength fibers or 

short-wood fibers, but nonetheless 

cannot be used to make new paper or 

paper products and therefore are burned 

for their energy value. 

In January 2022, the EPA proposed to 

deny this request, and in the same 

notice proposed an amended definition 

of PRR. This new definition replaced 

the less-specific ‘‘small amounts’’ 

language restricting PRR non-fiber 

content with more specific language that 

would have limited the amount of nonfiber content to 2% or less, by weight.18

The revised definition in the proposed 

rule also adopted descriptive changes 

requested in the petition to more 

accurately reflect the nature of PRR. 

2. Public Comment on EPA’s Proposed 

Definition of PRR 

One commenter argued that a nonfiber limit for paper recycling residuals 

was not necessary, reiterating a similar 

assertion presented in the original 

petition. The commenter stated that 

environmental and health risks from 

burning PRR containing non-fiber 

material would already be covered 

under CAA permit conditions, and thus 

adding a non-fiber limit to PRR would 

be redundant. 

Two commenters stated that the 

EPA’s proposed change to the definition 

of paper recycling residuals 

incorporating a limit of 2% by weight of 

non-fiber materials was an 

inappropriate application of an Institute 

of Scrap Recycling Industries (ISRI) 

industry standard. The commenters 

explained that the 2% ISRI figure 

referred to the limit on prohibitive 

materials for ‘‘furnish’’ (i.e., incoming 

mixed paper to be recycled), not to the 

outgoing paper recycling residuals 

created by the recycling process. 

Applying this standard to paper 

recycling residuals would therefore not 

be an appropriate application of the 

standard. 

Several commenters also argued that 

any numeric limit on non-fiber material 

would be difficult for facilities to meet. 

This is due, in part, to the lack of a 

standard test method for measuring the 

non-fiber content of PRR. Furthermore, 

one commenter noted that the 2% 

numeric standard itself could not have 

been met under typical conditions: PRR 

typically have more than 2% non-fiber 

content, albeit this amount also varies 

by mill. 

Rather than the 2% by weight 

threshold for non-fiber materials 

proposed, one commenter suggested 

that a meaningful heating value would 

be a more appropriate standard. 

Commenters argued that heating value 

is central in distinguishing an NHSM 

that is combusted as a legitimate fuel 

from an NHSM combusted for discard, 

and a heating value standard would 

thus be a more appropriate standard for 

managing the concern that non-fiber 

material does not provide for energy 

recovery. The commenter also noted, 

contrary to the EPA’s statement in the 

proposed rule, that non-fiber materials 

like waxes, adhesives, and plastics 

actually raise the heating value of PRR. 

This means that PRR with higher 

amounts of non-fiber material may have 

higher heating values. The commenter 

then suggested that the definition of 

PRR should be modified to state that 

PRR may be considered a non-waste fuel 

if the meaningful heating value of the 

materials is preserved. As a specific 

numerical alternative, the commenter 

also suggested that a value of greater 

than or equal to 6,300 Btu/lb on a dry 

basis, either annually or over a longterm average basis, would be an 

appropriate heating value standard. 

Commentors set this value using AF&PA 

member data and EPA Boiler MACT 

database data. Commenters stated that 

the value was chosen to be at the low 

end of the range of data available, rather 

than the midpoint of the range, to 

ensure that the numeric standard would 

be attainable. 

One commenter agreed with the EPA 

that the current definition of PRR in 40 

CFR 241.2 (‘‘the secondary material 

generated from the recycling of paper, 

paperboard and corrugated containers 

composed primarily of wet strength and 

short wood fibers’’) was too limiting and 

should be changed. However, the 

commenter argued that the EPA’s 

proposed change to ‘‘the secondary 

material generated from the recycling of 

paper, paperboard and corrugated 

containers composed primarily of fibers 

that are too small or weak to be used to 

make new paper and paperboard 

products’’ (emphasis added) was also 

too limiting. The commenter suggested 

that the definition be rewritten to read 

‘‘the secondary material generated from 

the recycling of paper, paperboard and 

corrugated containers that includes 

fibers generally too small or weak to be 

used to make new paper and paperboard 

products’’ (emphasis added). The 

commenter argued that, while mill 

equipment extracts most of the fiber that 

can be made into paper and paperboard, 

some longer and stronger fibers can 

evade the process and end up in the 

PRR. The commenter also noted that 

mills have an economic incentive to 

capture the valuable fibers to make them 

into new products instead of 

combusting these fibers for energy 

recovery. 

3. EPA Response 

The EPA disagrees with the 

petitioner’s original arguments, 

reiterated in comments, for removing 

language limiting the amount of nonfiber materials in PRR burned as a nonwaste fuel. The reasoning for not 

including the non-fiber materials as PRR 

was not focused on discard due to 

contaminants present, but rather, 

discard due to lack of heating value and 

not contributing to energy recovery. In 

the April 14, 2014 proposed rule, the 

EPA requested, but did not receive, 

information regarding the percent of 

non-fiber materials commonly present 

in PRR and their heating value (79 FR 

21017). Lacking information to the 

contrary, the Agency determined that 

PRR with higher amounts of non-fiber 

materials would likely have a lower 

heating value. Combustion of materials 

with low heating values is typically 

considered discard. PRR already have a 

relatively low heating value (as fired, 

average 3,700 Btu/lb on a wet basis),19

so the Agency reasoned that large 

amounts of non-fiber materials would 

lower the heating value of the material, 

further raising the question of burning 

as discard. 

However, in the January 2022 

proposed rule, the EPA sought to set a 

numerical threshold for non-fiber 

materials content, rather than prohibit 

them entirely or rely on the term ‘‘small 

amounts.’’ As indicated above, 

information on such threshold amounts 

of non-fiber materials was not received 

from industry prior to publication of the 

January 2022 proposed rule, and a 

review of current scientific studies also 

did not reveal specific amounts. As an 

alternative, although not directly used 

for PRR as fuels, the Scrap 

Specifications Circular (2021); Institute 

of Scrap Recycling Industries 

Guidelines for Paper Stock identifies a 

2% prohibitive material content limit 

for mixed paper stock used for reVerDate Sep<11>2014 16:15 Oct 17, 2023 Jkt 262001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\18OCR1.SGM 18OCR1

ddrumheller on DSK120RN23PROD with RULES1
71772 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 

20 ISRI Scrap Specifications Circular (2021), page 

34; http://www.scrap2.org/specs/. 

21 81 FR 6718, February 8, 2016. 

22The EPA recognizes that plastic films, foam and 

waxes could increase the heating value of a 

recycling residual stream. While no upper boundary 

on the heat content of PRR is being established, the 

EPA notes that the definition of PRR including the 

term ‘‘composed primarily of fibers’’ would prevent 

application of the PRR definition to materials that 

are composed mostly of plastics, foams and waxes 

removed during the recycling of recovered paper, 

paperboard and corrugated containers. 

pulping paper.20 In the circular, 

prohibitive material is material which 

by its presence, in excess of the amount 

allowed, will make the furnish unusable 

as the grade specified, as well as any 

materials that may be damaging to 

equipment. In evaluating the grades of 

paper identified in the circular, the 

maximum allowance of prohibitive 

materials in mixed paper (which 

consists of all paper and paperboard of 

various qualities not limited to the type 

of fiber content) is 2%. The Agency 

previously concluded that this 

prohibitive material measure could 

provide an analogous measure for nonfiber materials contained within PRR. 

Accordingly, the EPA proposed to set a 

maximum non-fiber content standard 

for PRR of 2% by weight. 

However, information provided to the 

Agency in comments on the January 

2022 proposed rule provided new 

information previously unavailable to 

the Agency. Commenters’ data indicates 

that many of the constituents of nonfiber content in PRR are more likely to 

raise the heating value of PRR. 

Commenters also argued that the ISRI 

standard for non-fiber content of paper 

recycling inputs would be inappropriate 

to apply to material outputs from the 

paper recycling process and claimed 

that the difficulty of complying with the 

proposed standard could lead paper 

recycling mills to dispose of PRR in 

landfills instead. 

Accordingly, the EPA is replacing the 

proposed 2% by weight standard with a 

performance-based threshold to address 

the heating value concerns and 

associated consideration of potential 

discard. Requiring PRR combusted 

under the categorical non-waste listing 

at 40 CFR 241.4(a)(6) to have a 

minimum heating value is intended to 

prevent residuals with poor heating 

value from being used as a fuel in a 

combustion unit, as this use case would 

constitute disposal rather than use as a 

legitimate fuel. 

The Agency maintains that residuals 

from processes such as mixed paper 

waste recycling with significant 

quantities of non-fiber materials (e.g., 

clays, starches) could be considered to 

be a solid waste fuel when combusted 

when those materials lack meaningful 

heating value.21 Under the amended 

definition of PRR, the determination of 

non-waste fuel status would depend 

more directly on the heating value of the 

material stream in question, but could 

still be deemed waste if non-fiber 

content drives down heating value 

below the minimum threshold.22

This unique heating value threshold 

for PRR is appropriate and consistent 

with previous Agency statements 

regarding the use of PRR as non-waste 

fuel for energy recovery. The EPA 

maintains that unique heating value 

expectations are appropriate for PRR 

because the boilers that combust this 

material are specifically designed to 

cost-effectively recover energy from it 

(see 79 FR 21018–9, April 14, 2014). 

Data received in comments corroborate 

that the selected threshold would 

ensure low heating value PRR are not 

discarded under the guise of fuel 

combustion, while also being achievable 

for the limited number of mills that 

currently combust this material. 

Furthermore, the definition of PRR as 

‘‘composed of primarily wet strength 

and short wood fibers’’ was based on 

previously submitted industry 

information (81 FR 6721, February 8, 

2016). However, based on the 

information submitted in this petition, 

the Agency agrees that the reference to 

‘‘primarily wet strength and short wood 

fibers’’ is too limiting and inadvertently 

excludes fibers of different strength and 

size that may provide heating value. 

Nevertheless, the commenter’s 

suggestion to further change the EPA’s 

revised language in the January 28, 

2022, proposal from ‘‘composed 

primarily of fibers that are too small or 

weak to be used to make new paper and 

paperboard products’’ (emphasis added) 

to ‘‘that includes fibers generally too 

small or weak to be used to make new 

paper and paperboard products’’ 

(emphasis added) is not an acceptable 

change. This commenter-proposed 

language would not be a specific enough 

definition to provide assurance that 

non-fiber material in PRR would be 

minimized when PRR are combusted as 

fuel. Commenters argue that the EPA’s 

proposed definition is ‘‘unnecessarily 

limiting,’’ but a definition that upholds 

the integrity of PRR is necessary to 

ensure that non-fiber material is not 

overloaded and labelled as PRR, which 

could show an indication of discard 

rather than use as a legitimate fuel. 

Therefore, we are finalizing the proposal 

to change the language to ‘‘fibers that 

are too small or weak to be used to make 

new paper and paperboard products.’’ 

Accordingly, the Agency finalizes the 

revised definition of PRR as set out in 

the amendatory section at the end of 

this document. 

IV. Effect of This Action on Other 

Programs 

The primary action of this final 

rulemaking is to revise the definition of 

Paper Recycling Residuals in the NHSM 

regulations at 40 CFR 241.2. 

Accordingly, this action affects other 

programs only insofar as they rely on 

the definitions outlined in part 241. In 

particular, Clean Air Act permitting 

regulations refer to the RCRA definition 

of solid waste in determining whether a 

combustion unit is a solid waste 

incinerator or an industrial furnace for 

permitting purposes. Thus, the changes 

to the definition of PRR implemented by 

this rule apply to CAA permitting 

nationwide (i.e., do not depend upon 

State adoption). 

In order to qualify as a categorical 

non-waste fuel under 40 CFR 241.4(a) 

and thereby be combusted in a unit not 

permitted to incinerate solid waste 

under the CAA, a material would have 

to meet the relevant definition in 40 

CFR 241.2 and fulfill any additional 

requirements listed in the relevant 

categorical non-waste listing at 241.4. 

Additionally, though the NHSM 

regulations do not include specific 

record-keeping requirements, the CAA 

regulations at 40 CFR 60.2175(v) (for 

new sources) or 40 CFR 60.2740(u) (for 

existing sources) require that units 

combusting materials designated as 

categorical non-waste fuels under the 

NHSM program must keep records 

demonstrating that the material is a 

listed non-waste fuel under 40 CFR 

241.4(a). In order to fulfill that 

requirement, the material would have to 

meet the definition of the categorical 

non-waste (at § 241.2) as well as any 

additional requirements included in the 

NHSM listing itself (at § 241.4(a)). 

Under the current RCRA and CAA 

regulations, as implemented through 

Title V permits, an operator combusting 

a material as a categorical non-waste 

fuel must show that the material meets 

the definition of the categorical nonwaste listing they are claiming. Based 

on the revised definition of Paper 

Recycling Residuals, the relevant CAA 

permitting authority may require the 

operator to document the fact that the 

PRR’s heating value is above the 

definitional threshold of 6,300 Btu/lb on 

a dry basis. Given the fact the operator 

must know fuel value of the PRR for 

proper operation of the boiler, such a 

potential permit condition is expected 

to have a negligible burden. The exact 

nature and frequency of the sampling 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71773 

performed to document the fact that the 

PRR meet the revised definition in 40 

CFR 241.2 will vary according to 

numerous site-specific factors and 

therefore is best left to the discretion of 

the relevant permitting authority. It 

should also be noted that the definition 

of PRR refers to ‘‘secondary material 

generated from the recycling of paper, 

paperboard and corrugated containers,’’ 

so inclusion of materials that are not 

part of the usual paper, paperboard, or 

corrugated container recycling processes 

is definitionally disallowed. 

Beyond amending the definition of 

PRR, this action does not change the 

effect of the NHSM regulations on other 

programs as described in the March 21, 

2011 NHSM final rule (76 FR 15456), as 

amended on February 7, 2013 (78 FR 

9138), February 8, 2016 (81 FR 6688) 

and February 7, 2018 (83 FR 5317). 

Refer to section VIII of the preamble to 

the March 21, 2011 NHSM final rule for 

the discussion on the effect of the 

NHSM rule on other programs. 

V. State Authority 

A. Relationship to State Programs 

This action and change to the 

definition of PRR does not change the 

relationship to State programs as 

described in the March 21, 2011 NHSM 

final rule. Refer to section IX of the 

preamble to the March 21, 2011 NHSM 

final rule for the discussion on State 

authority including, ‘‘Applicability of 

State Solid Waste Definitions and 

Beneficial Use Determinations’’ and 

‘‘Clarifications on the Relationship to 

State Programs.’’ The Agency, however, 

would like to reiterate that this rule (like 

the March 21, 2011 and the February 7, 

2013 final rules) is not intended to 

interfere with a State’s program 

authority over the general management 

of solid waste. 

B. State Adoption of the Rulemaking 

No Federal approval procedures for 

State adoption of this final rule are 

included in this rulemaking action 

under RCRA subtitle D. While states are 

not required to adopt regulations 

promulgated under RCRA subtitle D, 

some states incorporate Federal 

regulations by reference or have specific 

State statutory requirements that their 

State program can be no more stringent 

than the Federal regulations. In those 

cases, the EPA anticipates that, if 

required by State law, the changes being 

made in this document will be 

incorporated (or possibly adopted by 

authorized State air programs) 

consistent with the State’s laws and 

administrative procedures. 

VI. Costs and Benefits 

This action is definitional in nature, 

and any costs or benefits accrue to the 

corresponding Clean Air Act rules. In 

accordance with the Office of 

Management and Budget (OMB) 

Circular A–4 requirement that the EPA 

analyze the costs and benefits of 

regulations, the EPA prepared a 

regulatory impact analysis document for 

this action that examines the scope of 

indirect impacts. 

VII. Children’s Environmental Health 

Executive Order 13045 requires that 

economically significant rules that may 

impact children’s environmental health 

are evaluated against possible 

alternatives. Though this rule is not 

economically significant and its impacts 

are not expected to affect children’s 

environmental health, the Agency still 

considers potential environmental 

health effects on children under EPA’s 

2021 Policy on Children’s Health. 

Children’s environmental health 

refers to the effect of environmental 

exposure during early life: from 

conception, infancy, early childhood, 

and adolescence through until 21 years 

of age. EPA’s policy is informed by the 

scientific understanding that children 

may be at greater risk to environmental 

contaminants than adults due to 

differences in behavior and biology and 

that the effects of early life exposures 

may also arise in adulthood or in later 

generations. 

However, EPA does not believe the 

environmental health or safety risks 

addressed by this action present a risk 

to children. Because this rule does not 

change existing conditions, no 

environmental health impacts are 

expected to arise from this rulemaking. 

The change to the definition of PRR 

would not affect the overall risk to 

anyone, including children, posed by 

boiler emissions. This is because the 

overall level of emissions, or the 

emissions mix from boilers, are not 

expected to change significantly because 

of the change in definition of PRR. 

In the event of any unforeseen 

changes to air emissions, the EPA does 

not believe this change would 

disproportionately impact children. A 

demographic analysis of the populace 

living near major source boilers found 

that the percentage of the population in 

these areas that are children is generally 

the same as the national average (see 

‘‘Assessment of the Potential Costs, 

Benefits, and Other Impacts for the 

Final Rule’’ in the docket). Further, 

boilers at paper recycling mills that 

combust PRR as non-waste fuel remain 

subject to the appropriate standards 

established under CAA section 112. 

Thus, even in the event of a change in 

air emissions due to this rule, any 

potential health impacts would not be 

expected to disproportionately affect 

children. Additionally, this rule is 

definitional in nature, so any 

considerations of risk related to 

combustion units’ CAA permits should 

be accounted for in the relevant CAA 

rulemakings that established those 

permitting programs. 

VIII. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

This action is a ‘‘significant regulatory 

action’’ as defined in Executive Order 

12866, as amended by Executive Order 

14094, because it may raise legal or 

policy issues for which centralized 

review would meaningfully further the 

President’s priorities or the principles 

set forth in the Executive Order. 

Accordingly, EPA submitted this action 

to OMB for Executive Order 12866 

review. Documentation of any changes 

made in response to the Executive Order 

12866 review is available in the docket. 

The EPA prepared an economic analysis 

of the potential impacts associated with 

this action. This analysis, ‘‘Assessment 

of the Potential Costs, Benefits, and 

Other Impacts for the Final Rule’’ is also 

available in the docket. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden under the 

PRA as this action only changes the 

definition of PRR for the purposes of the 

NHSM regulations. There are no new 

recordkeeping or reporting requirements 

with this definitional change. OMB has 

previously approved the information 

collection activities contained in the 

existing regulations and has assigned 

OMB control number 2050–0205. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 

determination, the EPA concludes that 

the impact of concern for this rule is any 

significant adverse economic impact on 

small entities and that the agency is 

certifying that this rule will not have a 

significant economic impact on a 

substantial number of small entities 


ddrumheller on DSK120RN23PROD with RULES1
71774 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 

23For more information on the environmental 

justice analysis, see the March 21, 2011 NHSM final 

rule (76 FR 15455) and U.S. EPA, Office of Resource 

Conservation and Recovery, Summary of 

Environmental Justice Impacts for the NonHazardous Secondary Material (NHSM) Rule, the 

2010 Commercial and Industrial Solid Waste 

Incinerator (CISWI) Standards, the 2010 Major 

Source Boiler NESHAP and the 2010 Area Source 

Boiler NESHAP, February 2011, docket number 

EPA–HQ–RCRA–2008–0329–1834. 

because the rule has no net burden on 

the small entities subject to the rule. 

Because the petition denial maintains 

the status quo, there is no impact to any 

entity, including to any small entity, 

from the petition denial. In addition, the 

revision to the definition of PRR will 

reduce regulatory uncertainty associated 

with these materials and help increase 

management efficiency for all pulp and 

paper mills with units that combust 

PRR, including mills that meet the 

definition of small entity without 

requiring a change in operations. We 

have therefore concluded that this 

action has no net burden on the small 

entities subject to the rule. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The costs involved in this 

action are imposed only by participation 

in a voluntary Federal program. UMRA 

generally excludes from the definition 

of ‘‘Federal intergovernmental mandate’’ 

duties that arise from participation in a 

voluntary Federal program. Affected 

entities are not required to manage the 

final additional NHSMs as non-waste 

fuels. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications as specified in Executive 

Order 13175. It will neither impose 

substantial direct compliance costs on 

Tribal governments, nor preempt Tribal 

law. Potential aspects associated with 

the categorical non-waste fuel 

determinations under this final rule may 

invoke minor indirect Tribal 

implications to the extent that entities 

generating or consolidating these 

NHSMs on Tribal lands could be 

affected. However, any impacts are 

expected to be negligible. Thus, 

Executive Order 13175 does not apply 

to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045 directs Federal 

agencies to include an evaluation of the 

health and safety effects of the planned 

regulation on children in Federal health 

and safety standards and explain why 

the regulation is preferable to 

potentially effective and reasonably 

feasible alternatives. This action is not 

subject to Executive Order 13045 

because it is not a significant regulatory 

action under section 3(f)(1) of Executive 

Order 12866, and because the EPA does 

not believe the environmental health or 

safety risks addressed by this action 

present a disproportionate risk to 

children. The change to the definition of 

PRR would not affect the overall risk to 

children posed by boiler emissions. This 

is because the overall level of emissions, 

or the emissions mix from boilers, are 

not expected to change significantly 

because of the change in definition of 

PRR, and because boilers at paper 

recycling mills that combust PRR as 

non-waste fuel remain subject to the 

appropriate standards established under 

CAA section 112. 

However, the EPA’s Policy on 

Children’s Health applies to this action. 

Information on how the Policy was 

applied is available under ‘‘Children’s 

Environmental Health’’ in Section VII of 

this preamble. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution or use of energy. 

The selected NHSMs affected by this 

proposed action would not be generated 

in quantities sufficient to significantly 

(adversely or positively) impact the 

supply, distribution, or use of energy at 

the national level. Even if 100% of the 

available PRR were converted to energy 

(an unlikely best-case scenario), that 

would translate to a potential increase 

of only 0.002% to 0.003% in the 

national energy supply, and these 

effects would be localized at recycling 

paper mills. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This action involves technical 

standards. Therefore, the EPA 

conducted a search to identify 

potentially applicable voluntary 

consensus standards. However, the 

Agency identified no such standards 

and none were brought to its attention 

in comments. Therefore, the EPA has 

decided to use the 6,300 Btu/lb dry 

basis minimum standard for PRR 

heating value. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) directs Federal 

agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations (people of color and/or 

indigenous peoples) and low-income 

populations. 

The EPA believes that the human 

health or environmental conditions that 

exist prior to this action result in or 

have the potential to result in 

disproportionate and adverse human 

health or environmental effects on 

communities with environmental justice 

concerns. Both landfills and boilers are 

generally more likely to be located in 

disadvantaged communities, so 

transporting and managing NHSMs 

(whether for disposal at a landfill or 

combustion as a non-waste fuel in a 

boiler) is likely to have environmental 

health effects on these communities.23

The EPA believes that this action is 

not likely to change existing 

disproportionate and adverse effects on 

communities with environmental justice 

concerns. This is because the overall 

level of emissions, or the emissions mix 

from boilers, are not expected to change 

significantly because of the change in 

definition of PRR, and because boilers at 

paper recycling mills that combust PRR 

as non-waste fuel remain subject to the 

protective standards established under 

CAA section 112. Further, this RCRA 

action alone does not directly require 

any change in the management of these 

materials. Thus, any potential materials 

management changes stimulated by this 

action, and corresponding impacts to 

minority and low-income communities, 

are considered to be indirect impacts, 

and would only occur in conjunction 

with the corresponding CAA rules. 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Rules and Regulations 71775 

The information supporting this 

Executive Order review is contained in 

the docket as part of the Assessment of 

the Potential Costs, Benefits, and Other 

Impacts of the Final Rule. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 241 

Environmental protection, Air 

pollution control, Non-Hazardous 

Secondary Materials, Waste treatment 

and disposal. 

Michael Regan, 

Administrator. 

For the reasons set forth in the 

preamble, the EPA amends 40 CFR part 

241 as follows: 

PART 241—SOLID WASTES USED AS 

FUELS OR INGREDIENTS IN 

COMBUSTION UNITS 

■ 1. The authority citation for part 241 

continues to read as follows: 

Authority: 42 U.S.C. 6903, 6912, 7429. 

■ 2. Section 241.2 is amended by 

revising the definition of ‘‘Paper 

recycling residuals’’ to read as follows: 

§ 241.2 Definitions. 

* * * * * 

Paper recycling residuals means the 

secondary material generated from the 

recycling of paper, paperboard and 

corrugated containers composed 

primarily of fibers that are too small or 

weak to be used to make new paper and 

paperboard products. Secondary 

material from paper recycling processes 

with a heating value below 6,300 Btu/ 

lb on a dry basis due to excessive nonfiber material content (including 

polystyrene foam, polyethylene film, 

other plastics, waxes, adhesives, dyes 

and inks, clays, starches and other 

coating and filler material) are not paper 

recycling residuals for the purposes of 

this definition. 

* * * * * 

[FR Doc. 2023–22878 Filed 10–17–23; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 230306–0065; RTID 0648– 

XD274] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod in the 

Bering Sea Subarea of the Bering Sea 

and Aleutian Islands Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod, except for the 

Community Development Quota 

program (CDQ), in the Bering Sea 

subarea of the Bering Sea and Aleutian 

Islands management area (BSAI). This 

action is necessary to prevent exceeding 

the non-CDQ allocation of the 2023 

Pacific cod total allowable catch (TAC) 

in the Bering Sea subarea of the BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), October 16, 2023, through 

2400 hrs, A.l.t., December 31, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Krista Milani, 907–581–2062. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI according to the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area (FMP) prepared by 

the North Pacific Fishery Management 

Council under authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). Regulations 

governing fishing by U.S. vessels in 

accordance with the FMP appear at 

subpart H of 50 CFR part 600 and 50 

CFR part 679. 

The non-CDQ allocation of the 2023 

Pacific cod TAC in the Bering Sea 

subarea of the BSAI is 113,776 metric 

tons (mt) as established by the final 

2023 and 2024 harvest specifications for 

groundfish in the BSAI (88 FR 14926, 

March 10, 2023) and correction (88 FR 

18258, March 28, 2023). In accordance 

with § 679.20(d)(1)(i), the 

Administrator, Alaska Region, NMFS, 

has determined that the non-CDQ 

allocation of the 2023 Pacific cod TAC 

in the Bering Sea subarea of the BSAI 

will soon be reached. Therefore, the 

Regional Administrator is establishing a 

directed fishing allowance of 110,976 

mt, and is setting aside the remaining 

2,800 mt as incidental catch in directed 

fishing for other species. In accordance 

with § 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for Pacific cod in the 

Bering Sea subarea of the BSAI. 

While this closure is effective, the 

maximum retainable amounts at 50 CFR 

679.20(e) and (f) apply at any time 

during a trip. 

Classification 

NMFS issues this action pursuant to 

section 305(d) of the Magnuson-Stevens 

Act. This action is required by 50 CFR 

part 679, which was issued pursuant to 

section 304(b), and is exempt from 

review under Executive Order 12866. 

Pursuant to 5 U.S.C. 553(b)(B), there 

is good cause to waive prior notice and 

an opportunity for public comment on 

this action, as notice and comment 

would be impracticable and contrary to 

the public interest, as it would prevent 

NMFS from responding to the most 

recent fisheries data in a timely fashion 

and would delay the directed fishing 

closure of non-CDQ Pacific cod in the 

Bering Sea subarea of the BSAI. NMFS 

was unable to publish notice providing 

time for public comment because the 

most recent, relevant data only became 

available as of October 12, 2023. 

The Assistant Administrator for 

Fisheries, NOAA also finds good cause 

to waive the 30-day delay in the 

effective date of this action under 5 

U.S.C. 553(d)(3). This finding is based 

upon the reasons provided above for 

waiver of prior notice and opportunity 

for public comment. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: October 13, 2023. 

Jennifer M. Wallace, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2023–22958 Filed 10–13–23; 4:15 pm] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 230224–0053; RTID 0648– 

XD331] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pollock in Statistical 

Area 630 in the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 


ddrumheller on DSK120RN23PROD with RULES1