December 18, 2012

Information Sent to EPA Regarding C&D wood and Railroad Ties
Although comment was requested only for the specific materials identified in the December 23, 2011 proposed rule, the agency received information intended to support requests for other NHSMs be listed as categorical non-wastes (for which it did not request additional information as a part of this rulemaking) and/or to support a non-waste determination through the petition process codified in 40 CFR 241.3(c). The agency did not specifically solicit comments on these additional materials and, thus, has not responded to these comments in the current rulemaking action. Further, the agency cannot make final determinations regarding these materials without first going through a separate rulemaking, providing the regulated community the opportunity to comment regarding the appropriateness of adding these materials to the list of non-waste fuels codified in 40 CFR 241.4(a). However, we have included these materials in the rulemaking record, as these materials were provided by the regulated community as comments in support of their position that additional NHSMs be listed as categorical non-waste fuels.
Refer to the discussion in the Section of III.D.5.d of the preamble to the recent final rule for more information on these materials.

The following documents are enclosed:
1. Construction and Demolition Debris Wood (C&D wood) 1a. A letter from Susan Parker Bodine of Barnes &Thornburg LLP on behalf of the Construction Materials Recycling Association (CMRA) and Biomass Power Association (BPA) sent to EPA December 7, 2012. The letter is requesting a national determination that C&D wood that is processed and managed as described is a nonwaste fuel. 1b. Appendix A to Letter 1c. Summary of Waste Management C&D Wood Fuel Data (dated November 12, 2012)

2. Railroad Ties 2a. An e-mail was sent from Paul Noe of American Forest &Paper Association to EPA on December 6, 2012. 2b. The attached draft letter provided information on railroad ties in the form of a draft petition for categorical non-waste. 2c. Additional information sent from the Treated Wood Council December 17

### Appendix A

I. Contaminant Comparison of C&D Wood to Traditional Fuels

A c om parison of

t he vari ous contaminants fo und in C&D wood was made wi th t radit io nal fuels. Thi s was done by co mpar ing th e 90% UPL (Upper Prediction Limit) of t he contaminants fo r C&D

woo d wit h th e maximum value reported fo r th e tradi ti onal fu el

. This method was chosen fo llo wing th e guidance of EPA, as stated in the rule preamble:

Given data for a particular traditional fuel, it makes intuitive sense to base the traditional fuel compariso n value on the upper end of its statistical range. Anything less could result in ‘‘traditional fuel’’ samples being considered solid waste if burned in the very combustion units designed to burn them...(76 Fed Reg 80453)
Largely, it i s seen fo r all contamin ants, a com parable nature is shown between C&D and tradi ti onal fuels. However, from th e two states th at had readily available informat io n regarding fo rm aldehyde, thi s contaminant proved to be higher th an what is reported fo r wood/bio ma ss by EPA. A fo rmal

e xplanat io n fo r this occurrence and it s subsequent com parison to tradi

ti onal fu els is discussed further, below.

Also, it s hould be pointed out th at th e readily available data fo r a few states reported a 90% UPL higher th an tradi

ti onal fuels. This can be se en in New York’s fluori de data and Maine’s chromium data. In both cases, a mo re detailed co mpar ison was fo llo wed. Once again, this was done fo llo wing th e gui dance of

E PA a nd it s concept of

c om paring groups of contaminants. This was stated as fo llo ws:

While persons may satisfy the contaminant legitimacy criterion on a contaminant

- by

contaminant basis, comparing groups of contaminants in the NHSM to similar groups in traditional fuels could also be appropriate, provided the grouped contaminants share physica l and chemical properties that influence behavior in the combustion unit prior to the point wh ere emissions occur. Volatility, the presence of specific elements, and compound structure are three such properties. (76 Fed Reg 80477)

The 90% UPL fo r th e avai lable New York fluori de data was 584.9 ppm, which is above th e maximum value set fo rth by both wood/bi omass (300 ppm) and coal ( 64 ppm ). However, when combining fluori de wi

th th e oth er potenti al contaminant halogens, a co mparable analysis is shown. The 90% U PL fo r halides in New York equates to 2122 ppm, which is significant ly lo wer th an maximum values fo r wood/bi omass in both th e OAQPS database and it s literary s ources, as well as th e OAQPS maximum value fo r coal

. As such, we believe th ese sam ples do show a com

parable nature to tradit io nal fuels.

In th e case of

c hromium in Maine, th e 90% UPL fo r th e readily a vailable data was 352 ppm. This value is slightly higher than the maximum value reported for wood/bi omass in the OAQPS database (340 ppm ). On a conta minant

- by

- contaminant basis, we believe this sati sfies the leg it imacy cri teri on
on it s own and is co mparable however; we also f ollowed th

rough wi th a c ontaminant grouping analysis. In this case, a grouping of total metals was analyzed. From the readily ava ilable metal s data

### 2

fo r th e State of

M aine, a 90% UPL of

t otal m etals yielded 427 ppm. This number is significant ly lo wer th an th e total

metals concentrati on reported by th e OAQPS. Though, as seen in th e attached tables, certain metal s of

g enerally

h igh concentrati on

( Manganese) were not included in th e Maine dataset. As such, a co mpar ison was th en fo llowed th rough analyzing th e five metal s in th e Maine dataset wit h th e same five metals in tradi ti onal fu els. When adding th e maximum val ues of arsenic, chro miu m, l ead, mercury and selenium

f or wood/bi om ass, th e lit erary s ources reported by EPA had

a total m aximum metal s concentrati on of 4 79 ppm and th e OAQPS dataset had a total m aximum metal s concentrati on 877.1 ppm . Both of th ese values are above the 90% UPL fo r total metals in the Maine dataset. We believe this gives further proof that the metals concentrations in Maine are indeed

com parable to tradi

ti onal f uels.

II. Comparability of Formaldehyde Levels In C&D Wood

The contaminant com

parison set fo rth below s hows f ormaldehyde levels in wood and bio mass at a maximum of

2 7 ppm , no data on fo rmaldehyde levels in coal
, and fo rm aldehyde levels in C&D wood at a maximum of 130 ppm. Despi te th ese difference s , we b elieve contaminant le vels in C&D wood are comparable to co al and to wood and biomass.

Fi rst, EPA allows groups of c ontaminants in the rel evant tradi ti onal fuels to b e co mpared to groups of c ontaminants in NHSM when making a contaminant com parison. Grouping s are suggested in table 8 of EPA’s December 2011 propo sed rule, but a party may use oth er technically reasonable approaches to groupings. 7 6 Fed. Reg. at 80477. W e have chosen to group VOCs and SVOC together. A ccording to EPA this grouping is technically reasonable because EPA groups vo lat ile hydrocarbons and semi

- vo lat ile hydrocarbons when setting standards under the Clean Air Act. Id.

We note that other than fo rm aldehyde, which, if not an artifact of the test method, 1 

### i s likely in C&D wood from

resinated wood, these other hazardous ai r pollutants have b een tested and found below or
near detecti on limits (see Minnesota data). When th e PAH levels in coal are grouped wi

th o th er VOCs and SVOC and com pared to th e le vels of

t his contaminant grouping in C&D wood, as demonstrated in the attached Minnesota C&D data, the levels are comparable to coal.

Second, based on process knowl edge, we are aware of no sources of fo rmaldehyde in processed C&D wood other than the fo rm aldehyde fo und in clean cellulosic bio mass and resinated wood. 2 

### T o th e extent th at fo rmald ehyde i s present in processed C&D wood from resinated wood products, it i s
a VOC fro m non

- waste mat eri als because EPA has clearly asserted in the init ial rule and the revised rul e t hat resinated wood th at is co mbusted is not a waste and is proposing to co d ify th at determinat io n in 40 C.F.R. Part 241. See 76 Fed. Reg. at 80483 and proposed 40 C.F.R. 241.4(a)(2).
In support of the fuel content value o f fo rmaldehyde, EPA has asserted,

1 These tests indicating for maldehy de in the range of 9.3 to 130 ppm in C&D wood were measured by EPA Method 8315a. This method applies a dinitrophenylhydrazine (DNPH) derivatization technique. The DNPH solution is acidic and reactive and is suspected to create formaldehyde, es pecially from bound for maldehyde in cured resins and potentially creates formaldehy

de from wood sugars. Word, David, NCASI, personal communication to Karl Seltzer

– Koogler and Associates, Inc., September 2012.

2 EPA agrees that combustors may rely on p ro cess knowledge wh en making contaminant comparisons. 76 Fed. Reg. at 80477.

### 3

Resinated wood is highly valued within the wood products industry for it s high fuel value relative to other wood fuels generated and burned at these facilities for energy recovery. Many facilities rely on mixing of these low moisture content wood materials with higher moisture materials. Resinated wood residuals are routinely transferred bet ween either intra

or inter

- c ompany facilities and used as either ‘‘furnish’’ (i.e., raw m aterials) or fuel at the receiving facilities. The material being transferred off

- site is used and handled in the same
manner that resinated wood resi duals are used wh en generated on

- s ite. In general, the motivation to use the resinated wood as a fuel, even with the slightly higher formaldehyde levels, predominates over the motivation to dispose of the formaldehyde. See American Petroleum Institute v. EPA, 216 F.3d 50, 58 (DC Cir. 2000) (in declaring reclaimed oily

wa stewater to be a wa ste, the EPA failed to explain wh y the discard motivation predominated the recycling motivation). Indeed, discard of the formaldehyde is a very distant second to the fuel product use of the resinated wood.
C&D wood should be considered a mixture of wood that EPA has already determined to be a non

waste, and wood for which that determinat io n is pending. Based on the contaminant analysis herein, EPA can determine that, for that component of C&D wood not already addressed by EPA’s non

waste determinat io n fo r resinated wood, the contaminant levels are comparable to tradi ti onal wood and bio mass fuel and therefore C&D wood meets the contaminant comparison legit imacy criterion

whether or not it is combusted in a bo iler that is designed to burn coal

.
Thi rd, f ormaldehyde is an organic co mpound th at is readily vo lat ilized to become a VOC under standard tem

perature and pressure having a bo iling point at

- 19 degree C. Tradit i onal bio mass includes numerous fo rms of o rganic co mpounds in a so lid/liquid matrix th at which can emit/vo lat ilize minor fract io ns of V OCs including fo rmaldehyde and other listed hazardous ai r pollutants under standard tem perature and pressure. By increasin g tem

perature and/or th e pressure, but not to the point of

c om busti on, tradi

ti onal bio mass can further release such VOCs in increasing fractions. Given th e highly co mp lex nature of t he organic com

pounds which com

prise tradi

ti onal wood, i dent ificat io n of

th e series of chemical reactions or lack of reacti on f

or this process continues to generate extensive research. Wo od th at is processed to create co nstruction lumber wood, whic h eventually beco me s C&D wood, must be dried. There is research indicat ing th at vir gin wood can generate significant amounts of VOCs through the drying process.
EPA has data demonstrating that some tradit io nal virgin wood does have VOCs within the wood it self, pri or to drying, and that this amount can be as high as 20,000 ppm. 3 

### In add it io n, there are

am ple data on the emissio ns of VOCs fro m th e process of drying construction lumber wood. For example, according to scient ist s f rom Oregon State Universit y, drying ponderosa pine wood, dryers emit between 1.6 and 3.0 pounds of VOCs per thou sand board feet (mbf) (3330 lb 4 

### ) or 480 to 900

3 See EPA

- HQ

- RCRA

- 2008

- 0329

- 1866 (AF&PA data on organic contaminants in traditional fuel showing that Virginia pine can contain 2% turpentine, which is a VOC). Terpenes such as turpentine have the potential to form formaldehyde in the atmosphere. See Milota, Michael R., Emissions from Wood Drying, The science and the issues, Forest Products Journal, June 1, 2000, at 19, available at http://www.nrem.iastate.edu/class/assets/for486/ Readings/Emissions%20from%20Wood%20Drying.pdf

. Thus, these VOCs can be grouped with formaldyde when considering contaminent levels. This appr oach is consistent with how EPA is proposing to address other potential presursors. See 76 Fed. Reg. at 80480.
4 AP

- 42, Appendix A, 40 lb/ft3

– based on density of pine, (1 mbf = 83.3 ft3)

### 4

part per millio n mass basis, depending on the temperature of the dryer. 5 

### The corresponding amount of measured VOC hazardous air pollutants (study includes methano l, f

ormaldehyde, acetaldehyde, propi onaldehyde, and acro le in) fro m ponderosa pine wood dryers ranged from 0.0833 to 0.189 lb/mbf (25 to 57 ppm mass basis). Similar measurements show clean wood dryers generat ing 0.96 pounds per oven dried ton of methano l (i .e., 0.048 percent methanol per ton of dried wo od). 6 

### These are VOC HAPs that are no longer available to be released fro m th e kiln

- dried l umber which is

source materi al

f or constructi on wood and eventually C&D wood. Accordingly, EPA could concl ude that the VOC HAP levels in C&D wood are not in concentr at io ns “not normally associ ated wi th virgin bio mass material,” making C&D wood clean cellulosic bio ma ss: a tradi ti onal f uel

. See 40 C.F.R. 241.2.

5 Milota and Mosher, Emissions of hazardous air pollutants from lumber drying, Forest Products Journal, July/August 2008, Vol. 58, No. 7/8, at 52. Available at http://www.deq.idaho.gov/media/591021

- milota_mosher_emissions_study.pdf 6 EPA, AP

- 42, 5 thedition, Table 10.6.3

- 3, http://www.epa.gov/ttn/chief/ap42/ch10/final/c10s0603.pdf

### III. C&D Wood Data(with coal data)

Literary Sources 1 OAQPS Databases 1 Wood and Biomass Wood and Biomass Coal C&D Samples from Minn esota 2 Compound Un its Min. Max Min. Max Avg. Min. Max Avg. No. Min. Max Avg. 90% UPL 3 Antimony (Sb) ppm ND 26 ND 6.0 0.9 ND 6.9 1.7 7 0.17 0.59 0.36 0.58 (a) Arsenic (As) ppm ND 6.8 ND 298 6.3 ND 174 8.2 7 1.95 65.7 23.17 6 1.44 (a) Ber yl lium (Be) ppm

-- -- ND 10 0.3 ND 206 1.9 7 0.008 0.008 0.008 * Cadmium (Cd) ppm ND 3 ND 17 0.6 ND 19 0.6 7 0.13 0.25 0.16 0.3 (a) Chromium (Cr) ppm ND 130 ND 340 5.9 ND 168 13.4 7 3.01 73.2 27.4 70.24 (a) Cobalt (Co) ppm ND 24 ND 213 6.5 ND 25.2 6.9 7 0.38 1.52 0.62 1.52 (c) Lead (Pb) ppm ND 340 ND 229 4.5 ND 148 8.7 7 8.8 96.8 33.1 85.9 (b) Manganese (Mn) ppm 7.9 840 ND 15800 302 ND 512 26.2 7 38.6 156 59.14 156 (c) Mercury (Hg) ppm ND 0.2 ND 1.1 0.03 ND 3.1 0.09 7 0.015 0.049 0.03 0.0 5 (a) Nickel (Ni) ppm ND 540 ND 175 2.8 ND 730 21.5 7 1.06 5.05 2.11 4.27 (b) Selenium (Se) ppm ND 2 ND 9.0 1.1 ND 74.3 3.4 7 0.27 0.31 0.28 0.31 (c) Total Metals + ppm 7.9 1912 ND 17098.1 330.9 ND 2066 .5 92.59 7 75.18 295.95 146.36 295.9 (c) Br omin e pp m

-- -- -- -- -- -- -- -- 7 6 7 6.14 7 (c) Chlorin e ppm ND 2600 ND 5400 259 ND 9080 992 7 90 130 102.14 125.6 (a) Fluorin e ppm ND 300 ND 128 32.4 ND 178 64.0 7 5 25 16.57 25 (c) Total Halogens + ppm ND 2900 ND 5528 291.4 ND 9258 1056 7 101 161 124.86 161 .9 (a) Formaldehyde ** ppm 1.6 27.0

-- -- -- -- -- -- 7 9.3 110 31.3 76.1 (b) Moisture wt %

-- -- -- -- -- -- -- -- 7 12.05 15.2 13.8 15.47 (a) Ash wt %

-- -- -- -- -- -- -- -- 7 0.52 0.7 0.65 0.741 (a) Volatile Matter wt %

-- -- -- -- -- -- -- -- 7 80. 57 81.44 81.14 81.61 (a) Nitrogen wt % 0.02 3.95 0.22 0.46 0.346 13.6 54.0 15.1 7 0.19 0.29 0.23 0.28 (a) Sulfur wt % ND 0.87 ND 0.61 0.070 0.74 61.3 13.6 7 0.01 0.021 0.02 0.022 (a) HHV Btu/lb

-- -- -- -- -- -- -- -- 7 8033 8805 8487 8898 (a)
1 EPA Le tter "Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011. 2Minnesota. Sampling Occurred Between 8/13/2012

– 8/17/2012 3 UPL, or Upper Prediction Limit, based on the type of distribution that best fit the data for th e contaminant. Notes: (a) Data appear Normal at 5% Significance Level

- Used Normal Statistics; (b) Data appear Lognormal at 5% Significance Level

- Used Lognormal Statistics; (c) Data Do Not Follow a Discernable Distribution at 5% Significance Level

- Use d Nonparametric Statistics *

- Only one distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be performed **

- See above discussion of volatile organics from clean wood in comparison to C&D wood form aldehy de (page s 2

- 4 ) HHV

– High Heat Value

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UPL are the total minimum, maximum, average and UPL from individual sampling events, and are not totals across all samples. Thus, for example, t he total maximum value for total metals will represent the maximum summation of values from a single sampling event, and are not the summation of the values from separate sampling events.

### 6 Literary Sources 1 OAQPS Databases 1 Wood and Biomass Wood and Biomass Coal C&D Samples from Washington 2 Compound Un its Min. Max Min. Max Avg. Min. Max Avg. No. Min. Max Avg. 90% UPL 3 Antimony (Sb) ppm ND 26 ND 6.0 0.9 ND 6.9 1.7 10 0.6 16.6 4.47 11.3 (b) Arsenic (As) ppm ND 6.8 ND 298 6.3 ND 174 8.2 10 3.6 26.2 10 .42 19.9 (a) Ber yl lium (Be) ppm

-- -- ND 10 0.3 ND 206 1.9 10 0.03 0.17 0.088 0.2 (a) Cadmium (Cd) ppm ND 3 ND 17 0.6 ND 19 0.6 10 0.18 0.51 0.31 0.4 (a) Chromium (Cr) ppm ND 130 ND 340 5.9 ND 168 13.4 10 5.51 46 16.27 34.6 (b) Cobalt (Co) ppm ND 24 ND 213 6.5 ND 25.2 6.9 10 0.67 1.63 1.16 1.7 (a) Lead (Pb) ppm ND 340 ND 229 4.5 ND 148 8.7 10 3.8 26 10.60 20.1 (b) Manganese (Mn) ppm 7.9 840 ND 15800 302 ND 512 26.2 10 54.6 127 74.66 104.4 (b) Mercury (Hg) ppm ND 0.2 ND 1.1 0.03 ND 3.1 0.09 10 0.019 0 .143 0.06 0.1 (a) Nickel (Ni) ppm ND 540 ND 175 2.8 ND 730 21.5 10 1.26 12.2 3.47 7.0 (b) Selenium (Se) ppm ND 2 ND 9.0 1.1 ND 74.3 3.4 3 0.60 0.6 0.60 * Total Metals + ppm 7.9 1912 ND 17098.1 330.9 ND 2066 .5 92.59 10 76.11 210.52 121.68 178.7 (a) Br omin e ppm

-- -- -- -- -- -- -- -- -- -- -- -- -- Chlorin e ppm ND 2600 ND 5400 259 ND 9080 992 10 179 1960 908.4 1725 (a) Fluorin e ppm ND 300 ND 128 32.4 ND 178 64.0 4 37 47 43.25 ** Total Halogens + ppm ND 2900 ND 5528 291.4 ND 9258 1056 10 179 2007 925.7 1 746 (a) Formaldehyde *** ppm 1.6 27.0

-- -- -- -- -- -- 10 29.0 130.0 61.1 108.4 (b) Moisture wt %

-- -- -- -- -- -- -- -- -- -- -- -- Ash wt %

-- -- -- -- -- -- -- -- -- -- -- -- Volatile Matter wt %

-- -- -- -- -- -- -- -- -- -- -- -- Nitrogen wt % 0.02 3.95 0.22 0.46 0.346 13.6 54.0 15.1 10 0.27 1.26 0.63 1.0 (a) Sulfur wt % ND 0.87 ND 0.61 0.070 0.74 61.3 13.6 10 0.14 0.731 0.49 0.7 (a) HHV Btu/lb

-- -- -- -- -- -- -- -- 10 6820 7900 7271 7986 (a)
1 EPA Letter "Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011. 2Washington. Sampling Occurred Between 3/21/2012

– 4/3/2012 3 UPL, or Upper Prediction Limit, based on the type of distribution that best fit the data for the contaminant. Notes: (a) Data appear Normal at 5% Significance Level

- Used Normal Statistics; (b) Data appear Lognormal at 5% Significance Level

- Used Lognormal Statistics; (c) Data Do Not Follow a Discernable Distribution at 5% Significance Level

- Used Nonparametric Statistics *

- Only on e distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be performed **

- Data set is too small to compute reliable statistics and estimates ***

- See above discussion of volatile organics from clean wood in comparison to C&D wood formaldehyde (pages 2

- 4) HHV

– High Heat Value

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UPL are the total minimum, maximum, average and UPL from individual sampling events, and are not totals across all samples. Thus, for example, the total maximum value for total metals will represent the maximum summation of values from a single sampling event, and are not the summation of the values from separate sampling events.

### 7 Literary Sources 1 OAQPS Databases 1

Wood and Biomass Wood and Biomass Coal C&D Samples from Massachusetts 2 Compound Un its

Min. Max Min. Max Avg. Min. Max Avg. No. Min. Max Avg. 90% UPL 3 Antimony (Sb) ppm ND 26 ND 6.0 0.9 ND 6.9 1.7 5 2 2 2.00 * Arsenic (As) ppm ND 6.8 ND 298 6.3 ND 174 8.2 60 0.94 220 63.72 187.8 (b) Ber yl lium (Be) ppm

-- -- ND 10 0.3 ND 206 1.9 5 0.2 0.2 0.2 * Cadmium (Cd) ppm ND 3 ND 17 0.6 ND 19 0.6 30 0.39 0.41 0.4 0.4 (c) Chromium (Cr) ppm ND 130 ND 340 5.9 ND 168 13.4 60 0.49 240 69.38 179 (c) Cobalt (C o) ppm ND 24 ND 213 6.5 ND 25.2 6.9 5 0.78 0.8 0.79 0.8 (a) Lead (Pb) ppm ND 340 ND 229 4.5 ND 148 8.7 60 2 280 43.75 129 (c) Manganese (Mn) ppm 7.9 840 ND 15800 302 ND 512 26.2 5 31 80 57.8 91 (a) Mercury (Hg) ppm ND 0.2 ND 1.1 0.03 ND 3.1 0.09 60 0.07 0.58 0.1 0.08 (a) Nickel (Ni) ppm ND 540 ND 175 2.8 ND 730 21.5 5 0.98 0.99 0.98 0.99 (a) Selenium (Se) ppm ND 2 ND 9.0 1.1 ND 74.3 3.4 5 0.78 1.0 0.87 1.0 (a) Total Metals + ppm 7.9 1912 ND 17098.1 330.9 ND 2066 .5 92.59 60 8.01 466.4 182.4 460.3 (b) B romin e ppm

-- -- -- -- -- -- -- -- -- -- -- -- -- Chlorin e ppm ND 2600 ND 5400 259 ND 9080 992 20 47 178 104.32 160.6 (a) Fluorin e ppm ND 300 ND 128 32.4 ND 178 64.0 30 10 38 20.21 31.48 (b) Total Halogens + ppm ND 2900 ND 5528 291.4 ND 9258 1056 30 13.3 194.6 89.75 175.2 (c) Formaldehyde ** ppm 1.6 27.0

-- -- -- -- -- -- -- -- -- -- -- Moisture wt %

-- -- -- -- -- -- -- -- 30 9.12 31.9 18.2 25.31 (a) Ash wt %

-- -- -- -- -- -- -- -- 30 0.49 1.5 0.76 1.062 (b) Volatile Matter wt %

-- -- -- -- -- -- -- -- -- -- -- -- -- Nitrogen wt % 0.02 3.95 0.22 0.46 0.346 13.6 54.0 15.1 30 0.08 0.21 0.11 0.16 (c) Sulfur wt % ND 0.87 ND 0.61 0.070 0.74 61.3 13.6 30 0.14 0.19 0.17 0.18 (c) HHV Btu/lb

-- -- -- -- -- -- -- -- 30 5468 7713 6788.8 7483 (a)
1 EPA Letter

"Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011. 2Massachusetts. Sampling Occurred Between 4/2007

– 5/2007 3 UPL, or Upper Prediction Limit, based on the type of distribution that best fit the data for the cont aminant. Notes: (a) Data appear Normal at 5% Significance Level

- Used Normal Statistics; (b) Data appear Lognormal at 5% Significance Level

- Used Lognormal Statistics; (c) Data Do Not Follow a Discernable Distribution at 5% Significance Level

- Used Nonp arametric Statistics *

- Only one distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be performed **

- See above discussion of volatile organics from clean wood in comparison to C&D wood formaldehy de (pages 2

- 4) HHV

– High Heat Value

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UPL are the total minimum, maximum, average and UPL from individual sampling events, and are not totals across all samples. Thus, for example, the total maximum value for total metals will represent the maximum summation of values from a single sampling event, and are not the summation of the values from separate sampling events.

### 8 Literary Sources 1 OAQPS Databases 1

Wood and Biomass Wood and Biomass Coal C&D Samples from New Y ork 2 Compound Un its

Min. Max Min. Max Avg. Min. Max Avg. No. Min. Max Avg. 90% UPL 3 Antimony (Sb) ppm ND 26 ND 6.0 0.9 ND 6.9 1.7

-- -- -- -- -- Arsenic (As) ppm ND 6.8 ND 298 6.3 ND 174 8.2 137 0.10 110.06 11.94 31.64 (b) Ber yl lium (Be) ppm

-- -- ND 10 0.3 ND 206 1.9

-- -- -- -- -- Cadmium (Cd) ppm ND 3 ND 17 0.6 ND 19 0.6 78 0.00 1.77 0.23 0.523 (c) Chromium (Cr) ppm ND 130 ND 340 5.9 ND 168 13.4 139 0.20 127.01 23.47 58.44 (b) Cobalt (Co) ppm ND 24 ND 213 6.5 ND 25.2 6.9

-- -- -- -- -- Lead (Pb) ppm ND 340 ND 229 4.5 ND 148 8.7 139 0.4 261.4 26.23 63.52 (b) Manganese (Mn) ppm 7.9 840 ND 15800 302 ND 512 26.2

-- -- -- -- -- Mercury (Hg) ppm ND 0.2 ND 1.1 0.03 ND 3.1 0.09 61 0.00 5 0. 31 0. 09 0.2 4(c) Nickel (Ni) ppm ND 540 ND 175 2.8 ND 730 21.5

-- -- -- -- -- Selenium (Se) ppm ND 2 ND 9.0 1.1 ND 74.3 3.4

-- -- -- -- -- Total Metals + ppm 7.9 1912 ND 17098 330.9 ND 2066 .5 92.59 139 0.9 4 328 61.6 14 5 (b) Br omin e ppm

-- -- -- -- -- -- -- -- -- -- -- -- -- Chlorin e pp m ND 2600 ND 5400 259 ND 9080 992 138 145 9940 1097.7 1710 (c) Fluorin e ppm ND 300 ND 128 32.4 ND 178 64.0 8 38 659 283.63 584.9 (a) Total Halogens + ppm ND 2900 ND 5528 291.4 ND 9258 1056 138 145 9940 1113 1720 (c) Formaldehyde ** ppm 1.6 27.0

-- -- -- - - -- -- -- -- -- -- -- Moisture wt %

-- -- -- -- -- -- -- -- 140 3.90 38.5 19.68 31.26 (b) Ash wt %

-- -- -- -- -- -- -- -- 140 1.37 20 6.11 10.84 (b) Volatile Matter wt %

-- -- -- -- -- -- -- -- -- -- -- -- -- Nitrogen wt % 0.02 3.95 0.22 0.46 0.346 1 3.6 54.0 15.1

-- -- -- -- -- Sulfur wt % ND 0.87 ND 0.61 0.070 0.74 61.3 13.6 139 0.02 0.288 0.10 0.191 (c) HHV Btu/lb

-- -- -- -- -- -- -- -- 140 6662.7 11699 8408.87 9213 (c)
1 EPA Letter "Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011. 2New York. Sampling Occurred Between 06/2002

– 05/2012. All values reported as Dry Basis. 3 UPL, or Upper Prediction Limit, based on the type of distribution that best fit the data for the contaminant. Notes: (a) Data appear Normal at 5% Significance Level

- Used Normal Statistics; (b) Data appear Lognormal at 5% Significance Level

- Used Lognormal Statistics; (c) Data Do Not Follow a Discernable Distribution at 5% Significance Level

- Used Nonparametric Statistics *

- Only on e distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be performed **

- See above discussion of volatile organics from clean wood in comparison to C&D wood formaldehyde (pages 2

- 4) HHV

– High Heat V alue

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UPL are the total minimum, maximum, average and UPL from individual sampling events, and are not totals across all samples. Thus, for example, the total maximum value for total metal s will represent the maximum summation of values from a single sampling event, and are not the summation of the values from separate sampling events.

### 9 Literary Sources 1 OAQPS Databases 1 Wood and Biomass Wood and B iomass Coal C&D Samples from Maine 2 Compound Un its Min. Max Min. Max Avg. Min. Max Avg. No. Min. Max Avg. 90% UPL 3 Antimony (Sb) ppm ND 26 ND 6.0 0.9 ND 6.9 1.7

-- -- -- -- -- Arsenic (As) ppm ND 6.8 ND 298 6.3 ND 174 8.2 22 1.2 70.0 19.94 53.86 (b) Ber yl lium (Be) ppm

-- -- ND 10 0.3 ND 206 1.9

-- -- -- -- -- Cadmium (Cd) ppm ND 3 ND 17 0.6 ND 19 0.6

-- -- -- -- -- Chromium (Cr) ppm ND 130 ND 340 5.9 ND 168 13.4 15 2.0 311.0 82.13 352.4 (b) Cobalt (Co) ppm ND 24 ND 213 6.5 ND 25.2 6.9

-- -- -- -- -- Lead (Pb) ppm ND 340 ND 229 4.5 ND 148 8.7 35 2.0 451.0 126.8 312.4 (c) Manganese (Mn) ppm 7.9 840 ND 15800 302 ND 512 26.2

-- -- -- -- -- Mercury (Hg) ppm ND 0.2 ND 1.1 0.03 ND 3.1 0.09 14 0.04 0.27 0.14 0.31 (b) Nickel (Ni) ppm ND 540 ND 175 2.8 ND 730 21.5

-- -- -- -- -- Selenium (Se ) ppm ND 2 ND 9.0 1.1 ND 74.3 3.4 15 0.4 1.3 0.76 1.11 (a) Total Metals + ppm 7.9 1912 ND 17098.1 330.9 ND 2066 .5 92.59 35 13.76 597 174.9 426.9 (b) Br omin e ppm

-- -- -- -- -- -- -- -- -- -- -- -- -- Chlorin e ppm ND 2600 ND 5400 259 ND 9080 992

-- -- -- -- -- Fluorin e ppm ND 300 ND 128 32.4 ND 178 64.0

-- -- -- -- -- Total Halogens ppm ND 2900 ND 5528 291.4 ND 9258 1056

-- -- -- -- -- Formaldehyde ** ppm 1.6 27.0

-- -- -- -- -- -- -- -- -- -- -- Moisture wt %

-- -- -- -- -- -- -- -- -- -- -- -- -- Ash wt %

-- -- -- -- -- -- -- -- -- -- -- -- -- Volatile Matter wt %

-- -- -- -- -- -- -- -- -- -- -- -- -- Nitrogen wt % 0.02 3.95 0.22 0.46 0.346 13.6 54.0 15.1

-- -- -- -- -- Sulfur wt % ND 0.87 ND 0.61 0.070 0.74 61.3 13.6

-- -- -- -- -- HHV Btu/lb

-- -- -- -- -- -- -- -- -- -- -- -- -- 1 EPA Letter "Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011. 2Maine. Sampling Occurred Between 2001

– 2008. 3 UPL, or Upper Prediction Limit, based on the type of distribu tion that best fit the data for the contaminant. Notes: (a) Data appear Normal at 5% Significance Level

- Used Normal Statistics; (b) Data appear Lognormal at 5% Significance Level

- Used Lognormal Statistics; (c) Data Do Not Follow a Discernable Distribution at 5% Significance Level

- Used Nonparametric Statistics *

- Only one distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be performed **

- See above discussion of volatile organics from clean w ood in comparison to C&D wood formaldehyde (pages 2

- 4) HHV

– High Heat Value

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UPL are the total minimum, maximum, average and UPL from individual sampling events, and are not totals across all samples. Thus, for example, the total maximum value for total metals will represent the maximum summation of values from a single sampling event, and are not the summation of the values from separate sampling events.

### 10 Literary Source s 1 OAQPS Databases 1

Wood and Biomass Wood and Biomass Coal Compilation of C&D All Datasets 2 Compound Un its

Min. Max Min. Max Avg. Min. Max Avg. No. Min. Max Avg. 90% UPL 3 Antimony (Sb) ppm ND 26 ND 6.0 0.9 ND 6.9 1.7 22 0.17 16.6 2.6 6.942 (b) Arsenic (As) ppm N D 6.8 ND 298 6.3 ND 174 8.2 236 0.10 220 26.12 67.06 (b) Ber yl lium (Be) ppm

-- -- ND 10 0.3 ND 206 1.9 22 0.008 0.2 0.088 0.2 (c) Cadmium (Cd) ppm ND 3 ND 17 0.6 ND 19 0.6 125 0.00 1.773 0.27 0.401 (c) Chromium (Cr) ppm ND 130 ND 340 5.9 ND 168 13.4 231 0.20 311 39.01 99.97 (b) Cobalt (Co) ppm ND 24 ND 213 6.5 ND 25.2 6.9 22 0.38 1.63 0.9 1.527 (b) Lead (Pb) ppm ND 340 ND 229 4.5 ND 148 8.7 251 0.4 451 44.01 103.1 (b) Manganese (Mn) ppm 7.9 840 ND 15800 302 ND 512 26.2 22 31.0 156 65.89 103.6 (b) Mer cury (Hg) ppm ND 0.2 ND 1.1 0.03 ND 3.1 0.09 152 0.00 5 0.58 0. 09 0. 182(c) Nickel (Ni) ppm ND 540 ND 175 2.8 ND 730 21.5 22 0.98 12.2 2.47 4.789 (c) Selenium (Se) ppm ND 2 ND 9.0 1.1 ND 74.3 3.4 30 0.27 1.3 0.65 1.0 (a) Total Metals + ppm 7.9 1912 ND 170 98.1 330.9 ND 2066 .5 92.59 251 0.9 4 597.0 111.0 278.2(b) Br omin e ppm

-- -- -- -- -- -- -- -- 7 6 7 6.14 7 (c) Chlorin e ppm ND 2600 ND 5400 259 ND 9080 992 175 47 9940 993 1640 (c) Fluorin e ppm ND 300 ND 128 32.4 ND 178 64.0 49 5 659 64.58 212.8 (c) To tal Halogens + ppm ND 2900 ND 5528 291.4 ND 9258 1056 184 13.3 9940 889 1 600 (c) Formaldehyde ** ppm 1.6 27.0

-- -- -- -- -- -- 17 9.3 130.0 48.84 107.4 Moisture wt %

-- -- -- -- -- -- -- -- 177 3.9 38.5 19.2 29.7 (b) Ash wt %

-- -- -- -- -- -- -- -- 177 0.49 20 4.99 10.22 (c) Volatile Matter wt %

-- -- -- -- -- -- -- -- 7 80.57 81.44 81.14 81.61 (a) Nitrogen wt % 0.02 3.95 0.22 0.46 0.346 13.6 54.0 15.1 47 0.08 1.26 0.24 0.644 (c) Sulfur wt % ND 0.87 ND 0.61 0.070 0.74 61.3 13.6 186 0.01 0.731 0.13 0.2 02 (c) HHV Btu/lb

-- -- -- -- -- -- -- -- 187 5468 11699 8091 9167 (c)
1 EPA Letter "Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011. 2M innesota. Sampling Occurred Between 8/13/2012

– 8 /17/2012; Washington. Sam pling Occurred Between 3/21/2012

– 4 /3/2012; Massachusetts. Sampling Occurred Between 4/2007

– 5/2007; New York. Sampling Occurred Between 06/2002

– 05/2012; Maine. Sampling Occurred Between 2001

– 2008. 3 UPL, or Upper Prediction Limit, based on the type of distribution that best fit the data for the contaminant. Notes: (a) Data appear Normal at 5% Significance Level

- Used Normal Statistics; (b) Data appear Lognormal at 5% Significance Level

- Used Lognormal Statistics; (c) Data Do Not Follow a Discernabl e Distribution at 5% Significance Level

- Used Nonparametric Statistics *

- Only one distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be performed **

- See above discussion of volatile organics f rom clean wood in comparison to C&D wood formaldehyde (pages 2

- 4) HHV

– High Heat Value

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UPL are the total minimum, maximum, average and UPL from individual sampling events, and are not tot als across all samples. Thus, for example, the total maximum value for total metals will represent the maximum summation of values from a single sampling event, and are not the summation of the values from separate sampling events.

### November 29, 2012

TO: Ms. Susan Parker Bodine, Barnes & Thornburg FROM: Ms. Kerry

Kelly, Waste Management

Re: Summary o f Waste Management C&D wood fuel data
WM selected four C&D Wood production facilit ies to conduct a representative study of C&D Wood processing act ivit ies and the result ing characterist ic s of the wood fuel produced. The selected facilit ies and a descript io n of th e general processing activit ies used to generate C&D Wo od f uel (f uel source) are as fo llo ws:
(W) Wisconsin

F acili ty

– Posi tive Sorting
(CA1) California #1 Facilit y

– Posi tive Sorti ng
(CA2) California #2 Facilit y

– Negat ive Sorting
(MA) Massachuset ts Facilit y

– Negat ive Sorting

Posi tive sorti ng refers to sorting material (e.g., C&D) to extract the desired materials. In a posi tive sort facilit y, m achinery and staff sort the inco ming feedstock to extract the clean, untreated and unpainted wood for processing into a fuel. Negative sorting refers to extracting unwanted components of the feedstock material, such as undesirable wood, inert materials and metal s. The extracted materi al i s ei th er recycled or disposed, while the remaining desirable wood i s processed into fuel..

WM Study Procedures and Results

WM used a testing protocol to ensure, to the highest degree, that a representative set of samples were collected for analysis

. The study protocol requi re d that each plant collect representative dai ly

com posi te samples overthe c our s e of one work week, as well as maintain a detailed descript io n of the inco ming material and processing practices at each facilit y

.. The daily

com posi te samples were shipped to NELAC

- cert ified laboratories where each samp le was ho mo genized to further ensure representative results. This was achieved by f reeze drying and crushing each individual co mposite sample in accordance wit h the laboratory’s detailed standard operating procedure s. In addit io n to the qualit y assurance procedures of the NELAC laboratory
, one sample fro m each facilit y was analyzed in tri plicate to evaluate the repeatabilit y of the laboratory

analysis. The attached

tables provi de a contaminant com parison of the analy

ti cal

### November29, 2012

Page 2

resul ts to EPA’s dataset of trad it io nal wood and biomass fuels. For each analyzed contaminant, WMapplied EPA so ft ware, ProUCL (versio n 4.0), to determine the 90 percent upper predict io n limit and co mpared this value to the maximum value fro m th e EPA database

. 1



### Impact s of Processingon Contaminant Comparisons

The table below displays the average concentration of formaldehyde for each of the facilit ies during the testing period.

Table 1 Average Formaldehyde Concentrations For Each Tested Facility Pollutant W CA1 CA2 MA Formaldehyde [ppm] 58.7 16.9 13.4 56.1 Sorting Posi

tive Posi

tive Negative Negative

These resul

ts indicate that vari at io ns in fo rmaldehyde are not based on the ty pe of sorting conducted at these facilit ies.

Li kewise, t he table below displayingthe average concentrations of arsenic at each facilit y during the testing period

indicates similar results

.

Table 2 Average Arsenic Concentrations For Each Tested Facility Pollutant W CA1 CA2 MA Arsenic ( ppm ) 2.56 4.45 2.39 116. 4
Chro mium ( ppm ) 4.22 9.39 8.02 137.6
Lead ( ppm ) 118.5 71.67 48.20 211.6 Sorting Ty

pe Posi

tive Posi

tive Negative Negative

It should be noted that, even though the MA v alues are significantly higher than the rest of the facilit y’s datasets, MA ’ s 90% upper prediction limit are com parable to the maximum value s reported by

the EPA of

clean wood and bio mass, and thus, still co mparable.

Impact of Incoming Material Variations on Contaminant Comparisons
As previously discussed, the variation o f proce ssing methods at each individual facilit y di d not significant ly contribute to the differences in contamin ant concentrations observed in each facilit y’s f

inished fuel product. Ho wever, the variati on in inco ming materials at each facilit y has a recognizable effect on the final contaminant co ncen trati ons. Some facilit ies receive a much higher percentage of untreated or “clean wood” as a component of their feedstock for processing. Higher percentages of untreated wood may come from, for example, woody bi om as s used to mix

1 Contaminant Concentrations in Traditional Fuels: Tables for Comparison
, November 29, 2011, http://www.epa.gov/osw/nonhaz/define/pdfs/nhsm_cont_tf.pdf

### November29, 2012

Page 3

wi th the C&D wood in the final fuel product, pre

- so rted materials delivered fro m construction si tes, f rom l andfills wit h wood separation programs, or from new construction sites, which tend to have a smaller percentage of unused treated or pa int ed wood. Revisit ing Table 2 above, it is clear that th e MA

Facili ty h ad significant ly higher average arsenic , chromium , and lead concentrations. When reviewing the ty pes of materi als that were processed during the sampling study , i t becomes evident th at th ese contaminant levels are l argely influence d by inco ming materi als to the facilit y

. Table 3 below displays the variation o f inco ming materials seen by CA2 and MA over the week of sampling and the calculated concentration s (see attached tables for de tails).

Table 3 Incoming Materials Comparison Inco ming Material Ty pe CA2 MA
Mixed C&D Materi als 43.7 % 95.5 % C le an Untreated Wood 56.3 % 4.5 % Average A

rsenic (ppm

) 2.39 116.4 Average Chro mium (ppm) 8.02 137.6 Average Lead (ppm) 48.20 211.6 C&D Materials includes standard C&D materials, as well as pallets, construction wood, fencing, decking, etc.


### As seen, CA2 h ad a considerably higher percentage of clean wood in it s incoming materials and a lower mixed C&D po rti on. C&D materials th at have not yet been processed can potenti ally have a significant concentration of copper chromium arsenate ( CCA) treated wood, painted wood, as well as oth er resinated woods which are the primary source s of arsenic, lead and chro mium

. As a result of these varying proportions of clean and resinated wood, CA2 ’s finalized product had a cleaner feedstock to process into a wood fuel. Alt hough the MA Facilit y had a more mixed C&D feedstock to work with during the sampling week, it was nonetheless able to process the material into a resulting wood fuel that had contaminant levelsei ther lower or
com parable to arsenic, chromium and lead concentrations in clean wood and bio mass, as reported by

EPA.

Conclusion

T he WM facilit ies evaluated represent C&D wood processing locations across the U.S. and represent th e various p rocessing p ract ices that are common across the industry

. Thus, the pollutant comparisons fo r each individual facilit y and the comparison fo rthe combined datasets

were conducted to provide assurance that all C&D processing facilit ies are antici pated to pr oduce similar values.

### November29, 2012

Page 4

SUMMARY OF WASTE MANAGEMENT C&D WOOD FUEL STUDY

EPA Data Wood and Biomass 1 Waste Management C&D Wood ( 90% UPL ) 2,3 Compound Units

Max W CA1 CA2 MA All facilities Antimony (Sb) ppm 26 0.46 10 2.1 4.4 8.4 Arsenic (As) ppm 298 4.6 18.1 4.34 225 167 Beryllium (Be) ppm 10 * 0.05 0.05 0.13 0.06 Cadmium (Cd) ppm 17 0.65 0.2 0.36 1.0 0.58 Chromium (Cr) ppm 340 7.0 18.2 11.9 249 182 Cobalt (Co) ppm 213 0.5 2.45 2.0 2.2 2.0 Lea d (Pb) ppm 340 356 173 115 346 295 Manganese (Mn) ppm 15800 58.7 102.4 111 111 109 Mercury (Hg) ppm 1.1 0.26 0.2 0.2 0.55 0.24 Nickel (Ni) ppm 540 2.6 8.8 9.2 21.7 10.3 Selenium (Se) ppm 9.0 * * * * * Total LVM + ppm 172 2 7 64.3 137 137 551 424 Bromine p pm

-- * * * 3.7 3.0 Chlorine p pm 5400 296 2776 1201 2310 1392 Fluorine p pm 300 5 3 136 142 38 119 Total Halogens + p pm 5700 330 2836 1332 2155 1496 Formaldehyde p pm 27.0 115 44.8 19.6 126 82.7 Nitrogen wt % 3.95 0.66 0.51 0.84 0.91 0.7 5 Sulfur wt % 0.87 0.04 0.08 0.13 0.17 0.12

1 EPA Letter "Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011.
2 ( W) Wisconsin. Sampling Occurred Between 7/30/2012

–8 /6/2012, (CA1) California

. Sampling Occurred Between 7/23/2012

– 8 /1/2012, (CA2) California Sampling Occurred Between 7/30/2012

–8/3/2012, (MA) Massachusetts. Sampling Occurred Between 7/30/2012

–8/3/2012
3 UPL, or Upper Prediction Limit, based on the type of distribution that best fit the data for the contaminant. *

-Only one distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be performed LVM

–Lo w Volatile Metals Low Volatile Metals include antimony, arsenic, beryllium, chromium, cobalt, manganese and nickel, as defined in 40 CFR 63.1219( e)(4).

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UPL are the total minimum, maximum, average and UPL from individual

sa mpling events, and are not totals across all samples. Thus, for example, the total maximum value for total metals will represent the maximum

su mma tion of values from a single sampling event, and are not the summation of the values from separate sampling events.Literary Sources 1 OAQPS Databases 1 Wood and Biomass Wood and Biomass C&D Samples from W 2 Compound Units Min. Max Min. Max Avg. Min. Max Avg. 90% UPL 3 Antimony (Sb) ppm ND 26 ND 6.0 0.9 0.15 0.42 0.31 0.46 (a) Arsenic (As) ppm ND 6.8 ND 298 6.3 0.87 4.67 2.56 4.62 (a) Beryllium (Be) ppm

-- -- ND 10 0.3 0.008 0.008 0.008 * Cadmium (Cd) ppm ND 3 ND 17 0.6 0.19 0.72 0.34 0.646 (b) Chromium (Cr) ppm ND 130 ND 340 5.9 1.75 7.55 4.22 6.97 (a) Cobalt (Co) ppm ND 24 ND 213 6.5 0.15 0.45 0.3 0.5 (a) Lea d (Pb) ppm ND 340 ND 229 4.5 25.4 394.0 118.53 356 (b) Manganese (Mn) ppm 7.9 840 ND 15800 302 42.3 58.7 50.71 58.7 (a) Mercury (Hg) ppm ND 0.2 ND 1.1 0.03 0.042 0.313 0.12 0.259 (b) Nickel (Ni) ppm ND 540 ND 175 2.8 0.37 2.6 0.79 2.6 (c) Selenium (Se) ppm ND 2 ND 9.0 1.1 0.27 0.27 0.27 * Total LVM + ppm 7.9 1567 ND 16842 324.7 49.5 67.5 58.9 64.3 (a) Bromine ppm

-- -- -- -- -- 3 3 3 * Chlorine ppm ND 2600 ND 5400 259 163 315 205.43 295.8 (b) Fluorine ppm ND 300 ND 128 32.4 11 53 17.43 53 (c) Total Halogens + ppm ND 2900 ND 5528 291.4 177 330 225.9 330 (c) Formaldehyde ppm 1.6 27.0

-- -- -- 20.0 130.0 58.7 114.7 (a) Moisture wt %

-- -- -- -- -- 17.00 24.13 20.33 23.78 (a) As h wt %

-- -- -- -- -- 0.63 1.04 0.85 1.084 (a) Volatile Matter wt %

-- -- -- -- -- 79.63 80.36 80.09 80.51 (a) Nitrogen wt % 0.02 3.95 0.22 0.46 0.346 0.33 0.76 0.43 0.66 (a) Sulfur wt % ND 0.87 ND 0.61 0.070 0.01 0.042 0.02 0.043 (a) HHV Btu/lb

-- -- -- -- -- 7461 8709 8389 9052 (a)

1 EPA Letter "Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011.
2 Sampling Occurred Between 7/30/2012

–8/6/2012
3 UPL, or Upper Prediction Limit, based on the type of distribution that best fit the data for the contaminant. Notes: (a) Data appear Normal at 5% Significance Level

- U sed Normal Statistics; (b) Data appear Lognormal at 5% Significance Level

- U sed Lognorma l Statistics; (c) Data Do Not Follow a Discernable Distribution at 5% Significance Level

- Used Nonparametric Statistics *

-Only one distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be performed HHV

–High Heat Value LVM

–Low Volatile Metals Low Volatile Metals include antimony, arsenic, beryllium, chromium, cobalt, manganese and nickel, as defined in 40 CFR 63.1219(e)(4).

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UPL are the total minimum, maximum, average and UPL from individual sampling events, and are not totals across all

sa mples. Thus, for example, the total maximum value for total metals will represent the maximum summation of values from a single sampling event, and are not the summation of the values from separate sampling events.Literary Sources 1 OAQPS Databases 1 Wood and Biomass Wood and Biomass C&D Samples from CA 1 2 Compound Units Min. Max Min. Max Avg. Min. Max Avg. 90% UPL 3 Antimony (Sb) ppm ND 26 ND 6.0 0.9 0.24 10 4.15 10 (c) Arsenic (As) ppm ND 6.8 ND 298 6.3 1.07 18.1 4.45 18.1 (c) Beryllium (Be) ppm

-- -- ND 10 0.3 0.04 0.05 0.047 0.05 (c) Cadmium (Cd) ppm ND 3 ND 17 0.6 0.15 0.23 0.19 0.2 (a) Chromium (Cr) ppm ND 130 ND 340 5.9 3.74 20.7 9.39 18.2 (a) Cobalt (Co) ppm ND 24 ND 213 6.5 0.49 2.45 1.10 2.45 (c) Lea d (Pb) ppm ND 340 ND 229 4.5 13.9 208 71.67 173.1 (a) Manganese (Mn) ppm 7.9 840 ND 15800 302 49.2 114 68.44 102.4 (a) Mercury (Hg) ppm ND 0.2 ND 1.1 0.03 0.017 0.205 0.08 0.2 (a) Nickel (Ni) ppm ND 540 ND 175 2.8 2.28 10.1 4.83 8.8 (a) Selenium (Se) ppm ND 2 ND 9.0 1.1 0.27 0.27 0.27 * Total LVM + ppm 7.9 1567 ND 16842 324.7 63.0 149 92.4 137 (a) Br omine ppm

-- -- -- -- -- 3 3 3 * Chlorine ppm ND 2600 ND 5400 259 295 2776 768 2776 (c) Fluorine ppm ND 300 ND 128 32.4 57 119 96.86 136 (a) Total Halogens + ppm ND 2900 ND 5528 291.4 366 2836 868 2836 (c) Formaldehyde ppm 1.6 27.0

-- -- -- 3.4 50.0 16.9 44.8 (b) Moisture wt %

-- -- -- -- -- 16.85 28.86 21.11 28.86 (c) As h wt %

-- -- -- -- -- 1.26 5.4 3.89 6.31 (a) Volatile Matter wt %

-- -- -- -- -- 75.98 80.31 77.39 79.88 (a) Nitrogen wt % 0.02 3.95 0.22 0.46 0.346 0.19 0.49 0.36 0.51 (a) Sulfur wt % ND 0.87 ND 0.61 0.070 0.03 0.071 0.06 0.08 (a) HHV Btu/lb

-- -- -- -- -- 7741 8543 8264 8743 (a)

1 EPA Letter "Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011.
2 Sampling Occurred Between 7/23/2012

–8/1/2012
3 UPL, or Upper Prediction Limit, based on the type of distribution that best fit the data for the contaminant. Notes: (a) Data appear Normal at 5% Significance Level

- U sed Normal Statistics; (b) Data app ear Lognormal at 5% Significance Level

- U sed Lognormal Statistics; (c) Data Do Not Follow a Discernable Distribution at 5% Significance Level

- Used Nonparametric Statistics *

-Only one distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be performed HHV

–High Heat Value LVM

–Low Volatile Metals Low Volatile Metals include antimony, arsenic, beryllium, chromium, cobalt, manganese and nickel, as defined in 40 CFR 63.1219(e)(4).

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UPL are the total minimum, maximum, average and UPL from individual sampling events, and are not totals across all

sa mples. Thus, for example, the total maximum value for total metals will represent the maximum summation of values from a single sampling event, and are not the summation of the values from separate sampling events.Literary Sources 1 OAQPS Databases 1 Wood and Biomass Wood and Biomass C&D Samples from CA2 2 Compound Units Min. Max Min. Max Avg. Min. Max Avg. 90% UPL 3 Antimony (Sb) ppm ND 26 ND 6.0 0.9 0.19 2.28 0.86 2.094 (a) Arsenic (As) ppm ND 6.8 ND 298 6.3 1.03 4.18 2.39 4.341 (a) Beryllium (Be) ppm

-- -- ND 10 0.3 0.04 0.05 0.049 0.05 (c) Cadmium (Cd) ppm ND 3 ND 17 0.6 0.13 0.38 0.21 0.358 (a) Chromium (Cr) ppm ND 130 ND 340 5.9 4.02 10.2 8.02 11.9 (a) Cobalt (Co) ppm ND 24 ND 213 6.5 0.80 1.88 1.36 2.0 (a) Lea d (Pb) ppm ND 340 ND 229 4.5 8.9 118 48.20 115.3 (a) Manganese (Mn) ppm 7.9 840 ND 15800 302 50.4 108 75.90 111.4 (a) Mercury (Hg) ppm ND 0.2 ND 1.1 0.03 0.023 0.164 0.11 0.2 (a) Nickel (Ni) ppm ND 540 ND 175 2.8 2.99 9.13 5.74 9.2 (a) Selenium (Se) ppm ND 2 ND 9.0 1.1 0.27 0.27 0.27 * Total LVM + ppm 7.9 1567 ND 16842 324.7 61.6 132 94.3 137 (a) Bromine ppm

-- -- -- -- -- 3 3 3 * Chlorine ppm ND 2600 ND 5400 259 549 1060 890.71 1201 (a) Fluorine ppm ND 300 ND 128 32.4 38 124 85 142 (a) Total Halogens + ppm ND 2900 ND 5528 291.4 590 1187 97 9 1332 (a) Formaldehyde ppm 1.6 27.0

-- -- -- 8.8 20.0 13.4 19.6 (a) Moisture wt %

-- -- -- -- -- 14.70 31.45 21.91 33.29 (a) As h wt %

-- -- -- -- -- 3.34 11.54 5.85 10.02 (a) Volatile Matter wt %

-- -- -- -- -- 70.49 78.41 75.33 79.45 (a) Nitrogen wt % 0.02 3.95 0.22 0.46 0.346 0.38 0.78 0.62 0.84 (a) Sulfur wt % ND 0.87 ND 0.61 0.070 0.05 0.142 0.09 0.13 (a) HHV Btu/lb

-- -- -- -- -- 8019 8435 8241 8470 (a)

1 EPA Letter "Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011.
2 Sampling Occurred Between 7/30/2012

–8/3/2012
3 UPL, or Upper Prediction Limit, based on the type of distribution that best fit the data for the contaminant. Notes: (a) Data appear Normal at 5% Significance Level

- U sed Normal Statistics; (b) Data appear Lognormal at 5% Significance Level

- U sed Lognor mal Statistics; (c) Data Do Not Follow a Discernable Distribution at 5% Significance Level

- Used Nonparametric Statistics *

-Only one distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be perform ed HHV

–High Heat Value LVM

–Low Volatile Metals Low Volatile Metals include antimony, arsenic, beryllium, chromium, cobalt, manganese and nickel, as defined in 40 CFR 63.1219(e)(4).

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UP L are the total minimum, maximum, average and UPL from individual sampling events, and are not totals across all

sa mples. Thus, for example, the total maximum value for total metals will represent the maximum summation of values from a single sampling event, and are not the summation of the values from separate sampling events.Literary Sources 1 OAQPS Databases 1 Wood and Biomass Wood and Biomass C&D Samples from MA 2 Compound Units Min. Max Min. Max Avg. Min. Max Avg. 90% UPL 3 Antimony (Sb) ppm ND 26 ND 6.0 0.9 0.71 3.85 2.64 4.4 (a) Arsenic (As) ppm ND 6.8 ND 298 6.3 7.17 178 116. 4 224.6 (a) Beryllium (Be) ppm

-- -- ND 10 0.3 0.04 0.13 0.067 0.13 (c) Cadmium (Cd) ppm ND 3 ND 17 0.6 0.27 1.04 0.55 1.0 (a) Chromium (Cr) ppm ND 130 ND 340 5.9 12.3 208 137.6 248.6 (a) Cobalt (Co) ppm ND 24 ND 213 6.5 0.52 2.8 1.07 2.16 (b) Lea d (Pb) ppm ND 340 ND 229 4.5 142 346 211. 6 346 (c) Manganese (Mn) ppm 7.9 840 ND 15800 302 47.3 124 74.11 110.5 (b) Mercury (Hg) ppm ND 0.2 ND 1.1 0.03 0.046 0.546 0.15 0.546 (c) Nickel (Ni) ppm ND 540 ND 175 2.8 1.24 21.7 4.64 21.7 (c) Selenium (Se) ppm ND 2 ND 9.0 1.1 0.27 0.27 0.27 * Total LVM + ppm 7.9 1567 ND 16842 324.7 69.3 450 337 551 (a) Bromine ppm

-- -- -- -- -- 3 4 3 3.73(a) Chlorine ppm ND 2600 ND 5400 259 94 1290 661.71 2310 (b) Fluorine ppm ND 300 ND 128 32.4 3 38 12.57 38 (c) Total Halogens + ppm ND 2900 ND 5528 291.4 135 1296 667 2155 (b) Formaldehyde ppm 1.6 27.0

-- -- -- 11.0 150.0 56.1 126.4 (a) Moisture wt %

-- -- -- -- -- 15.16 20.78 18.18 20.9(a) As h wt %

-- -- -- -- -- 0.81 6.79 3.25 7.061(a) Volatile Matter wt %

-- -- -- -- -- 77.47 82.53 79.53 82.58(a) Nitrogen wt % 0.02 3.95 0.22 0.46 0.346 0.23 0.87 0.52 0.91(a) Sulfur wt % ND 0.87 ND 0.61 0.070 0.01 0.162 0.09 0.17(a) HHV Btu/lb

-- -- -- -- -- 8157 8622 8397 8638(a)

1 EPA Letter "Contaminant Concentrations in Traditional Fuels: Tables for Comparison." November 29, 2011.
2 Sampling Occurred Between 7/30/2012

–8/3/2012
3 UPL, or Upper Prediction Limit, based on the type of distribution that best fit the data for the contaminant. Notes: (a) Data appear Normal at 5% Significance Level

- U sed Normal Statistics; (b) Data appear Lognormal at 5% Significance Level

- U sed Lognormal Statis tics; (c) Data Do Not Follow a Discernable Distribution at 5% Significance Level

- Used Nonparametric Statistics *

-Only one distinct observation value in the data set, resulting in "0" variance. Therefore, no statistical analysis can be performed HHV

–H igh Heat Value LVM

–Low Volatile Metals Low Volatile Metals include antimony, arsenic, beryllium, chromium, cobalt, manganese and nickel, as defined in 40 CFR 63.1219(e)(4).

+ For C&D samples: Total Min., Total Max, Total Avg., and Total 90% UPL are the total minimum, maximum, average and UPL from individual sampling events, and are not totals across all samples. Thus, for example, the total maximum value for total metals will represent the maximum su mmation of values from a single sa mpling event, and are not the su mmation of the values from separate

sa mpling events.From: "Noe, Paul" <Paul_Noe@afandpa.org> To: undisclosed-recipients:; Cc: Suzanne Rudzinski/DC/USEPA/US@EPA Date: 12/07/2012 10:04 AM Subject: Rail Tie Petition and Comfort Letter Request Sent by: "Missimer, Katie" <Katie_Missimer@afandpa.org>

December 6, 2012

Mathy,

It was very good to talk with you both Tuesday and Wednesday about the critical issues of listing additional biomass residuals as non

‐ waste fuels under section 241.4. As we promised, here is additional information on railroad ties (a narrative of sorts) in the form of a draft petition and request for a comfort letter. We make clear the focus is creosote or creosote

‐ borate treated rail ties. If you cannot is

sue a proposed rule simultaneously with the final NHSM rule, the comfort letter, along with strong language in the preamble, could signal the Agency’s sense that this material meets the criteria in the regulation and would reduce business uncertainty allowing the continued use of this important fuel.

We are continuing to pull further information together on Paper Recycling Residuals and are confident

we can address any outstanding questions. For example, we have already heard from half dozen members who burn several tens of thousands of tons per year for energy recovery that it would cost millions of dollars to replace with alternative fuels including coal. In addition, when dewatered, PRR can sustain combustion on its own although it is always mixed with other fuels before entering the combustion zone. Finally, many of our boilers generate electricity for internal and external use. We believe you already have extensive information on PRR, their generation and use from comments and supplemental materials provided.

If you or any of your staff have any questions, please follow

‐ up with me or Tim Hunt on my staff.

Sincerely,

Paul

Paul Noe Vice President for Public PolicyAMERICAN FOREST & PAPER ASSOCIATION 1111 19th Street, NW, Suite 800, Washington, D.C. 20036 Paul_Noe@afandpa.org 202-463-2777 (phone) 202-463-2772 (fax) www.afandpa.org

image002.jpg Rail Tie Petition and Comfort Letter Request.pdf

### Administrator Jackson December 6, 2012 Page 2

mission includes advancing the interests of it s member companies in regulatory and judicial arenas. AF&PA members currently us e a variety of secondary materials as fuel in combustion units at their facilities. At approximately 12 mills, these secondary materials include railroad ties that are treat ed with creosote. 1 

### A major supplier of railroad ties to the forest products industry estimates that in 2005, approximately 550,000 tons of railroad ties were sold to forest products mills for use as fuel. In 2010, more than 300,000 tons were bur ned at forest product mills and more mills are actively considering its use so they remain an impo rtant source of fuel for AF&PA members. We estimate that it would cost the 12 mill s that combust railroad ties around $50 million a year to replace the fuel value of the railroad ties.

AWC is the voice of North American traditional and engi neered wood products, representing over 60% of the industry. Fr om a renewable resource that absorbs and sequesters carbon, the wood products industry makes products that are essential to everyday life and employs 360,000 men and wo men in well-paying jobs. AWC's engineers, technologists, scientists, and build ing code experts develop state-of-the-art engineering data, technology, and standards on structural wood products for use by design professionals, building officials, and w ood products manufacturers to assure the safe and efficient design and use of wood stru ctural components. AWC also provides technical, legal, and economic informati on on wood design, green building, and manufacturing environmental regulations advocating for balanced government policies that sustain the wood products industry. Th e types of biomass boilers AWC members operate could burn railroad ties and some com panies are considering their use in the near future.

3. Proposed Action.
Please add the following langu age to 40 C.F.R. 241.4(a):
“(3) Railroad ties treated with creos ote or creosote and borate.”

4. Need and Justificati on for Proposed Action.
The proposed action is needed to correct an erroneous conclusion reached in the March 2011 final NHSM Rule that combustion ofrailroad ties is combustion of a waste and to allow continued combustion of this fuel by any facility, irrespective of how railroad ties are processed or what feed mechanism is attached to a boiler that combusts railroad ties.

1 Newer railroad ties may also be treated with borate before the creosote is applied. See comment submitted by the Association of American Rail roads, Document ID: EPA- HQ-RCRA-2008- 0329-1920, Feb. 21, 2012, at 2-3 (AAR 2012 comments).

### Administrator Jackson December 6, 2012 Page 3

a. Railroad tie markets
In the preamble to the final NHSM Rule, EPA asserted that:
[F]ew markets are available for creosot e-treated wood due to concerns about the contaminants. This strongly suggests that burning this material is a waste treatment activity. 76 Fed. Reg. 15456, 15483 (Mar. 21, 2011).
Contrary to EPA’s belief, ther e is a robust market for creos ote-treated wood, specifically railroad ties that have been removed from serv ice. As noted above, 12 forest products industry mills purchased approximately 550,000 t ons of railroad ties a year for use as fuel in 2005 and over 300,000 tons as recently as 2010.
According to the Association of Americ an Railroads, approximately 17 million railroad ties are removed from service each year. 2 

### Railroads typically co ntract with a railroad tie reclamation company to remove these ties. These contracts transfer ownership of the railroad ties to the reclamation company. 3 

### The reclamation com pany sorts the railroad ties for use in landscaping (about one third) and for use in co-generation facilities (the majority). According to the Association of American Railroads, only approximately 5% of railroad ties that are removed from service are disposed of in landfills. 4 

### Some reclamation companies sell railr oad ties to processors who remove metal contaminants (typically nails and spikes) and grind the ties into chipped wood. 5 

### Other reclamation companies have their own grinders, do thei r own contaminant removal, and can sell directly to the co-generation facilities. According to a 10-K filed by Banyan Rail Services, Inc., there are approximately 15 railroad tie recovery companies in North America with an industry-wide revenue of $65-75 million. AF&PA members report paying approximately $20 to $30 per ton for railroad tie fuel which is sometimes a premium price compared to cert ain hog fuels.

The fact that railroad ties are valuable co mmodities also is demonstrated by the management of these materials. Sale of railroad ties is in tegral to the contracts for railroad tie removal and is integral to the bus iness of railroad tie reclamation companies. These ties are valuable commodities and are treated as such. Combustors, such as AF&PA member companies, also manage these materials as valuable commodities. At

2 Comment submitted by the Association of Am erican Railroads, Document ID: EPA-HQ-RCRA-2008- 0329-0875, Aug. 3, 2010, at 2 (AAR 2010 comments). 3 This arrangement, which takes into account the value of the removed ties, allows removal of railroad ties to be “close to a break-even proposition fo r the railroad.” AAR 2010 comments at 3. 4 AAR 2012 comments, at 1. This disposal decision is made after the railroad ties are sorted so the ties that are used for energy recovery are never discarded. 5 There may be some combustors that can combust w hole railroad ties, but forest products industry boilers require chipped ties that have been pr ocessed to remove metal contaminants.

### Administrator Jackson December 6, 2012 Page 4

a mill, the chipped railroad ties are managed in the same manner as other biomass fuel materials and are fed to the combus tion unit in the same way.
It is clear from the above description that there are robust markets for railroad ties and there are companies that exist entirely to se rve those markets. It also is clear that combustors pay for the railroad ties that theyuse as fuel. These facts demonstrate that railroad ties are valuable fuel commodities. T hus, there is no basis for EPA’s conclusion that burning railroad ties is a waste treatment activity.
b. Legitimacy criteria as applied to railroad ties.
Railroad ties easily meet all of the legiti macy criteria under 40 C. F.R. 241.3(d), except possibly the contaminant comparison criter ion depending on what tr aditional fuels are considered in comparison. However, upon eval uating all the relevant factors relating to the use of railroad ties as a commodity fuel , EPA should conclude that railroad ties are non-waste fuels for all boilers, notwithstandi ng a contaminant comparison to wood or coal.
i. Railroad ties are managed as a valuable commodity. 40 C.F.R. 241.3(d)(1)(i).

As described above, railroad ties are removed from service for railroads by companies whose business model is based on the reclamati on value of the railro ad ties. These ties are the commodities that railroad tie reclamat ion companies sell in the marketplace. Thus, these companies manage railroad ties to retain their va lue as commodities. Typically reclamation companies receive railroad ties by rail. They inspect and sort the ties and remove metal of any kind (spikes, if any, nails, tags, etc). The resulting railroad tie fuel (RTF) is then chipped and delivered to combustors, typically by rail or truck. 6 

### At a forest products facility, RTF is stock piled in the wood yard in the same manner as bark fuel obtained from processi ng log feedstock for the pulping process. This generally amounts to a pile adjacent to the bark pile that is recl aimed via a front-end loader. Many hog fuel/RTF systems hammer and screen the combined bark/RTF one more time on route to combustion. Chip size typi cally is on the order of 1 to 2 inches. The contracts for the purchase of RTF include fuel specifications limit ing contaminants such as metal and precluding the receipt of wood treated with preservatives other than creosote.
ii. Railroad ties have meaningful heating value and are used as a fuel to generate energy. 40 C.F.R. 241.3(d)(1)(ii).

6 We are aware of one situation where the combustion facility is close to the reclamation facility and RTF is transported on a conveyor.

### Administrator Jackson December 6, 2012 Page 5

EPA reports that creosote-tr eated wood has a heating value of about 6000 Btu/lb. 7 

### The Treated Wood Council reports that the Btu value of creosote-treated wood is approximately 8000 Btu/lb. 8 

### Either level demonstrates meani ngful heating value. These fuels are used to generate energy at AF&PA me mber facilities as well as other cogeneration facilities that buy ra ilroad ties from reclamation companies. In fact, when bark is very wet, forest products facilities often increase the use of RTF in proportion to bark because it has higher fuel value and improves combustion.
iii. Railroad ties contain contaminants that are comparable to or lower than those found in tradit ional fuels that boilers are designed to burn. 40 C. F.R. 241.3(d)(1)(iii).
In the NHSM final rule preamble, EPA expr essed the concern t hat creosote-treated wood contains contaminants at levels that ar e not comparable to those found in coal or wood. “Accordingly, creosote treated w ood, when burned, seem s more like a waste than a commodity and does not meet the legitimacy criterion for contaminants and therefore should be consider ed a waste when burned as a f uel.” 76 Fed. Reg. at 15483.
This analysis is based in part on an assumption that railroad ties are combusted for disposal and are not valuable fuel commoditi es. This assumption is contradicted by the above discussion of the robust markets for RTF. Thus, the only remaining basis for this analysis is the comparison of contaminants in railroad ties to contaminants in coal or fuel.
EPA has data provided by the Association ofAmerican Railroads t hat demonstrates that creosote treated railroad ties cont ain contaminant levels that are comparable to fuel oils, which are traditional fuels. 9 

### Under 40 C.F.R. 241.3, creoso te-treated railroad ties would be considered a non-waste fuel if combusted in a unit that also could combust numbers 1-6 fuel oils.

EPA also has data that demonstrate that cont aminants in borate preservatives are at levels that are significantly bel ow levels found in untreated wood. 10 

### Accordingly, EPA

7 Materials Characterization Paper In Support of the Final Rulemaking: Identification of Nonhazardous Secondary Materials That Are Solid Waste - Construction and Demolition Materials – Building-Related C&D Materials, Feb 3, 2011, EPA-HQ-RCRA-2 008-0329-1811, at 3. 8 Comment submitted by Jeffrey T. Miller, President and Executiv e Director, Treated Wood Council (TWC), EPA-HQ-RCRA-20 08-0329-0772, at 11. 9 EPA’s traditional fuels data show that fuel oils have PAH levels as high as 54,700 ppm. Contaminant Concentrations in Traditional F uels: Tables for Comparison, No vember 29, 2011 (EPA-HQ-RCRA-2008- 0329-1877). The American Association of Railroads data for creosote-treated railroad ties show total PAH levels of 21,237 ppm. 10 See comment submitted by KRK Consul ting. EPA-HQ-RCRA-2 008-0329-1569.

### Administrator Jackson December 6, 2012 Page 6

has already concluded that borate treated wood “meets the l egitimacy criterion on the level of contaminants and comparability to tradition al fuels.” 76 Fed. R eg. at 15484.

iv. Other relevant criteria
An overall balancing of the legitimacy criter ia with other relevant factors should lead EPA to the conclusion that the combustion ofrailroad ties is not a waste management activity and that railroad ties should be consid ered a commodity fuel even if contaminant levels are not comparable to coal or virg in wood. If EPA does not do so, then the same railroad tie from the same recl amation company could be considered a fuel if sold to a combustor that has a liquid fuel delivery syst em for its boiler and a waste if sold to a combustor has only a system for feeding solid fuel to its boiler. Given the overall management of these materials as valuabl e fuel commodities by market-place participants, in this case the fuel de livery system does not provide a meaningful distinction and is not an appropria te method of distinguishing between wastes and fuels.
In balancing the legitimacy criteria, EPA should gi ve great weight to the fact that railroad ties are commodities that are bought and sold in the market-place. This fact alone should be dispositive support for an EPA dete rmination that the combustors who buy this fuel are burning it for legitimate energyrecovery and are not burning it with the intent to discard it. As EPA knows, the legi timacy criteria are fact ors used to ascertain the intent of a combustor to det ermine if discard is taking plac e. In the case of railroad ties, the fact that co mbustors buy this fuel is evidenc e that their intent is energy recovery. Combustors do not buy material for the purpose of discarding it.

EPA also should balance the environmental benefits of allowing continued combustion of railroad ties as fuel against the adverse consequences of increased disposal of railroad ties in landfills. As noted in co mments filed by the Am erican Association of Railroads, the use of railroad ties as fuels displaces fossil fuels that emit greenhouse gases that, unlike wood, are not currently part ofthe carbon cycle. Thus, if 9 million ties are disposed of in landfills instead of being used as fuels, 12.9 trillion Btus will have to be replaced with other fuels. If replaced with fossil f uels, “the GHG penalty will be approximately 3.3 billion CO2eq.” 11 

### The disposal of greenhouse gas in landfills also could result in the anaerobic degradation of the ties over long periods of time, producing methane, which is a pot ent greenhouse gas.
In balancing environmental benefits, EPA shoul d consider the solid waste management benefits of using railroad ties as fuel, instead of discarding t hem in landfills. According to the Association of American Railroads, t he landfill space that would be required to dispose of the 17 million railroad ties that are used as fuel each year would be the

11 AAR 2010 comments, at 3.

### Administrator Jackson December 6, 2012 Page 7

space equivalent to a football fi eld that is 70 stories high. That landfill capacity would be needed each year. 12



### EPA also should consider the fact that, for th e facilities that use railroad ties as fuel, those ties are as integral to the production proc ess as any other fuel used by the facility. Further, railroad ties are functionally superior to other biomass fuels used in the boilers due to lower moisture content and higher BTU value compared with other biomass fuels. Use of railroad tie fuel is particularly important for industry boilers that are load following boilers where significant swings in steam demand require rapid ramping up and down of the boiler, and where the superior f uel characteristics of railroad tie fuel, as noted above, delivers, dry, consistent, hi gh-BTU combustion benefits. Railroad ties improve mixed biomass combustion by provid ing a more even energy source especially during rainy seasons of the year.
Finally, EPA should embrace the combustion of railroad ties as a practice that supports EPA’s sustainability objective s. In June 2009, EPA issued its “2020 Vision Report: Sustainable Materials Management: The R oad Ahead.” The “2020 Vision Report” includes the follo wing statement:
In a system that recognizes the true value of materials, and accounts for all the environmental impacts associated with mate rials use, the concept of waste is significantly changed. Products and material s presently viewed as acceptable to throw away will increasingly be recognized as valuable. Materials that used to “go to waste” will be reused or bec ome feedstocks for new products and processes. 2020 Vision Report, at 13

Consistent with that vision and a consistent history of use, EPA should recognize the value of railroad ties and allow their contin ued use as a fuel. To do otherwise would compel the disposal of this valuable fuel in l andfills. That resu lt undermines EPA’s sustainable materials managem ent objectives, reduces the ability of the U.S. to decrease the use of fossil f uels, and increases the pressu re on solid waste landfill capacity. To avoid these adverse environm ental outcomes, EPA should recognize that railroad ties are a valuable fuel and not a wa ste, when combusted for energy recovery.
These considerations provide ample support for a rulemaking to designate all railroad ties as a non-waste fuel in all combustion units.

12 AAR 2010 comments, at 2.

### Administrator Jackson December 6, 2012 Page 8

Request for a letter confirming that proce ssed railroad ties combusted in boilers combust or could be modified to combust liquid fuel are non-waste fuels.

Pending a national rulemaking to designate railroad ties as a non-waste fuel, AF&PA is requesting a letter from EPA that confirms that railroad ties that are processed and are combusted in units that combust or could be modified to combust liquid fuel are nonwaste fuels under 40 C.F.R. 241.3(b)(4). 13 

### 40 C.F.R. 241.3(b)(4) provides that the following are not solid wastes when combusted: “Fuel or ingredi ent products that are used in a combustion unit, and are produced from the pr ocessing of discarded nonhazardous secondary materials and that meet the legitimacy criteria specified in paragraph (d)(1) of this section with respect to fuels....” While we do not believe that railroad ties used for energy recovery are discarded, absent listing under 40 C.F.R. 241.4, EPA’s regulations consid er these materials to be wastes when combusted by third parties, unless the criteria of 40 C.F. R. 241.3(b)(4) are met. Section 241.3(b)(4) requires that a fuel be both processed and meet the legitimacy criteria.
1. Most railroad ties are processed
According to EPA’s regulations:
Processing means any operations t hat transform discarded non-hazardous secondary material into a non-waste fuel or non-waste ingredient product. Processing includes, but is not limited to , operations necessary to: Remove or destroy contaminants; signi ficantly improve the fuel characteristics of the material, e.g., sizing or drying the material in combination with other operations; chemically improve the as -fired energy content; or improve the ingredient characteristics. Minimal operations that re sult only in modifying the size of the material by shredding do not constitute processing for the purposes of this definition.

40 C.F.R. 241.2.
While some combustors may be able to co mbust whole railroad ties, it is a common practice for railroad tire reclamation companie s to process ties for use by combustors. Processing involves sorting by quality for other potential uses (e.g., landscaping) and by preservative type to meet fuel contract spec ifications required by individual combustors. Process also involves both the removal of metal contaminants and shredding RTF to an

13 This request should not be viewed as an alternat ive to the request for listing under 40 C.F.R. 241.4. Rather, it should be viewed as a stop-gap measure to allow facilities to plan pending such listing.

### Administrator Jackson December 6, 2012 Page 9

appropriate size for the combustor. In fac t, contracts for RTF typically specify fuel requirements such as size of material, moisture limits, and dirt and metal contamination limits. Please confirm that railroad ties th at are processed in this manner meet EPA’s processing definition.
2. Railroad ties meet the legitimacy crit eria when combusted in most boilers.

As discussed above, railroad ties meet EPA’s legitimacy criteria relating to management practices, meaningful heating val ue, and use as a fuel, irrespec tive of the type of boiler that is used for combustion. However, und er EPA’s regulations, railroad ties would not meet the contaminant legitima cy criterion (as EPA has laid it out) unless the RTF can be compared to fuel oils. Even under this framework, RTF would meet the legitimacy criteria because boilers c apable of firing RTF also are capable of firing fuel oil. In fact most boilers are designed in a manner t hat fuel oil firing can be accommodated. 14 

### For example, one forest products company has at le ast 12 boilers that burn RTF. All 12 of these boilers either currently combust fuel oil, or could be readied to combust fuel oil. Please confirm that a boiler t hat has sufficient combustion conditions for oil (with or without the addition of additiona l equipment) and that could be modified to add a liquid fuel delivery system, is “des igned to burn” fuel oil, w hether or not such boiler modifications are actually made.
3. Demonstration by combustors that the legitimacy criteria and processing requirements are met.

Both the CISWI and the Boiler MACT rules require a combustor that combusts nonhazardous secondary materials to keep reco rds showing that t he fuel meets the legitimacy criteria of Part 241. See 40 C.F.R. 60.2740 (u) (C ISIWI) and 40 C.F.R. 60.7555(d)(2) (Boiler MACT).

We believe that individual combustors can meet their obligations under the CISWI and Boiler MACT Rules to show that railroad ti es are not solid wastes by keeping the following records:
a. A copy of an EPA letter confirming t hat railroad ties that are processed and combusted in boilers with liquid fuel delivery systems are not wastes.
b. A copy of a contract, purchase order, or other document that requires a supplier of railroad ties to process the railroad ties consistent with the practices described in this letter or a certification from the supplier that the practices described in this letter were followed.

14 This is uniformly true of stoker bo ilers and fluidized bed combustors.

### Administrator Jackson December 6, 2012 Page 10

Allowing combustors to rely on these records to demonstrate that railroad ties are not wastes is consistent with how EPA proposes to implement its non-waste determination for tires from established tire collection progr ams. Units that combust tires are allowed to rely on certifications that the tires t hat are combusted are fr om established tire collection programs and were not discar ded. 40 C.F.R. 60.2740( v). EPA recognizes that such a certification can be based on a contractual arrangement and is proposing to define established tire collection program to include “a contractual arrangement that ensures that scrap tires are not discar ded and are handled as valuable commodities through arrival at the combustion facilit y.” 76 Fed. Reg. at 80484 and proposed 40 C.F.R. 241.2. Once that certification is made, EPA does not intend to require the combustor to have perfect knowledge of t he source of a secondary fuel and does not require the combustor to test that fuel. “Rather, it is suffi cient that the ultimate user verify that it is obtaining tires from an es tablished tire collection program, which program can provide the user with reasonable assurance that it manages tires carefully from point of collection to point of burning and wh ich does not receive tires which have been abandoned in landfills or ot herwise.” 76 Fed. Reg. 2831 8, 28322 (May 17, 2011).

Please confirm that the record s identified above are suffici ent to meet any burden of proof a combustor may have to show that a fuel is not a waste and that these records meeting the requirements of 40 C.F.R. 60.2740 (u) and 40 C.F.R. 60.7555(d)(2).

Conclusion
For the forgoing reasons, AF&PA and AWC respectfully request EPA to determine by rule that all railroad ties treated with creosote or creosote and borate are non-waste fuels in all boilers and confirm by letter t hat processed railroad ti es are non-waste fuels when combusted in a boiler t hat that has sufficient combustion conditions for oil combustion (with or without the addi tion of additional equipment).
Sincerely,

Paul Noe Robert Glowinski Vice President for Public Policy President American Forest & Paper Association American Wood Council
Enclosure: Banyan Rail Services Inc.
cc: Mathy Stanislaus Suzanne Rudzinski Jim Berlow David Cozzie, OAR

### December 17, 2012

Via e-mail( feldt.lisa@epa.gov )

Lisa Feldt, Deputy Assistant Administrator, Office of Solid Waste and Emergency Response Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Washington, DC 20460

Re: Docket ID No. EPA-HQ-RCR A-2008-0329; Non-Hazardous Secondary Materials That Are Solid Waste; NSPS and EG: Commercial and Industrial SolidWaste Incineration Units: Reconsideration and Proposed Amendments; NonHazardous Secondary Materials That Are Solid Waste: Proposed Rule, RIN 2060- AR15

Dear Ms. Feldt:
Thank you for meeting with me along with members and representatives of the Treated Wood Council (TWC) on December 13, 2012, to discu ss our concerns with the above-referenced proposed rule. We hope that our explanation and documentation of the long-standing use of nonhazardous secondary treated wood as a valuable fueladequately demonstrate that it is not a waste and that disrupting these established commercial relationships would cause adverse economic and environmental consequences. We reiterate our request that EP A include non-hazardous secondary treated wood as a categorical non-waste under the propos ed rule’s section 241.4.

We submitted evidence to the re cord of substantial volumes of secondary non-hazardous treated wood used as a valuable combustion source at a co-gen facility incentral Pennsylvania that was exclusively designed to burn these materi als. From 1988 to 2011, more than twenty years, this facility has burned 2.3 million tons of non-hazardous treated wood to produce electricity, under contracts with89 commercial entities. At ou r meeting, a representative of another company described its facility in easternPennsylvania (referenced in our comments) that grinds treated wood and construction and demoliti on (C&D) materials that are then used for combustion by cement plants, paper mills, and power generation facilities; that facility also was specifically built and permitted for these materials and, to give a sense of its current scale of operations, has handled 140,000 tons of secondary C&D and treated wood during the first 10 1111 19 th Street, NW Suite 800 Washington, DC 20036 Phone: (202) 463-2045 Fax: (202) 463-2059

### months of 2012. A third TWC member was unabl e to attend the December 13 meeting, but at a meeting the following day at OMB (which EPA re presentatives particip ated in by telephone), explained that its facility combusts 75% non- hazardous secondary treated wood and 25% other forms of biomass to power its operation. If the final NHSM rule makes it infeasible to continue using treated wood as a boiler fuel, this plant willhave to shut down, sinc e the cost of trying to meet the new CISWI standards would approximat e $1.5 million, an unacceptably high cost of conversion. We also provided with our February 20, 2011 comments a set of sample executed contracts showing a variety of types of purchase agreements for tr eated wood used for electricity generation and fuel combustion, as a companion to the examples of the historic use of these materials as a valuable commodity. Further, our comments cited a statement submitted to the record by the State of Michigan’s Department of Natural Resources and Environment, noting that in 2009, 16,625 tons of non-hazardous secondary wood products, including wood treated with creosote and pentachlorophenol, were burned fo r energy recovery and were eligible for electricity renewable energy or advanced cl eaner energy credits under Michigan’s Clean, Renewable, and Efficient Energy Act.
Our discussion at the December 13 meeting also explained how the use of non-hazardous secondary treated wood for combusti on is an integral part of th e process in which railway ties and utility poles are managed. As the examples above show, railway ties and utility poles are regularly reclaimed for energy recovery purposes, as part of the overall life cycle of these products. If the final NHSM rule classifies these materials as waste, they will be diverted to landfills, resulting in (1) the us e instead of fossil fuels with higher greenhouse gas emissions (GHG), and (2) the likelihood th at eventual breakdown of th e landfilled treated wood will produce methane, which has approximately twen ty times the global-warming impact of carbon dioxide. The amount of new material unnecessarily diverted to landfills would be enormous – just the 2.3 million tons combusted by one facil ity mentioned above equates to 1.6 times the volume of the Sears Tower in Chicago. Even worse, the disruption this will cause to the existing economics of using these products for railway ties and utility poles could likely result in the substitution of reinforced concrete, galvanized st eel, and other materials fo r these applications. These products produce far higher GHG emissions and other environmental impacts throughout their life cycle, further adding to the net negative environmental and GHG consequences of this outcome.
For all these reasons, we strongly urge you to review the evidence we have submitted to the record. As our comments demonstrat ed, and our meeting emphasized, non-hazardous secondary treated wood is analytically similar to resinated wood, which EPA has concluded should be classified as a cat egorical non-waste under new se ction 241.4. Like resinated wood, non-hazardous secondary treated wood is a soug ht-after fuel, has a long track record of commercial dealings evidencing its established use for energy recovery, has a high BTU value, is clearly considered and managed as a valuable co mmodity, is used in plants designed specifically to use this material that would not be able to operate as designed w ithout it; and like resinated wood, disrupting this established commercial relationship would cause adverse economic – and also environmental – consequences.
Like the formaldehyde in resinated wood, tw o forms of treated wood have constituents that contain HAPs. As other commenters have documented, creosote treated wood contains contaminants at levels comparable to those inthe traditional fuels, coal and fuel oil.

### Pentachlorophenol treated wood cont ains that chemical, which is deliberately added to provide longevity to traditional wood and does not naturally occur in it. However, the concentrations of pentachlorophenol in treated wood are present at far lower percentages than the formaldehyde found in resinated wood that EPA has determined are acceptable, using th e balancing approach laid out in section 241.4. Waterborne and c opper naphthenate preserva tives contain no HAPs and present no issue under the le gitimacy criteria. Non-hazar dous secondary treated wood has a higher BTU value than virgin wood both because it has a lower “as is” moisture content and in many cases (including copper naphthenate-, creoso te- and pentachlorophenol-treated wood) the preserving solution contributes to the heating value of the wood.

Even though this parallel set of facts should be enough fo r EPA to determine that nonhazardous secondary treated wood qua lifies as a categorical non-waste, in an effort to provide additional assurance that these materials are not discarded, TWC has made clear in the record its willingness to accept a limitation to only those materials that are covered by contractual arrangements governing their use as a valuable fuel commodity. Ba sed on our discussions at the December 13 meeting, TWC has refined its prop osed language, which EPA could use in its categorical non-waste determination:
If the non-hazardous, secondary treated wood biomass material is transferred from the generating site or organization to the combustion site under contractual agreements throughout its transfer, the Agency has determinedthat such a transfer does not constitute a “discard,” and ther efore the non-hazardous secondary treated wood biomass is not a “waste” and may be combusted as a boiler fuel. For purposes of this categorical non-waste determination, “non-hazardous s econdary treated wood biomass” includes wood pressure-treated with: waterborne boron-based, organic-based, or copper-based w ood preservatives: creosote or creosote-boron; and oil-bo rne copper naphthenate and pentachlorophenol; bu t does not include wood treated with preservatives containing arsenic or chromium.
For the reasons set forth above and in TWC’s comments, TWC urges EPA to determine that non-hazardous secondary treated wood is a categorical non-wa ste, just like resinated wood, using the same balancing test that it uses for resinated wood under 241.4. (Attachment A compares treated wood to resinated wood, using EPA’ s balancing criteria.) I am also attaching to this letter, in response to a question posed at the December 13 meeting, a list of the known types of non-hazardous treated wood (Atta chment B). I would be happy to answer any questions you may have.
Sincerely,

Jeffrey T. Miller President and Executive Director

### Att: cc: James Berlow ( berlow.jim@epa.gov ) Cortney Higgins ( cortney_higgins@omb.eop.gov ) Kevin Bromberg ( kevin.bromberg@sba.gov )

### (Attachment A) 

## Comparison of Treated Wood to Resinated Wood

Resinated Wood Treated Wood

Resinated wood is a sought-after fuel by many manufacturing and electricity-generating oper ations and is an integral part of the wood manufacturing process. 9

Resinated wood is managed as a desirable fuel for its higher BTU levels (due to low moisture content and the extra heat of added chemicals) 9

Resinated wood is “clearly c onsidered and managed as a valuable commodity” 9

Contaminant levels “may not alwa ys meet the contaminant legitimacy criterion in every situation” 9

Wood product plants were “desi gned to specifically use these residuals” and “would not be able to operate as designed without this material” 9

(Implicitly) Disrupting this established, valuable commercial relationship would cause adverse economic consequences 9

“EPA recognizes that some specific types of non-hazardous secondary materials, such as resinated wood residuals, are more like valuable commodities than solid wastes. Resinated wood is a secondary material that, upon examination, is not discarded when used on-site or transferred off-site to a different company.” 76 Fed. Reg. at 15,499- 500. 9

It is appropriate to balance the legi timacy criteria and other relevant factors to conclude that the purpo se of burning these wood residuals (including the resins they contain, which themselves contribute to the heating value of the material) is not to destroy or discard them, as they are clearly considered and managed as a valuable commodity to the manufacturing process. 76 Fed. Reg. at 80,483. 9

### (Attachment B) 

## List of Known Types of Non-Hazardous Treated Wood

[As background for comparison purposes only: Resinated wood contains 8% resin, which includes formaldehyde and phenol HAPS.]

Waterbornes : Boron-based – up to 0.95% preservative
Organic-based – up to 0.72% preservative
Copper-based – up to 1.56% preservative
The above waterborne pres ervatives contain no HAPS.

Oilbornes : Copper naphthenate – up to 1.02% pr eservative (contains no HAPS)
Pentachlorophenol – up to 1.53% preservative (this is significantly less than the amount of resin in resinated wood) (p entachlorophenol itself is a HAP)
Creosote – (EPA already has extensive information on creosote treated wood.)

[Note: The percentages above refl ect current standards published by the American Wood Protection Association or the International Code Council – Evaluation Service. To insure compliance, some individual pieces of treated wood may be treated to slightly higher levels. Also, all of the percentages above reflect the “penetration zone” only. For some wood species, the “penetration zone” may be only one inch, with no preser vative in the interior of the wood or the heart wood. In those cases, the actual full-wood percentages may be often less.]