4536 Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Proposed Rules 

1See Docket for letter to NHDOT. 

FR 17254). This April 2010 General 

Conformity rule eliminated the Federal 

regulatory requirement for states to 

adopt and submit general conformity 

SIPs, instead making submission of a 

general conformity SIP a state option. 

c. Evaluation of State Submittal 

EPA previously approved a version of 

EnvA–1500 into the New Hampshire 

SIP on November 29, 2013 (78 FR 

71504). For transportation conformity, 

the September 9, 2021, revision contains 

updated references to the Code of 

Federal Regulations (CFR), updates to 

public comment period timeframes, and 

clarifications to roles of interagency 

partners. Specifically, the rule updates 

multiple references to the CFR to the 

April 1, 2018, version from April 1, 

2011. The rule also changes language for 

a public comment for planning 

organizations and New Hampshire 

Department of Transportation (NHDOT) 

from ‘‘a minimum of 10 days’’ to 

‘‘between 10 and 30 days,’’ to match 

language in the NHDOT Statewide 

Transportation Improvement Program 

(STIP) Revision Procedures. 

The New Hampshire submittal also 

provides updated language to projectlevel conformity determinations for 

carbon monoxide (CO) hot spot areas. 

EPA notes that New Hampshire’s 

twenty-year maintenance period for the 

CO NAAQS expired on January 29, 

2021. As a result of this maintenance 

period expiration, conformity 

requirements for the CO standard, 

including hot spot analyses, also 

expired.1 No conformity or project level 

hot spot analyses are required for the 

State’s CO maintenance area, but the 

language would continue to apply in the 

event of a future more stringent CO 

NAAQS and/or future nonattainment 

classification. 

The NH submittal contains updated 

language for General Conformity. As 

noted above, States are not required to 

submit state-level General Conformity 

regulations into the SIP, rather they can 

rely upon the federal provisions. The 

New Hampshire submittal adequately 

refers to the General Conformity Federal 

rule for implementation and contains 

only minor changes in references to the 

2018 Code of Federal Regulations, as 

mentioned above. 

II. Proposed Action 

EPA is proposing to approve New 

Hampshire’s Env–A 1500 Conformity 

into the New Hampshire SIP. This 

revision and proposed approval are 

consistent with the CAA. EPA is 

soliciting public comments on the 

issues discussed in this notice or on 

other relevant matters. These comments 

will be considered before taking final 

action. Interested parties may 

participate in the Federal rulemaking 

procedure by submitting written 

comments to this proposed rule by 

following the instructions listed in the 

ADDRESSES section of this Federal 

Register. 

III. Incorporation by Reference 

In this rule, the EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, the EPA is 

proposing to incorporate by reference of 

NH’s updated Env–A 1500, Conformity, 

as discussed in sections I. and II. of this 

preamble, into 40 CFR part 52. The EPA 

has made, and will continue to make, 

these documents generally available 

through https://www.regulations.gov 

and at the EPA Region 1 Office (please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section of 

this preamble for more information). 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this proposed action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: January 24, 2022. 

Deborah Szaro, 

Acting Regional Administrator, EPA Region 

1. 

[FR Doc. 2022–01627 Filed 1–27–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 241 

[EPA–HQ–OLEM–2020–0550; 7815–02– 

OLEM] 

RIN 2050–AH13 

Petition To Revise the Non-Hazardous 

Secondary Material Standard: 

Proposed Response 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notification of tentative 

response to petition for rulemaking. 


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SUMMARY: The Environmental Protection 

Agency (EPA or ‘‘the Agency’’) is 

responding to a rulemaking petition 

from American Forest and Paper 

Association et al. (‘‘the petition’’) 

requesting amendments to the NonHazardous Secondary Materials (NHSM) 

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 (RCRA). 

The NHSM regulations establish 

standards and procedures for 

identifying whether non-hazardous 

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 NHSM to 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 (CTRT); 

and revise the definition of ‘‘paper 

recycling residuals’’ (PRR) to remove the 

limit on non-fiber materials in PRR that 

can be burned as a non-waste fuel. The 

EPA is proposing to deny the requested 

amendments. In addition, as an 

alternative to granting the third request, 

EPA is proposing a change to the 

definition of PRR to set a numerical 

limit on the amount of non-fiber 

materials that may be included for the 

residuals to be considered a non-waste 

fuel. 

DATES: Comments must be received on 

or before March 29, 2022. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OLEM–2020–0550, by any of the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov/ (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

OLEM Docket, Mail Code 28221T, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460. 

• Hand Delivery or Courier (by 

scheduled appointment only): EPA 

Docket Center, WJC West Building, 

Room 3334, 1301 Constitution Avenue 

NW, Washington, DC 20004. The Docket 

Center’s hours of operations are 8:30 

a.m.–4:30 p.m., Monday–Friday (except 

Federal Holidays). 

Instructions: All submissions received 

must include the Docket ID No. for this 

rulemaking. Comments received may be 

posted by the Agency without change to 

https://www.regulations.gov/, including 

any personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. Out of an abundance of 

caution for members of the public and 

our staff, the EPA Docket Center and 

Reading Room are open to the public by 

appointment only to reduce the risk of 

transmitting COVID–19. Our Docket 

Center staff also continues to provide 

remote customer service via email, 

phone, and webform. Hand deliveries 

and couriers may be received by 

scheduled appointment only. For 

further information on EPA Docket 

Center services and the current status, 

please visit us online at https://

www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Tracy Atagi, Office of Resource 

Conservation and Recovery, Materials 

Recovery and Waste Management 

Division, MC 5303P, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW, Washington, DC 20460; 

telephone number: 202–566–0511; 

email address: atagi.tracy@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. Public Participation 

III. Background 

A. History of NHSM Rulemaking 

B. Summary of the Petitioners’ Requested 

Changes 

C. Background on Creosote-Treated 

Railroad Ties 

IV. EPA Response to Petitioners’ Requested 

Changes 

V. Effect of This Proposal on Other Programs 

VI. State Authority 

A. Relationship to State Programs 

B. State Adoption of the Rulemaking 

VII. Costs and Benefits 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Executive Order 13771: Reducing 

Regulation and Controlling Regulatory 

Costs 

C. Paperwork Reduction Act (PRA) 

D. Regulatory Flexibility Act (RFA) 

E. Unfunded Mandates Reform Act 

(UMRA) 

F. Executive Order 13132: Federalism 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

J. National Technology Transfer and 

Advancement Act (NTTAA) 

K. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. List of Abbreviations and Acronyms 

Used in This Proposed Rule 

Btu British thermal unit 

CAA Clean Air Act 

CBI Confidential business information 

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 

MACT Maximum achievable control 

technology 

NAICS North American Industrial 

Classification System 

ND Non-detect 

NESHAP National emission standards for 

hazardous air pollutants 

NHSM Non-hazardous secondary material 

OMB Office of Management and Budget 

PAH Polycyclic aromatic hydrocarbons 

ppm Parts per million 

PRR Paper Recycling Residuals 

RCRA Resource Conservation and Recovery 

Act 

RIN Regulatory information number 

SBA Small Business Administration 

SO2 Sulfur dioxide 

SVOC Semi-volatile organic compound 

U.S.C. United States Code 

VOC Volatile organic compound 

B. What is the statutory authority for 

this proposed rule? 

The EPA is proposing to deny the 

requested revisions in the AF&PA 

petition and is proposing 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). 


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C. Does this proposed 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 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. Public Participation 

A. Written Comments 

Submit your comments, identified by 

Docket ID No. EPA–HQ–OLEM–2020– 

0550, at https://www.regulations.gov 

(our preferred method), or the other 

methods identified in the ADDRESSES

section. Once submitted, comments 

cannot be edited or removed from the 

docket. The EPA may publish any 

comment received to its public docket. 

Do not submit to EPA’s docket at 

https://www.regulations.gov any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e. on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. 

Due to public health concerns related 

to COVID–19, the EPA Docket Center 

and Reading Room are open to the 

public by appointment only. Our Docket 

Center staff also continues to provide 

remote customer service via email, 

phone, and webform. Hand deliveries or 

couriers will be received by scheduled 

appointment only. For further 

information and updates on EPA Docket 

Center services, please visit us online at 

https://www.epa.gov/dockets. 

The EPA continues to carefully and 

continuously monitor information from 

the Centers for Disease Control and 

Prevention (CDC), local area health 

departments, and our Federal partners 

so that we can respond rapidly as 

conditions change regarding COVID–19. 

III. Background 

A. History of the NHSM Rulemakings 

The 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. 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.’’ Id at section 

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 advanced 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 


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1Commercial 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. 

2 78 FR 9173, February 7, 2013. 

3 81 FR 6723, February 8, 2016. 

4 83 FR 5318–19, February 7, 2018. 

5AFPA Rail Tie Petition Request December 6, 

2012, EPA–HQ–RCRA–2013–0110–0002. 

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 

must meet the legitimacy criteria 

specified in 40 CFR 241.3(d)(1). 

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. 

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 manufacturing process 

(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 process, 

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.’’ 1 While the 2013 

final rule did not contain any provisions 

specific to creosote-treated wood or 

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.2 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.3 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.4

B. Summary of the Petitioners’ 

Requested Changes 

The Agency is responding 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 the Resource 

Conservation and Recovery Act (RCRA). 

The petition was received on 

December 7, 2018; petitioners included 

American Forest and Paper Association 

(AF&PA), Association of American 

Railroads (AAR), Treated Wood Council 

(TWC), American Short Line and 

Regional Railroad Association 

(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)–(a)(10); and (3) revise the 

definition of paper recycling residuals 

(PRR) that can be burned as non-waste 

found at 40 CFR 241.2 to remove the 

limit on non-fiber materials. 

C. Background on Creosote-Treated 

Railroad Ties (CTRT) 

One outcome that the petitioners seek 

to achieve with their requested 

regulatory changes is to expand the 

national capacity for burning CTRT as 

non-waste fuel. Creosote was introduced 

as a wood preservative in the late 1800s 

to prolong the life of railroad ties. As 

creosote is a byproduct of coal tar 

distillation, and coal tar is a by-product 

of making coke from coal, creosote is 

considered a derivative of coal. 

Approximately 17 million railroad ties 

are removed from service each year in 

the U.S. After railroad ties are removed 

from service, they are transferred for 

sorting/processing. Based on 

information provided by industry,5 the 

processing of the railroad ties into fuel 


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6While 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. 

7 In addition, one study 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. 

8Bolin and Smith, ‘‘Creosote-Treated Ties End-ofLife Evaluation’’, p. 9. 

9H.R. 857, 150th Gen Assemb., Reg. Sess. 

(Georgia 2020). 

10See Permit Amendment Nos. 4911–195–0020– 

E–01–1 and 4911–119–0025–E–04–1 available in 

the docket. 

11See Compilation of Citizen Complaints 

Regarding Combustion of Creosote-Treated Railroad 

Ties available in the docket. 

12See June 30, 2020 Georgia EPD Meeting 

Summary available in the docket. 

13H.R. 857, 150th Gen Assemble. Reg. Sess. 

(Georgia 2020). 

14March 5, 2020 hearing before the Ga. House 

Natural Resources and Environment Comm., 2019– 

2020 Reg. Sess. (2020) (Statement of Alan Powell). 

See https://livestream.com/accounts/25225474/ 

events/8737135/videos/202562457 at 13:30. 

15See Compilation of Citizen Complaints 

Regarding Combustion of Creosote-Treated Railroad 

Ties available in the docket. 

by the reclamation/processing 

companies involves several steps. 

Metals (spikes, nails, plates, etc.) are 

removed using a magnet, once or several 

times during the process. The railroad 

ties are then ground or shredded to a 

specified size depending on the 

particular needs of the end-use 

combustor, with chip size typically 

between 1–2 inches. This step occurs in 

several phases, including primary and 

secondary grinding, or in a single phase. 

Once the railroad ties are ground to a 

specific size, additional metal is 

removed if present and there is further 

screening based on the particular needs 

of the end-use combustor. Depending on 

the configuration of the facility and 

equipment, screening occurs 

concurrently with grinding or at a 

subsequent stage. Throughout the 

process, a non-toxic surfactant may be 

applied to the railroad ties being 

processed to minimize dust. Once the 

processing of CTRT is complete, the 

CTRT are sold directly to the end-use 

combustor for energy recovery. 

Use of CTRT as an alternative fuel 

may have the potential to produce 

various environmental benefits 

including reducing fossil fuel use,6

increasing the heat value of the fuel mix 

and improving the combustion 

temperature and conditions.7

Additionally, combusting CTRT 

provides an alternative to landfill 

disposal, which studies have shown 

may reduce methane emissions from 

anaerobic decay and extend landfill 

capacity. Even when accounting for 

energy recovery of the methane 

generated from landfill disposal of 

CTRT, the fuel offset from combusting 

CTRT for energy recovery is estimated 

to be 20 times greater than energy 

recovery from landfill gas.8

However, as noted in the 2011 NHSM 

final rule, creosote is produced from the 

process of distillation of coal tar for the 

purpose of creating a wood preservative, 

not a fuel, and creosote has different 

chemical concentrations than coal. In 

particular, CTRT has elevated levels of 

hexachlorobenzene, a CAA 112 

Hazardous Air Pollutant (HAP), as well 

as other HAPs, when compared to coal. 

(76 FR 15483, March 21, 2011). Thus the 

2016 NHSM non-waste determination is 

limited to CTRTs that are used as fuel 

in specific types of units where CTRTs 

have contaminants at levels comparable 

to or lower than the traditional fuel that 

combustion units are designed to burn. 

In addition, the EPA has also recently 

become aware of reported problems 

associated with processing CTRT for use 

as fuel. Grinding CTRT can create dust 

that may blow onto neighboring 

properties. Processing CTRT into fuel 

can also be associated with other, moregeneralized issues like excess noise 

from grinding, loud night-time 

operations, and the smell of creosote. 

These issues, combined with public 

concerns, led the Georgia state 

legislature to ban the combustion of 

CTRT for commercial electricity 

generation in June 2020.9 The public 

complaints that prompted this 

legislative action were associated with 

two power plants that received modified 

permits allowing them to combust fuel 

oil and CTRT in 2018.10 Since that time, 

the Georgia Environmental Protection 

Division received at least 23 complaints 

related to these combustors at the two 

plants.11 About half of these complaints 

involved the smell of creosote or smoke 

and air quality concerns; issues 

associated with dust, excess noise, and 

runoff were also alleged five times each. 

Five complaints attributed headaches 

and burning eyes and airways to the 

effect of creosote combustion at the 

plants. 

Based on EPA discussions with 

Georgia Environmental Protection 

Division, it appears that inefficient 

boiler operations, particularly during 

start-up and shut-down operations, 

(which were subsequently corrected) 

and CTRT grinding were most likely to 

blame for the community complaints.12

Notably, the large majority of 

complaints were associated with the 

facility where grinding operations took 

place. Additionally, the Georgia 

legislation banning CTRT combustion 

for commercial energy generation 

created an exemption for any boiler that 

‘‘also provides steam or electricity to 

any co-located forest products 

processing plant.’’ 13 This provision was 

added to the legislation to allow a 

CTRT-combusting paper mill in 

southern Georgia to continue its 

operations because it had not prompted 

similar citizen complaints.14

As was done in Georgia, state and 

local governments have authority under 

their state solid waste and water 

programs, as well as local ordinances, to 

address 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. 

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 remains unclear how frequently 

CTRT processing causes community 

concerns and how processors and state 

and local governments have responded. 

EPA is aware of a handful of cases 

outside of Georgia in which similar 

concerns were raised by communities 

where CTRT grinding takes place,15 but 

EPA lacks comprehensive information 

on the frequency and extent of such 

issues and challenges. These 

environmental concerns may impact a 

material’s classification as an NHSM. 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. 

EPA is requesting comment on CTRT 

processing to help the Agency 

determine whether it is standard 

practice to manage CTRT intended for 

combustion as an NHSM in a manner 

that fulfills the ‘‘valuable commodity’’ 

legitimacy criterion by preventing 

environmental releases. 


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Specifically, EPA is requesting 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. Information on 

the types of control methods or devices 

available, their efficacy, and their 

practicality may assist the Agency in 

making decisions regarding CTRT 

processing in the future. Useful 

comments may include information 

such as industry standards, best 

management practices (BMPs) or 

standard operating procedures (SOPs), 

and state or local regulations or 

ordinances regarding dust containment. 

In addition, the Agency is requesting 

comment on the location of CTRT 

grinding facilities and whether the 

communities surrounding them face the 

risk of bearing an undue cumulative 

environmental health burden. Moreover, 

EPA is also requesting comment on 

other sources of environmental 

pollution and demographic trends 

(especially regarding vulnerable 

populations) in the vicinity of CTRT 

management locations. 

IV. EPA Response to Petitioners’ 

Requested Changes 

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.’’ 

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 non-hazardous 

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 

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 

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 (Feb. 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. EPA Response 

The argument that the 2017 API 

decision invalidates the contaminant 

comparison criterion for NHSM 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. 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, unless the material 

is a commercial chemical product that 

is itself a fuel. (See 40 CFR 261.2(c)(2)). 

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 


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16EPA notes that there are other options to 

landfilling CTRTs, including using them as fuel in 

units that are in compliance with CAA 129 and 

129 or CAA section 112. Without the 

contaminant criterion, an NHSM could 

contain contaminant levels that are 

significantly higher than the traditional 

fuels they are meant to replace and still 

be considered a non-waste fuel. 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 may be occurring. 

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 at 60. 

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. 

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. 

Finally, 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 that 

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, would create regulatory 

uncertainty for the combustion units 

that burn this material and rely on an 

accurate non-waste determination for 

their CAA permit applicability 

determinations. The Agency is, 

therefore, proposing to deny 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 

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. 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 railroad ties are being 

legitimately used as fuel, or in fact are 

simply being discarded in a 

hypothetical ‘‘sham recycling’’ 

operation. 

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 felt 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 railroad ties and 

other similarly situated NHSM as fuel, 

rather than restrict that use and 

condemn valuable fuel sources to 

landfills. Furthermore, the 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. 

According to a survey conducted 

jointly by the Railway Tie Association, 

ASLRRA and the AAR, railroads 

removed an average annual total of 

23,975,000 railroad ties as part of track 

upgrade projects in the period from 

2013 to 2016. The survey indicated that 

railroads sent 81.3% of those railroad 

ties to cogeneration facilities. As 

asserted in the joint comments 

previously submitted by AAR, TWC, 

and AF&PA on January 3, 2017, the 

designed to burn criterion disqualified 

approximately 58% of the existing 

boiler capacity to burn these railroad 

ties. Petitioners noted this capacity 

limitation means it takes much longer to 

move ties through the fewer eligible 

facilities, and railroads must transport 

the ties longer average distances to 

reach an eligible facility. 

The primary alternative for managing 

the large volume of railroad ties 

removed from the rail lines each year is 

landfill disposal. According to 

petitioners, if substantial numbers of 

ties are excluded from the scope of what 

can be burned for energy generation in 

lieu of fossil fuels, the result will be an 

increased use of non-renewable fuels 

and an increase in the volume of ties 

sent to landfills. As the landfilled ties 

decay, they release greenhouse gases— 

including methane—into the Earth’s 

atmosphere, an outcome that petitioners 

argued is contrary to public policy and 

the EPA’s stated goals. 

Further, at a cost of $70 to $90 per 

ton, petitioners projected that 

landfilling the additional railroad ties 

will cost railroads an additional $74 to 

$95 million per year.16 Petitioners argue 


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landscaping; see Smith, Stephen T., ‘‘2018 Railroad 

Tie Survey,’’ https://www.rta.org/assets/docs/ 

RTASponsoredResearch/Environmental/2019-4- 

9%20Tie%20Survey%20Report%20Final.pdf. 

17This issue would be a concern even under the 

petitioners’ requested change to make the 

contaminant comparison criterion ‘‘to be 

considered’’ rather than mandatory. 

18EPA is neither reopening nor taking comment 

on these regulations. 

19 81 FR 6724, February 8, 2016. 

that reduction of these burdensome and 

unnecessary costs is consistent with 

Executive Order 13771 and the EPA’s 

August 17, 2018 memorandum 

reinforcing the work of the EPA’s 

Regulatory Reform Task Force. 

2. 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, 

which is 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, it is 

entirely appropriate that an NHSM 

would be considered a non-waste 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. Under 40 CFR 

241.4(a)(7)(i) and (8)(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 biomass alone. Without the 

designed to burn criterion, contaminant 

levels could be compared to any 

traditional fuel or combination of 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.17

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 a 

traditional fuel that can be or is 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 is physically capable 

of burning 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 

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 regards to petitioners’ comments on 

EPA’s decision to include in the nonwaste 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(7)(ii),18

the EPA could have reasonably limited 

the contaminant comparison to the 

much lower contaminant levels in 

natural gas. However, as part of 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)), the 

Agency elected to include units that no 

longer burn fuel oil to avoid 

‘‘penalizing’’ the converted units that 

switched to cleaner-burning fuel.19

Conditions imposed on CTRT 

combusted in natural gas-fired units are 

part of the relevant factors the EPA used 

to determine whether discard has 

occurred (see 81 FR 6724–25). 

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 being replaced. 

Without the designed to burn criterion, 

CTRT could be combusted in biomassonly boilers, including biomass boilers 

that are area sources under the CAA. 

These boilers would have higher 

emissions when burning CTRT rather 

than biomass. 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. The Agency is 

therefore proposing to deny petitioners’ 

request regarding the designed to burn 

criterion. See section IV.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 raises 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 ties for 

a year or longer without an end-use 

determination is not ‘‘reasonable,’’ and 

indicates that the material has been 

discarded. Petitioners asserted that this 

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 ties 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 ties within one year of removal 

from service—but for reasons 

completely unrelated to the 

determination of whether ties are 

managed as a ‘‘valuable commodity’’ 

under the NHSM framework. Moreover, 

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 

storage timeframe. 

2. EPA Response 

Regarding storage time for CTRT (to 

meet the valuable commodity criterion), 

petitioners misinterpreted the preamble 

discussion in the February 8, 2016 rule, 

which explained that the amount of 

time for industry to decide on value and 

end use of CTRT (whether sent to a 

landfill, used as fuel, or another nonfuel purpose) could exceed one year (81 

FR 6725). In such circumstances, 

lengthy storage of the treated railroad 

ties generally occurs because the 

railroad has not determined the end use 

of the ties, not because the ties are being 

stored for later transfer to a preestablished buyer. Further, CTRT would 

be considered discarded until processed 


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20 81 FR 6716, February 8, 2016. 

21 81 FR 6718, February 8, 2016. 

22 Institute of Scrap Recycling Industries (ISRI) 

Scrap Specifications Circular (2021), page 34; 

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

into a non-waste 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 general reasoning for this off-site 

standard is that the incentive for 

management of the NHSM as a valuable 

fuel product is lessened when 

transferred to a third party. To be 

considered a non-waste fuel when 

transferred off-site without first 

undergoing processing, the material 

would have to undergo the petition 

process under 241.3(c) to demonstrate 

that the material has not been discarded. 

EPA continues to find, as noted in the 

2016 rule, that railroad ties removed 

from service can be stored for long 

periods of time without a final 

determination regarding their final end 

use, and they are considered discarded. 

In order for these ties to be considered 

a non-waste fuel, they must be 

processed, thus transforming the 

railroad ties into a product fuel, and 

then combusted in prescribed units 

under prescribed conditions. 

D. Request To Amend the Definition of 

‘‘Paper Recycling Residuals’’ 

1. Petitioners’ Request 

Petitioners also requested that the 

EPA amend 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 

have used good faith efforts in 

determining that PRR burned as fuel 

meet this condition, it is well 

established 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 

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. 

2. EPA Response 

EPA disagrees with the petitioner’s 

arguments for removing language 

limiting the amount of non-fiber 

materials in PRR burned as a non-waste 

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 be considered 

discard. PRR already has a relatively 

low heating value (as fired and 

generated, average 3,700 Btu/lb),20 so 

large amounts of non-fiber materials 

would lower the heating value of the 

material, further raising the question of 

burning as discard. 

In the review of the petition, the 

Agency reaffirms the previous 

conclusion that residuals from processes 

such as mixed paper waste recycling 

with significant quantities of non-fiber 

materials (e.g., clays, starches, waxes 

and adhesives, other plastics, filler and 

coating additives, and dyes and inks) 

are considered to be a solid waste fuel 

when combusted, due to a lack of 

meaningful heating value.21

However, the EPA does believe that it 

may be more appropriate to set a 

numerical threshold for non-fiber 

material, 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 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 re-pulping paper.22 In the circular, 

prohibitive material is material which 

by its presence, in excess of the amount 

allowed, will make the pack 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 has 

concluded that this prohibitive material 

measure can provide an analogous 

measure for non-fiber materials 

contained within PRR. 

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, and 

therefore we are proposing to change the 

language to ‘‘fibers that are too small or 

weak to be used to make new paper and 

paperboard products.’’ 


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Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Proposed Rules 4545 

23 76 FR 15456, March 21, 2011 (page 15545). 

24 76 FR 15456, March 21, 2011 (page 15546). 

Accordingly, the Agency proposes to 

revise the definition of PRR as follows: 

Paper recycling residuals (PRR) 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. Residuals that 

contain more than 2% by weight of nonfiber materials, including polystyrene 

foam, polyethlene film, other plastics, 

waxes, adhesives, dyes and inks, clays, 

starches and other coating and filler 

material are not PRR under this 

definition. 

V. Effect of This Final Rule on Other 

Programs 

Beyond amending the definition of 

PRR, this tentative denial does not 

change the effect of the NHSM 

regulations on other programs as 

described in the March 21, 2011 NHSM 

final rule, 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 23 for the discussion on the 

effect of the NHSM rule on other 

programs. 

VI. State Authority 

A. Relationship to State Programs 

This tentative denial and proposed 

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 24 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 proposed 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 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. 

VII. 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 

the proposal that examines the scope of 

indirect impacts. 

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 13563: Improving Regulation and 

Regulatory Review 

This action is a significant regulatory 

action that was submitted to the Office 

of Management and Budget (OMB) for 

review because it may raise novel policy 

issues. Any changes made in response 

to OMB recommendations have been 

documented 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. 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, 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 

because the rule has no net burden on 

the small entities subject to the rule. 

While this proposed action will provide 

greater clarity, reduce regulatory 

uncertainty associated with paper 

recycling residuals, and help increase 

management efficiency, it would not 

change the substantive requirements of 

the regulations. The proposed 2% limit 

for non-fiber material in PRR that would 

replace the current limit of ‘‘small 

amounts’’ is based on a voluntary 

consensus standard set by the Institute 

of Scrap Recycling Industries (ISRI) in 

their Scrap Specifications and would 

not require a change in current industry 

practices. We have therefore concluded 

that this action will have no net 

regulatory burden for all directly 

regulated small entities. 

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 

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 proposed 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 

This action is not subject to Executive 

Order 13045 because it is not 

economically significant as defined in 

the Executive Order 12866, and because 

the EPA does not believe the 


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4546 Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Proposed Rules 

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 these units remain subject to 

the protective standards established 

under CAA section 112. 

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. The EPA proposes to use a 

2% by weight limit on the amount of 

non-fiber content allowed in paper 

recycling residuals (PRR) when burned 

as a non-waste fuel. This is based on a 

voluntary consensus standard set by the 

Institute of Scrap Recycling Industries 

(ISRI) in their Scrap Specifications 

Circular (2021); which identifies a 2% 

prohibitive material content limit for 

paper stock used for re-pulping paper. 

See page 34; http://www.scrap2.org/ 

specs/. In the circular, prohibitive 

material is material which by its 

presence, in excess of the amount 

allowed, will make the pack unusable as 

the grade specified, as well as any 

material 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 

proposes that this prohibitive material 

measure can provide an analogous 

measure for allowable amounts of nonfiber materials (including polystyrene 

foam, polyethlene film, other plastics, 

waxes, adhesives, dyes and inks, clays, 

starches and other coating and filler 

material) contained within PRR. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes that this action, if 

finalized, would not have 

disproportionately high and adverse 

human health or environmental effects 

on minority populations, low-income 

populations and/or indigenous peoples, 

as specified in Executive Order 12898 

(59 FR 7629, February 16, 1994). The 

proposed change in definition of PRR is 

not expected to significantly change the 

overall level of emissions, or the 

emissions mix from boilers, and these 

units remain subject to the protective 

standards established under CAA 

section 112. 

However, if EPA were to grant the 

petitioners’ requests, CTRT could be 

combusted in biomass-only boilers, 

including biomass boilers that are area 

sources under the CAA. As discussed 

earlier, these boilers would have higher 

emissions when burning CTRT rather 

than biomass. 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. The risks from 

increased emissions would most likely 

be disproportionately borne by minority 

and low-income communities. In areas 

within three miles of boilers, the 

minority share of the population was 

found to be 33 percent, compared to the 

national average of 25 percent. For these 

same areas, the percent of the 

population below the poverty line (16 

percent) is also higher than the national 

average (13 percent). 

List of Subjects in 40 CFR Part 241 

Environmental protection, Air 

pollution control, Waste treatment and 

disposal, Non-Hazardous Secondary 

Materials. 

Michael S. Regan, 

Administrator. 

For the reasons stated in the 

preamble, the EPA is proposing to 

amend 40 CFR part 241 of the Code of 

Federal Regulations 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. Amend § 241.2 by revising the 

definition of ‘‘paper recycling residuals’’ 

to read as follows: 

§ 241.2 Definitions. 

* * * * * 

Paper recycling residuals (PRR) 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. PRR that contain 

more than 2% by weight of non-fiber 

materials, including polystyrene foam, 

polyethlene film, other plastics, waxes, 

adhesives, dyes and inks, clays, starches 

and other coating and filler material are 

not PRR under this definition. 

* * * * * 

[FR Doc. 2022–01074 Filed 1–27–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 227, 237, 239, and 252 

[Docket DARS–2019–0067] 

RIN 0750–AK87 

Defense Federal Acquisition 

Regulation Supplement: 

Noncommercial Computer Software 

(DFARS Case 2018–D018) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2018 that requires DoD to consider 

all noncommercial computer software 

and related materials necessary to meet 

the needs of the agency. In addition to 

the request for written comments on this 

proposed rule, DoD will hold a public 

meeting to hear the views of interested 

parties. 

DATES: 

Submission of Comments: Comments 

on the proposed rule should be 

submitted in writing to the address 

shown below on or before March 29, 

2022, to be considered in the formation 

of a final rule. 

Public Meeting: A virtual public 

meeting will be held on March 3, 2022, 

from 11:00 a.m. to 2:30 p.m. Eastern 

time. DoD will also reserve 2:30 p.m. to 

5:00 p.m. Eastern time on the same day, 


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