Administrator Jackson 

December 6, 2012 

Page 2 

mission includes advancing the interests of its member companies in regulatory and 

judicial arenas. AF&PA members currently use 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 treated 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 burned at forest product mills and more mills are actively 

considering its use so they remain an important source of fuel for AF&PA members. 

We estimate that it would cost the 12 mills 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 engineered wood products, 

representing over 60% of the industry. From 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 women in well-paying jobs. AWC's 

engineers, technologists, scientists, and building code experts develop state-of-the-art 

engineering data, technology, and standards on structural wood products for use by 

design professionals, building officials, and wood products manufacturers to assure the 

safe and efficient design and use of wood structural components. AWC also provides 

technical, legal, and economic information on wood design, green building, and 

manufacturing environmental regulations advocating for balanced government policies 

that sustain the wood products industry. The types of biomass boilers AWC members 

operate could burn railroad ties and some companies are considering their use in the 

near future.

3. Proposed Action. 

Please add the following language to 40 C.F.R. 241.4(a): 

“(3) Railroad ties treated with creosote or creosote and borate.” 

4. Need and Justification for Proposed Action. 

The proposed action is needed to correct an erroneous conclusion reached in the 

March 2011 final NHSM Rule that combustion of railroad 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 Railroads, 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 creosote-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, there is a robust market for creosote-treated wood, specifically 

railroad ties that have been removed from service. As noted above, 12 forest products 

industry mills purchased approximately 550,000 tons 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 American Railroads, approximately 17 million railroad 

ties are removed from service each year.2

 Railroads typically contract 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 company 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 railroad 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 their 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 certain hog fuels. 

The fact that railroad ties are valuable commodities also is demonstrated by the 

management of these materials. Sale of railroad ties is integral to the contracts for 

railroad tie removal and is integral to the business 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 American 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 for 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 whole railroad ties, but forest products industry 

boilers require chipped ties that have been processed 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 combustion 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 serve those markets. It also is clear that 

combustors pay for the railroad ties that they use as fuel. These facts demonstrate that 

railroad ties are valuable fuel commodities. Thus, 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 legitimacy criteria under 40 C.F.R. 241.3(d), except 

possibly the contaminant comparison criterion depending on what traditional fuels are 

considered in comparison. However, upon evaluating 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, notwithstanding 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 reclamation value of the railroad ties. These ties 

are the commodities that railroad tie reclamation companies sell in the marketplace. 

Thus, these companies manage railroad ties to retain their value 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 processing log feedstock for the pulping process. This generally 

amounts to a pile adjacent to the bark pile that is reclaimed 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 typically is on the order of 1 to 2 inches. The 

contracts for the purchase of RTF include fuel specifications limiting 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-treated 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 meaningful heating value. These 

fuels are used to generate energy at AF&PA member facilities as well as other cogeneration facilities that buy railroad 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 traditional fuels that boilers are 

designed to burn. 40 C.F.R. 241.3(d)(1)(iii). 

In the NHSM final rule preamble, EPA expressed the concern that creosote-treated 

wood contains contaminants at levels that are not comparable to those found in coal or 

wood. “Accordingly, creosote treated wood, when burned, seems more like a waste 

than a commodity and does not meet the legitimacy criterion for contaminants and 

therefore should be considered a waste when burned as a fuel.” 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 commodities. 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 of American Railroads that demonstrates that 

creosote treated railroad ties contain contaminant levels that are comparable to fuel oils, 

which are traditional fuels.9

 Under 40 C.F.R. 241.3, creosote-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 contaminants in borate preservatives are at 

levels that are significantly below 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-2008-0329-1811, at 3. 

8 Comment submitted by Jeffrey T. Miller, President and Executive Director, Treated Wood Council 

(TWC), EPA-HQ-RCRA-2008-0329-0772, 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 Fuels: Tables for Comparison, November 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 Consulting. EPA-HQ-RCRA-2008-0329-1569. 
Administrator Jackson 

December 6, 2012 

Page 6 

has already concluded that borate treated wood “meets the legitimacy criterion on the 

level of contaminants and comparability to traditional fuels.” 76 Fed. Reg. at 15484. 

iv. Other relevant criteria 

An overall balancing of the legitimacy criteria with other relevant factors should lead 

EPA to the conclusion that the combustion of railroad ties is not a waste management 

activity and that railroad ties should be considered a commodity fuel even if contaminant 

levels are not comparable to coal or virgin wood. If EPA does not do so, then the same 

railroad tie from the same reclamation company could be considered a fuel if sold to a 

combustor that has a liquid fuel delivery system 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 valuable fuel commodities by market-place 

participants, in this case the fuel delivery system does not provide a meaningful 

distinction and is not an appropriate method of distinguishing between wastes and fuels. 

In balancing the legitimacy criteria, EPA should give 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 determination that the combustors who buy 

this fuel are burning it for legitimate energy recovery and are not burning it with the 

intent to discard it. As EPA knows, the legitimacy criteria are factors used to ascertain 

the intent of a combustor to determine if discard is taking place. In the case of railroad 

ties, the fact that combustors buy this fuel is evidence 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 comments filed by the American Association of 

Railroads, the use of railroad ties as fuels displaces fossil fuels that emit greenhouse 

gases that, unlike wood, are not currently part of the 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 fuels, “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 potent greenhouse gas. 

In balancing environmental benefits, EPA should consider the solid waste management 

benefits of using railroad ties as fuel, instead of discarding them in landfills. According 

to the Association of American Railroads, the 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 field that is 70 stories high. That landfill capacity would be 

needed each year.12 

EPA also should consider the fact that, for the facilities that use railroad ties as fuel, 

those ties are as integral to the production process 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 fuel characteristics of railroad tie fuel, as 

noted above, delivers, dry, consistent, high-BTU combustion benefits. Railroad ties 

improve mixed biomass combustion by providing 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 objectives. In June 2009, EPA issued its “2020 Vision Report: 

Sustainable Materials Management: The Road Ahead.” The “2020 Vision Report” 

includes the following statement: 

In a system that recognizes the true value of materials, and accounts for all the 

environmental impacts associated with materials use, the concept of waste is 

significantly changed. Products and materials presently viewed as acceptable to 

throw away will increasingly be recognized as valuable. Materials that used to 

“go to waste” will be reused or become 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 continued use as a fuel. To do otherwise would 

compel the disposal of this valuable fuel in landfills. That result undermines EPA’s 

sustainable materials management objectives, reduces the ability of the U.S. to 

decrease the use of fossil fuels, and increases the pressure on solid waste landfill 

capacity. To avoid these adverse environmental outcomes, EPA should recognize that 

railroad ties are a valuable fuel and not a waste, 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 processed 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 ingredient products that are 

used in a combustion unit, and are produced from the processing 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 consider 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 that 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; significantly 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 result 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 combust whole railroad ties, it is a common 

practice for railroad tire reclamation companies 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 specifications 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 alternative 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 fact, 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 that are processed in this manner meet EPA’s 

processing definition. 

2. Railroad ties meet the legitimacy criteria when combusted in most boilers. 

As discussed above, railroad ties meet EPA’s legitimacy criteria relating to management 

practices, meaningful heating value, and use as a fuel, irrespective of the type of boiler 

that is used for combustion. However, under EPA’s regulations, railroad ties would not 

meet the contaminant legitimacy 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 capable of firing RTF also are capable of firing fuel oil. In fact 

most boilers are designed in a manner that fuel oil firing can be accommodated.14 For 

example, one forest products company has at least 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 that has sufficient combustion conditions for oil (with or 

without the addition of additional equipment) and that could be modified to add a liquid 

fuel delivery system, is “designed to burn” fuel oil, whether 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 records showing that the fuel meets the 

legitimacy criteria of Part 241. See 40 C.F.R. 60.2740 (u) (CISIWI) 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 ties are not solid wastes by keeping the 

following records: 

a. A copy of an EPA letter confirming that 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 boilers 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 programs. Units that combust tires are allowed 

to rely on certifications that the tires that are combusted are from established tire 

collection programs and were not discarded. 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 discarded and are handled as valuable commodities 

through arrival at the combustion facility.” 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 the source of a secondary fuel and does not 

require the combustor to test that fuel. “Rather, it is sufficient that the ultimate user 

verify that it is obtaining tires from an established 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 which does not receive tires which have been 

abandoned in landfills or otherwise.” 76 Fed. Reg. 28318, 28322 (May 17, 2011). 

Please confirm that the records identified above are sufficient 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 that processed railroad ties are non-waste fuels 

when combusted in a boiler that that has sufficient combustion conditions for oil 

combustion (with or without the addition 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