Secondary Material (NHSM), Alternative Fuels Program (40 CFR 241)
This rule is effective February 7, 2018.
Convergen uses clean manufacturing by-products to make a densified, renewable fuel pellet that closely replicates the energy, storage, and handling characteristics of coal with fewer harmful emissions. The pellets have been designated by the US EPA as a non-waste alternative fuel under the EPA’s Non-Hazardous, Secondary Material (NHSM), Alternative Fuels Program (40 CFR 241). The non-waste designation by the EPA allows our fuel to be permitted as a traditional fossil fuel replacement in most power plants. CE pellets are classified as a renewable fuel in the states of Wisconsin, Ohio and Michigan.
In February 2013, the EPA listed particular non-hazardous secondary materials as “categorical non-waste fuels” provided certain conditions are met. This final rule adds the following other treated railroad ties (OTRT) to the categorical non-waste fuel list: Processed creosote-borate, copper naphthenate and copper naphthenate-borate treated railroad ties, under certain conditions depending on the chemical treatment.
George Faison, 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: (703) 305-7652; email: faison.george@epa.gov.
In the March 21, 2011 (76 FR 15456) rule, the EPA finalized standards and procedures to be used to identify whether NHSMs are solid wastes when used as fuels or ingredients in combustion units. “Secondary material” was defined for the purposes of that rulemaking as any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, off-specification commercial chemical products or manufacturing chemical intermediates, post-industrial material, and scrap (codified in 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 in 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 in 40 CFR 241.2).
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 in 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 in 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 in 40 CFR 241.2).
Convergen uses clean manufacturing by-products to make a densified, renewable fuel pellet that closely replicates the energy, storage, and handling characteristics of coal with fewer harmful emissions. The pellets have been designated by the US EPA as a non-waste alternative fuel under the EPA’s Non-Hazardous, Secondary Material (NHSM), Alternative Fuels Program (40 CFR 241). The non-waste designation by the EPA allows our fuel to be permitted as a traditional fossil fuel replacement in most power plants. CE pellets are classified as a renewable fuel in the states of Wisconsin, Ohio and Michigan.
In February 2013, the EPA listed particular non-hazardous secondary materials as “categorical non-waste fuels” provided certain conditions are met. This final rule adds the following other treated railroad ties (OTRT) to the categorical non-waste fuel list: Processed creosote-borate, copper naphthenate and copper naphthenate-borate treated railroad ties, under certain conditions depending on the chemical treatment.
George Faison, 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: (703) 305-7652; email: faison.george@epa.gov.
| Utilities | 221 |
| Construction of Buildings | 236 |
| Site Preparation Contractors | 238910 |
| Manufacturing | 31, 32, 33 |
| Wood Product Manufacturing | 321 |
| Sawmills | 321113 |
| Wood Preservation (includes crosstie creosote treating) | 321114 |
| Pulp, Paper, and Paper Products | 322 |
| Cement manufacturing | 32731 |
| Railroads (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 |
Rule
Additions to List of Categorical Non-Waste Fuels: Other Treated Railroad Ties
A Rule by the Environmental Protection ABased on these criteria, the March 21, 2011 rule identified the following NHSMs as not being solid wastes:
The EPA is issuing final amendments to list certain NHSMs as categorical non-waste fuels in 40 CFR 241.4(a) 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 NHSM is used as a fuel and remains under the control of the generator (whether at the site of generation or another site the generator has control over) that meets the legitimacy criteria (40 CFR 241.3(b)(1));
- The NHSM is used as an ingredient in a manufacturing process (whether by the generator or outside the control of the generator) that meets the legitimacy criteria (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
- Through a case-by-case petition process, it has been determined that the NHSM 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)).
The EPA is issuing final amendments to list certain NHSMs as categorical non-waste fuels in 40 CFR 241.4(a) 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
Based on these criteria, the March 21, 2011 rule identified the following NHSMs as not being solid wastes:
- The NHSM is used as a fuel and remains under the control of the generator (whether at the site of generation or another site the generator has control over) that meets the legitimacy criteria (40 CFR 241.3(b)(1));
- The NHSM is used as an ingredient in a manufacturing process (whether by the generator or outside the control of the generator) that meets the legitimacy criteria (40 CFR 241.3(b)(3));
- Discarded NHSM has been sufficiently processed to produce a fuel or ingredient that meets the legitimacy criteria (40 CFR 241.3(b)(4)); or
- Through a case-by-case petition process, it has been determined that the NHSM 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)).
DOCUMENT DETAILS
- Printed version:
- Publication Date:
- 02/07/2018
- Agency:
- Environmental Protection Agency
- Dates:
- This rule is effective February 7, 2018.
- Effective Date:
- 02/07/2018
- Document Type:
- Rule
- Document Citation:
- 83 FR 5317
- Page:
- 5317-5340 (24 pages)
- CFR:
- 40 CFR 241
- Agency/Docket Numbers:
- EPA-HQ-OLEM-2016-0248
- FRL-9969-80-OLEM
- RIN:
- 2050-AG83
- Document Number:
- 2018-02337
DOCUMENT DETAILS
ENHANCED CONTENT
- Docket Number:
- EPA-HQ-OLEM-2016-0248
- Supporting/Related Materials:
- Summary of Public Comments and Responses for Non-Hazardous...
- Assessment of the Potential Costs, Benefits, and Other Impacts...
- EPA NHSM TWC Petition Supplemental Info CuN + CuNB Ties August...
- Meeting with Association of American Railroads (AAR)
- EPA Non-Hazardous Secondary Treated Wood Council (NHSM TWC)...
- Tim Hunt of AF&PA Call to EPA November 17, 2016
- EPA Non-Hazardous Secondary Treated Wood Council (NHSM TWC)...
- Cost Assessment for OTRT nHSM 2016 Proposal
- Letter from AFPA to EPA Administrator December 18, 2012
- Potential Use of Wood Residues for Energy Production
- See all 22 supporting documents
ENHANCED CONTENT
PUBLISHED DOCUMENT
AGENCY:
Environmental Protection Agency (EPA).
ACTION:
Final rule.
SUMMARY:
The Environmental Protection Agency (EPA) is issuing amendments to the Non-Hazardous Secondary Materials regulations, which generally established standards and procedures for identifying whether non-hazardous secondary materials are solid wastes when used as fuels or ingredients in combustion units. In February 2013, the EPA listed particular non-hazardous secondary materials as “categorical non-waste fuels” provided certain conditions are met. This final rule adds the following other treated railroad ties (OTRT) to the categorical non-waste fuel list: Processed creosote-borate, copper naphthenate and copper naphthenate-borate treated railroad ties, under certain conditions depending on the chemical treatment.
DATES:
This rule is effective February 7, 2018.
ADDRESSES:
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OLEM-2016-0248. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically at https://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the RCRA Docket is (202) 566-0270.
FOR FURTHER INFORMATION CONTACT:
George Faison, 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: (703) 305-7652; email: faison.george@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 Final Rule
B. What is the statutory authority for this final rule?
C. Does this action apply to me?
D. What is the purpose of this final rule?
E. Effective Date
II. Background
A. History of the NHSM Rulemakings
B. Background to This Final Rule
C. How will EPA make categorical non-waste determinations?
III. Comments on the Proposed Rule and Rationale for Final Decisions
A. Detailed Description of OTRTs
B. OTRTs Under Current NHSM Rules
C. Scope of the Final Categorical Non-Waste Listing for OTRTs
D. Rationale for Final Rule
E. Copper and Borates Literature Review and Other EPA Program Summary
F. Summary of Comments Requested
G. Responses to Comments
IV. Effect of This Final Rule on Other Programs
V. State Authority
A. Relationship to State Programs
B. State Adoption of the Rulemaking
VI. Costs and Benefits
VII. 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 Regulations 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
L. Congressional Review Act (CRA)
I. General Information
A. List of abbreviations and acronyms used in this final rule
AWPA American Wood Protection Association
Btu British thermal unit
C&D Construction and demolition
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 pollutant
MACT Maximum achievable control technology
MDL Method detection limit
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
OTRT Other Treated Railroad Ties
PAH Polycyclic aromatic hydrocarbons
ppm Parts per million
RCRA Resource Conservation and Recovery Act
RIN Regulatory information number
RL Reporting Limits
SBA Small Business Administration
SO2 Sulfur dioxide
SVOC Semi-volatile organic compound
TCLP Toxicity characteristic leaching procedure
UPL Upper prediction limit
U.S.C. United States Code
VOC Volatile organic compound
B. What is the statutory authority for this final rule?
The EPA is amending 40 CFR 241.4(a) to list additional non-hazardous secondary materials (NHSMs) as Start Printed Page 5318categorical non-waste fuels under the authority of sections 2002(a)(1) and 1004(27) of the Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the Clean Air Act (CAA) directs the EPA to establish standards for Commercial and Industrial Solid Waste Incinerators (CISWI), which burn solid waste. Section 129(g)(6) of the CAA provides that the term “solid waste” is to be established by the EPA under RCRA (42 U.S.C. 7429(g)(6)). Section 2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as are necessary to carry out its functions under the Act. The statutory definition of “solid waste” is stated in RCRA section 1004(27).
C. Does this action apply to me?
Categories and entities potentially affected by this action, either directly or indirectly, include, but may not be limited to the following:
| Primary Industry Category or Sub Category | NAICS b |
|---|---|
| Utilities | 221 |
| Site Preparation Contractors | 238910 |
| Manufacturing | 31, 32, 33 |
| Wood Product Manufacturing | 321 |
| Sawmills | 321113 |
| Wood Preservation (includes crosstie creosote treating) | 321114 |
| Pulp, Paper, and Paper Products | 322 |
| Cement manufacturing | 32731 |
| Railroads (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 of which EPA is aware that could potentially be affected by this action. Other types of entities not listed could also be affected. To determine whether your facility, company, business, organization, etc., is affected by this action, you should examine the applicability criteria in this rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACTsection.
D. What is the purpose of this final rule?
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 turns 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 material 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 for commercial, industrial, and institutional boilers, or if the combustion unit is a cement kiln, the CAA 112 standards for Portland cement kilns. Under CAA section 129, the term “solid waste incineration unit” is defined, in pertinent part, to mean “a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments.” 42 U.S.C. 7429(g)(1). 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 7429(g)(6). The Solid Waste Disposal Act, as amended, is commonly referred to as the Resource Conservation and Recovery Act or RCRA.
Regulations concerning NHSMs used as fuels or ingredients in combustion units are codified in 40 CFR part 241.[1] This action amends the part 241 regulations by adding three NHSMs, summarized below, to the list of categorical non-waste fuels codified in § 241.4(a):
(1) Creosote-borate treated railroad ties, and mixtures of creosote, borate and/or copper naphthenate treated railroad ties that are processed and then combusted in:
(i) 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, and
(ii) Units at major source pulp and paper mills or power producers subject to 40 CFR part 63, subpart DDDDD, designed to burn biomass and fuel oil as part of normal operations and not solely as part of start-up or shut-down operations, but are modified in order to use natural gas instead of fuel oil. The creosote-borate and mixed creosote, borate and copper naphthenate treated railroad ties may continue to be combusted as product fuel only if certain conditions are met, which are intended to ensure that such railroad ties are not being discarded.
(iii) Units meeting requirements in (i) or (ii) that are also designed to burn coal.Start Printed Page 5319
(2) Copper naphthenate treated railroad ties that are processed and then combusted in units designed to burn biomass, biomass and fuel oil, or biomass and coal.
(3) Copper naphthenate-borate treated railroad ties that are processed and then combusted in units designed to burn biomass, biomass and fuel oil, or biomass and coal.
E. Effective Date
The Administrative Procedure Act requires publication of a substantive rule 30 days or more before the effective date unless one of the following conditions in 5 U.S.C. 553(d) are met:
(1)A substantive rule which grants or recognizes an exemption or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and published with the rule.
This final rule establishing an OTRT non-waste categorical determination satisfies 553(d)(1) in that it relieves a restriction by allowing OTRTs to be combusted as non-waste rather than as waste when certain conditions are met as described below in Section III. OTRTs represent a relatively small percentage of the railroad ties in use with the majority being creosote treated railroad ties (CTRTs). When the railroad ties are taken out of service and used as fuel, there is no way to distinguish between the OTRTs and the CTRTs. In order to ensure that CTRTs mixed with OTRTs are not considered a waste, EPA is making this final rule effective immediately and providing regulatory certainty.
II. Background
A. History of the NHSM Rulemakings
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). We then published an NHSM proposed rule on June 4, 2010 (75 FR 31844), which the EPA made final on March 21, 2011 (76 FR 15456).
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 in 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 in 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 in 40 CFR 241.2).
Comments
Post a Comment