Playing by the Nonwaste Fuels Rules

Three forms of wood waste got the green light under the U.S. EPA’s nonhazardous secondary
materials rule, but the amended regulation’s impact appears narrow.
By Katie Fletcher | April 21, 2016

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Positive and Negative Sorting: At a C&D facility, employees are trained to either pick out all desirable material
(positive sorting) or to remove all material but wood fuel (negative sorting) and leave it on the belt. Both positive
and negative sorti
PHOTO:CONSTRUCTION & DEMOLITION RECYCLING ASSOCIATION

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Our nation’s primary law governing the disposal of solid and hazardous waste—the Resource
Conservation and Recovery Act—was passed by Congress in 1976 to address the problems the
U.S. faced from the growing volume of municipal and industrial waste. Since its enactment,
the programs and regulations under the statute have evolved, as have the types of waste
produced and the way they are managed and disposed of. Undergoing the most recent
evolution is the nonhazardous secondary materials (NHSM) regulatory program. In February,
the U.S. EPA finalized an amendment to add three sources of fuel to its categorical nonwaste
fuels list: construction and demolition (C&D) wood processed from C&D debris; paper recycling
residuals generated from the recycling of recovered paper, paperboard and corrugated
containers; and creosote-treated railroad ties. The ruling became effective as of March 9.

Under the RCRA, the NHSM program is a legislative outlet under which the EPA could begin to
differentiate fuels from wastes. The agency announced the regulatory program in March of
2011 to generally establish standards and procedures for identifying whether NHSMs are solid
wastes when used as fuels or ingredients in combustion. The rule was amended in February
2013 to include particular NHSMs listed as “categorical nonwaste fuels,” provided certain
conditions were met. EPA also indicated that it would consider adding additional NHSMs to the
categorical listings, and did just that in March 2014 by proposing the addition of the three
sources in the recently passed amendment.

Industry Implications
EPA finalized the amendment in an effort to make it easier to comply with the NHSM
regulations, as persons who generate or burn these NHSMs will not need to make individual
determinations on their materials regarding their waste status. Burning these NHSMs does not
require evaluation under the general case-by-case standards and procedures that would
otherwise apply to NHSM used in combustion units.

According to the NHSM regulation, if material is a solid waste under RCRA, a combustion unit
burning it is required to meet the Clean Air Act 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.
“EPA needs to make a threshold determination whether a material is a fuel or waste and that
has huge implications for our industry, because if the material is a waste then it’s really no
different from a regulatory standpoint than municipal solid waste,” says Bob Cleaves,
president and CEO of the Biomass Power Association.

MSW needs to be combusted in commercial or industrial solid waste incinerators regulated by

the Commercial and Industrial Solid Waste Incineration or CISWI rule. “If we in the biomass
industry were regulated as an incinerator, we would essentially be forced to implement and
upgrade air pollution control equipment and really transform what is a simple biomass boiler
to a waste-to-energy facility, which is a business that we’re not in. It’s a completely different
business model,” Cleaves says. “We were really pleased by this NHSM ruling because it
essentially is a very clean and simple message to those who use these materials as fuel that
they won’t be considered incinerators.”

Other than the positive regulatory implication on the industry, there is a practical one as well.
“In certain parts of the country, like in California for example, where forest biomass is
becoming harder to source because of the closure of sawmills and the like, biomass boilers
have increasingly relied upon nonforest-derived biomass materials for their feedstock,”
Cleaves says. “To be foreclosed from using these kinds of fuels would be a further challenge
for the industry.”

In its comments filed with the EPA for the Clean Power Plan, the BPA urged the EPA to clarify
in the final plan that nonforestry cellulosic materials—like urban wood, wood-derived C&D
debris and railroad ties—be specifically included in the definition of “waste-derived
feedstocks,” since these organic materials do not cause land-use changes and do not deplete
carbon stocks. Waste under the CPP refers to materials that do not have high value in the
marketplace and would otherwise probably be discarded and landfilled. The three added
materials to the NHSM rule—C&D wood, railroad ties and paper recycling residuals—are these
types of materials. “One of the important takeaways from the NHSM rule is EPA is aligning its
rules under the Clean Air Act and federal solid waste laws with the goals of the Clean Power
Plan, which, among other things, have encouraged the use of certain biogenic fuels as a way to
mitigate climate change,” Cleaves says.

Defined as waste-derived feedstock in the CPP, these new material sources are now considered
nonwaste fuels under the NHSM rule. Apart from avoiding methane emissions when the
material is landfilled, Cleaves states there are strong environmental reasons to use this
material in biomass boilers, and that “one of them is clearly just more efficient combustion.”

Overall, EPA’s amendment to add these three materials is a positive to the industry, but there
are many who can’t take advantage of the ability to combust these new material sources, as
they are listed as categorical nonwaste fuels only if certain conditions are met. Prior to
finalizing the rule, EPA opened up a comment period and various stakeholders in the biomass
industry responded. Some of the suggested changes were reflected in the final amendment
ruling, but others were left out.

Tie Terms
According to the Association of American Railroads, the U.S. Class I railways maintain nearly
490 million crossties, which does not even account for the more than 500 regional and short
line railroads in the U.S. Millions of these railroad ties are replaced every year in the U.S.—
enough to fill an entire football field 70 stories high, according to industry estimates. One-
third of these used ties are ground up for landscaping mulch, with the remainder sold as
biofuel for creating electricity and heat. According to BPA, its members alone use around
815,000 tons of railroad ties per year, distributed among 13 facilities in seven states.

Most of the energy recovery with crossties is conducted through three parties: the generator of
the crossties (railroad or utility); the reclamation company that sorts the crossties, and, in
some cases, processes the material received from the generator; and the combustor as third-
party energy producers. One prominent reclamation company providing the link between the
railroad and the end user is National Salvage & Service Corp. Vice President Curtis Schopp says
that each year, there are up to 23 million new ties installed, about 15 to 17 million of which
are sorted for various uses. National handles around 7 million ties with about 1.5 million going
to landscaping, approximately 200,000 landfilled and the rest turned into fuel.

While it’s clear that railroad ties are available for use as fuel, and its inclusion as a nonwaste
fuel is positive, it’s not without limitation. One of the legitimacy criteria BPA focused on in its
comments to the EPA was the designed-to-burn criteria that requires NHSM contaminants to be
at levels comparable to, or less than, those in the traditional fuel that the unit is designed to
burn.

In the final ruling, the addition of creosote-treated railroad ties (CTRTs) requires that they are
processed and then combusted 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, and units at
major source pulp and paper mills or power producers subject to 40 CFR part 63, subpart
DDDDD that combust CTRT and had been designed to burn biomass and fuel oil, but are
modified (e.g. oil delivery mechanisms are removed) in order to use natural gas instead of fuel
oil, as part of normal operations and not solely as part of start-up or shut-down operations.

BPA and others commented that treating a railroad tie as a fuel if burned in a boiler capable of
burning fuel oil, but waste when burned in the same exact boiler not capable of burning fossil
fuels, is not defensible as a matter of public policy. Some biomass boilers converted from fuel
oil to natural gas; others converted from coal to biomass; and others never had the capability
of cofiring with any fossil fuels. The fuel oil restriction eliminates 69 percent of the facilities,
and as much as 78 percent of the fuel currently available for energy conversion. Biomass
producer ReEnergy Holdings LLC stated in its comments that the limiting boiler configuration
would disqualify the company from accepting nearly 85 percent of its current CTRT fuel
supply.

Also in BPA’s comments, biomass facilities that rely on the use of CTRT’s are located in states
that have mandatory renewable portfolio standard programs (RPS). Michigan and California
have RPS programs designed to promote biomass and penalize the use of fuel oil. “The way
that EPA treated railroad ties was a little disappointing to us,” Cleaves says. He adds that the
ruling limits some, and it may even be a possibility facilities install a fuel oil gun simply to
show the EPA they have the ability to use a fuel oil. Cleaves says that for facilities that do not
meet the combustion criteria, he believes they can and will petition the EPA on a case-by-case
basis to have CTRTs accepted at their facilities.

Schopp doesn’t believe it’s likely that plants will change out their boilers. “It’s just a matter
of whether this fuel is something they can consider in their fuel mix—the cost is prohibitive,”
he says. Schopp adds that the ruling aids the company when promoting the fuel. “It lifts that
cloud,” he says. “However, with the oil nozzle, it has affected some folks. It has greatly cut
the field of perspective plants down and made it harder to find new ones to get permitted.”

Besides the limitation on boiler configuration, some are disappointed that only creosote-
treated ties were included. According to the RTA, in 2013, 51 percent, or about 7.7 million tie
purchases were creosote-treated. Creosote-borate ties made up 38 percent, or 5.7 million.
According to Schopp, borate began being added in the past few years to some railroad tie
pretreatment processes to aid in longevity of the preservative.

An Aug. 21, 2015, letter from the Treated Wood Council requested that the agency quickly act
on a categorical nonwaste determination on creosote-borate, copper-naphtenate and copper
naphtenate-borate-treated railroad ties. TWC indicated in the letter that these types of ties
are increasingly being used as alternatives to creosote-treated ties, and that the ability to
reuse the ties is an important consideration in rail tie purchasing decisions. According to
EPA, these three tie types are candidates for categorical nonwaste listings and the agency
expects to begin development of a proposed rule under 40 CFR 241.4(a) regarding these
treated ties in the near future.

There is some activity regarding the combustion of used rail ties by removing the
preservatives. The Coalition for Sustainable Rail in collaboration with the Natural Resources
Research Institute at the University of Minnesota-Duluth has performed lab-scale torrefaction
tests on used railroad ties in pursuit of removing the preservatives through the torrefaction
process. CSR is planning to run an industrial-scale test of railroad tie torrefaction within the
year. “Future pretreatment options CSR and NRRI are pursuing may impact the current ruling
and open up their use in other combustion systems,” says Don Fosnacht, associate director
with NRRI.

Lengthening the List

Beyond railroad ties, the finalized amendment included C&D wood processed from C&D debris
according to best management practices. The exemption essentially allows the markets to
continue as they have been, according to William Turley, executive director of the
Construction & Demolition Recycling Association. “There was some trepidation among end
users on whether this material would get the exemption,” Turley says. “I think the end users
to boilers are assured now that as long as they follow the steps outlined in the rule, the
market is there and will continue to function as it has in the past.”

Turley says that for the most part, the best management practices outlined by the EPA in the
amendment ruling are aligned with what the industry was already doing. These practices
include sorting by trained operators who exclude or remove the following materials from the
final product fuel: nonwood materials, and wood treated with creosote, pentachlorophenol,
chromated copper arsenate (CCA), or other copper, chromium or arsenical preservatives. Best
management practices must also be in place for positive and negative sorting, training and
written certification. “Our only real change there is the training of the operators be recorded
and updated on a regular basis,” Turley says.

EPA also included that only de minimis quantities inherent to process limitations may remain
of painted wood. “It’s important EPA recognized that we are not able to get 100 percent of
everything—CCA or painted wood—out of the stream,” Turley says. “In a 10,000-pound pile, a
couple scraps are not going to be a problem. The de minimis part is in there with no set level
because they know we’re trying to get it out.”

There are a few states that ban the use of C&D wood as a fuel product, including New
Hampshire and Massachusetts. Although Turley doesn’t think EPA’s ruling will have much effect
on states, treatment of C&D wood, he is hopeful that the ruling will eventually help expand its
use across state RPS programs once the market for biomass improves. “Now that these states
can—with a good, clean conscious—say EPA has examined this and exempted it, it can only help
and remind the states this is a clean biomass product, with a high-Btu content,” Turley adds.
Minnesota-based Koda Energy LLC has burned some C&D debris in the past. General Manager
Stacy Cook says the addition of this material in the amendment is helpful, but when it comes
to the other materials, unless a plant was already using the railroad ties or it was already set
up to use the recycled paper material, “it really didn’t open up the capability for anyone else
to do so.” The language in the final ruling reads that paper recycling residuals generated from
the recycling of recovered paper, paperboard and corrugated containers and combusted by
paper recycling mills whose boilers are designed to burn solid fuel are considered a NHSM.

According to Cook, EPA lacked data to support the combustion of recyclable paper in anything
other than a recycled paper plant that had a boiler already consuming wet recycle paper
material. EPA identified 15 to 20 facilities in the U.S. that were already permitted to burn
recycled paper material, and they were other paper recyclers. “It really limited the
application of additional fuels to plants that were pretty much just those already doing it,”
Cook says. “It didn’t really help expand the use of it.” He adds that on its face the NHSM ruling
sounds like a wonderful thing, but its application is limited. “It was less helpful than it could
have been, but it’s still a step in the right direction.”

Author: Katie Fletcher

Associate Editor, Biomass Magazine
701-738-4920
kfletcher@bbiinternational.com