ASSESSMENT OF THE POTENTIAL COSTS, BENEFITS,

AND OTHER IMPACTS

FOR THE

FINAL RULE

CATEGORICAL NON-WASTE DETERMINATION FOR SELECTED NON 

HAZARDOUS SECONDARY MATERIALS (NHSMs): 

CONSTRUCTION AND DEMOLITION WOOD, RECYCLING PROCESS RESIDUALS, 

and CREOSOTE-TREATED RAILROAD TIES

Economics and Risk Analysis Staff

Office of Resource Conservation and Recovery

U. S. Environmental Protection Agency

1200 Pennsylvania Ave., N. W.

Washington, DC 20460

May 22,, 2015
2

INTRODUCTION

Background:

Section 129 of the Clean Air Act (CAA) directs EPA to promulgate regulations to control 

emissions of nine specified pollutants from “solid waste incineration units.” EPA did so in 

December 2000 with the publication of the final Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste 

Incineration Units (the “CISWI Rule”). In September 2004, under section 112(d) of the CAA, 

the Agency promulgated the National Emissions Standards for Hazardous Air Pollutants for 

Industrial, Commercial, and Institutional Boilers and Process Heaters (the “Boilers Rule”). This 

rule established Maximum Achievable Control Technology (MACT) standards for this source 

category. Units regulated under section 129 cannot be subject to any rule promulgated under 

section 112.1

Responding to a petition for reconsideration, EPA amended the CISWI Rule in 

September 2005 with a rule that revised definitions for “solid waste,” “commercial or industrial 

waste,” and “commercial and industrial solid waste incineration unit” (the “CISWI Definitions 

Rule”). As part of the CISWI Definitions Rule, EPA made a distinction between solid waste 

incinerators and boilers, characterizing the former as units that are designed and operated to 

discard materials through high temperature combustion. However, EPA excluded from the 

definition of a solid waste incinerator those units designed to recover energy for “useful purposes 

such as steam generation or process heating.”

In July 2007, the Court of Appeals for the District of Columbia Circuit vacated and 

remanded to EPA both the CISWI Definitions Rule and the Boilers Rule. In vacating the 

Definitions Rule, the Court noted that, despite the potential reasonableness of the functional 

distinction between boilers and incinerators, the CAA is unambiguous in its requirement that 

EPA regulate as a solid waste incineration unit any commercial or industrial incinerator that 

combusts any solid waste material, regardless of whether the waste is burned as a “fuel.” The 

Court also concluded that EPA erred in excluding from the CISWI Definitions Rule units that 

combust solid waste for the purposes of energy recovery and including these units in the Boilers 

Rule. 

In partial response to the Court’s decision, EPA published the Non-Hazardous Secondary 

Materials (NHSM) Rule on March 21, 2011. Amendments to this rule were published in the 

Federal Register on February 7, 2013. These amendments provided clarification on certain 

issues on which EPA received new information, as well as specific targeted revisions. In 

addition, these amendments listed several NHSMs as categorical non-wastes when used as fuels. 

The Agency also indicated that we would consider adding additional materials to the categorical 

listings as more information became available. 

Today’s action adds three materials to the list of categorical non-waste fuels: construction 

and demolition (C&D) wood according to best management practices, paper recycling residuals

 1 However, sources have the option to switch back and forth between CAA sections 112 and 129 applicability.
3

(PRRs), and creosote-treated railroad ties (CTRTs). These materials are described more fully 

below.

Need for Regulatory Action:

Today’s categorical non-waste determination for selected NHSMs is an ongoing response 

to the Court’s decision that required a clear determination of the status of these materials when 

combusted. 

Purpose of this Document:

Because the regulatory action is definitional only, any indirectly associated costs or 

benefits would not occur without the corresponding implementation of the relevant CAA rules. 

However, in an effort to ensure rulemaking transparency, this assessment has been prepared that 

examines the potential scope and direction of these indirect impacts, for both costs and benefits. 

SUMMARY OF THE FINAL RULE AND ALTERNATIVES

Final Rule:

The March 2011 NHSM final rule, as amended in February 2013, established standards 

and procedures to be used to identify whether non-hazardous secondary materials are solid 

wastes when used as fuels or ingredients in combustion units. This rule also listed various 

materials that are not solid wastes provided certain conditions are met. These materials are 

known as “categorical” non-waste fuels. Today’s action adds three additional materials to the 

list of categorical non-waste fuels: (1) construction and demolition (C&D) wood processed from 

construction and demolition debris according to best management practices; (2) 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; and (3) 

creosote-treated railroad ties that are processed and then combusted in units designed to burn 

both biomass and fuel oil. 

Regulatory Alternatives:

Consistent with Executive Order 12866 requirements and Agency guidance, this 

assessment briefly considers two regulatory alternatives, identified below as Option 1 and Option 

2. These options are examined for comparative purposes only and should not be considered part 

of the final rule.

 

Option 1: Selected NHSMs Defined as RCRA Solid Waste:
4

Under this Option, C&D wood and PRRs would be defined as RCRA solid wastes, while 

allowing for non-waste consideration using the previously established petition process.2 Under 

this option, without a successful petition, these materials, when burned, would be required to be 

managed under CAA section 129 standards, or disposed of in an appropriate landfill. 

Option 2: Expanded RCRA Management Requirements:

Rather than listing the selected NHSMs as categorical non-wastes (subject to identified 

management requirements), another alternative regulatory option may be to finalize expanded 

management requirements for, or associated with, the fuel use of these materials. These 

requirements would be incorporated into the contingencies and best management practices for 

non-waste determinations for specific non-hazardous secondary materials when used as a fuel.

Such requirements may include one or more of the following: transportation 

restrictions/requirements, storage limitations/controls, specific container or material labeling, 

enhanced materials processing, expanded training, material sampling and analysis, and 

comprehensive recordkeeping and reporting. These requirements would, where applicable, be 

incremental to any current baseline management requirements for the three materials, whether 

currently burned as a solid waste or non-waste.

Non-Regulatory Alternatives:

Non-regulatory alternatives to this final action may include the following: no action, 

expanded voluntary training and educational programs, and working with the states to implement 

targeted generation and use fees/taxes at the state level that are designed to modify behavior. 

The purpose of this action is to establish a categorical non-waste determination for the 

three selected materials (C&D wood, PRRs, and CTRTs), and to provide for greater regulatory 

clarity and certainty. In addition, this rule seeks to help remove or reduce cost and liability issues 

potentially associated with the combustion of these materials for energy recovery, while 

maintaining appropriate emission standards to ensure effective protection of human health and 

the environment. Thus, non-regulatory alternatives would not adequately serve the purpose of 

this action.

SUMMARY OF THE AFFECTED SECONDARY MATERIALS

As noted above, the Agency is listing three additional non-hazardous secondary materials 

as “categorical” non-waste fuels provided certain conditions are met. Categorical non-waste 

fuels do not need to be evaluated under the general standards and procedures that would 

otherwise apply to such materials used in combustion units. The three additional materials are:

• construction and demolition (C&D) wood processed from construction and demolition 

debris according to best management practices; 

 2 CTRTs are recognized as a solid waste fuel in the baseline.
5

• paper recycling residuals (PRRs), 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 fuels; and,

• creosote-treated railroad ties that are processed and then combusted in units designed 

to burn both biomass and fuel oil. 

This section provides summary information concerning these non-hazardous secondary 

materials.

Construction and Demolition (C&D) Wood:

C&D wood from construction activities results from cutting wood down to size during 

installation or from purchasing more wood than a project ultimately requires. C&D wood from 

demolition activities results from dismantling buildings or removing materials during 

remodeling. Construction materials are produced by NAICS 236: Construction of Buildings. 

Demolition materials are produced by NAICS 238910: Site Preparation Contractors. 

While contractors may segregate C&D materials at the building site, the more common 

practice (especially at demolition sites) appears to be to send co-mingled debris to independent 

C&D recycling or processing facilities. These facilities separate the wood scraps from metals, 

plastics, non-combustibles, and other undesirable items. Wood scraps may be picked out of the 

co-mingled debris (positive picking), or the unwanted materials may be removed from the debris 

stream (negative picking). In both scenarios, steps are taken to remove lead-based paint and 

wood treated with chromated copper arsenate (CCA). C&D wood reclaimed from construction 

activities is generally unused and untreated, thereby falling under the definition of “clean 

cellulosic biomass.” C&D wood reclaimed from demolition activities is, under normal 

circumstances believed to be sufficiently processed to meet the legitimacy criteria. Processing 

facilities grind the recovered wood to a specified size and deliver the material to energy recovery 

facilities. 

C&D wood that has been picked, sorted, and processed for energy recovery has an asfired energy content, on average, ranging from approximately 6,640 Btu/lb to 6,800 Btu/lb.3

 

Wood residues may also be converted into gaseous components (carbon monoxide, hydrogen, 

methane, and other inert gases) through gasification. This process is designed so the biomass 

can be directly converted into the intermediate products of gas and charcoal, which can be used 

for further energy recovery.4

 3

EPA-HQ-RCRA-2008-0329-1946-A1, pg 63-65 estimates 6,800 Btu/lb. Appendix A of the April 26, 2013 

submittal from Susan Bodine, on behalf of BPA and CMRA, indicates an average energy content of 6,640 Btu/lb 

(EPA-HQ-RCRA-2013-0110). 4 Natural Resources Institute (NRI). “What do we mean by Gasification?” Undated. Available at: 

http://www.nri.org/projects/biomass/conference_papers/gasification_process.pdf
6

The USDA estimates that approximately 30 percent of all C&D wood originates in 

construction activities while about 70 percent is from demolition activities.5 C&D activities 

generate an estimated 33 to 49 million tons of scrap wood each year, with about 50 percent 

considered to be of acceptable size, quality, and condition to be considered available for general 

recovery.6 Available information indicates that as much as 100 percent of all C&D wood 

destined as a boiler fuel may go off-site.7,8 Comprehensive information on the quantity of 

processed C&D wood currently combusted for energy recovery is unavailable. However, the 

combustor survey database developed by EPA for the 2010 proposal of the Commercial and 

Industrial Solid Waste Incinerator (CISWI) standards and the Industrial Boilers Maximum 

Achievable Control Technology (MACT) standards appears to indicate that the sources surveyed 

for these rules may combust anywhere from 4.7 million tons to 11.2 million tons of C&D wood 

per year (Appendix B).

9,10 

Paper Recycling Residuals (PRRs):

Paper Recycling Residuals (PRRs) are paper fibers resulting from the recycling process 

that are unusable for making new paper and paperboard products primarily due to impurities or 

fibers too small for the recycling process. As a secondary product derived from the processing 

of post-consumer paper and paperboard, this material is an integral part of the on-site industrial 

process at paper recycling mills.

Some processing occurs before burning PRRs for energy recovery.

11 Processors 

generally use a slotted screen to select cellulosic fibers that have adequate heating value and are 

considered too small or inadequate for paper production. Some plants will then use hydraulic 

presses to squeeze unwanted moisture out of the residuals before shredding the material to the 

 5 McKeever, David B. 2002, "Inventories of Woody Residues and Solid Wood Waste in the United States, 2002," 

USDA Forest Service.

6 U.S. EPA, Office of Resource Conservation and Recovery. February 3, 2011. “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.” EPA-HQ-RCRA-2008-0329-1811. 7 U.S. EPA, Office of Air Quality Planning and Standards, Draft combustor database in support of the revised 

CISWI Rule, April 14, 2009 and U.S. EPA, Office of Air Quality Planning and Standards, Draft combustor database 

in support of the revised Boilers Rule, March 20, 2009.

8 The Agency recognizes that there are currently large numbers of wood-fired hydronic heaters operating throughout 

the country. These are generally on-site units designed to burn dry, seasoned clean biomass wood and mostly serve 

households, small businesses, or small government facilities. Some of these units are known to burn construction 

debris, the status of which is undetermined. 9 United States Environmental Protection Agency (EPA). 2009, Combustor survey database in support of the 2010 

proposal of the Commercial and Industrial Solid Waste Incinerator (CISWI) standards and the Industrial Boilers 

Maximum Achievable Control Technology (MACT) standards, April 2009. 10 The categories of wood material in the combustion database that may contain C&D building wood include (1) 

adulterated wood; (2) painted or varnished wood; (3) plywood, particleboard (containing glues or resins); (4) treated 

wood; (5) treated wood and cardboard; (6) unadulterated wood; and (7) unadulterated lumber. Also note that some 

of these categories could be disaster debris, land clearing debris, or biomass (as defined in the three biomass 

materials characterization papers) rather than construction and demolition building debris. 11 American Forest & Paper Association, et al., public comments submitted on the Rule to Categorize NonHazardous Secondary Materials That Are Solid Waste (EPA-HQ-RCRA- 2008-0329) and Commercial and 

Industrial Solid Waste Incineration Units: Reconsideration and Proposed Amendments (EPA-HQ-OAR-2003-0119). 

Comment ID EPA-HQ-RCRA-2008-0329-1946-A1. February 21, 2012. P.55
7

optimal size for combustion.12 Some plants may also apply a drying process to these residuals 

before firing them. These PRRs are then conveyed to the boiler for mixing with other biomass.13 

Our evidence indicates that PRRs are handled promptly and contained in storage units (or 

covered buildings) along with traditional fuels.

Once ready for the boiler, the as-fired heating value of PRRs normally averages about 

3,700 Btu/lb (or on a dry basis, averages 9,100 Btu/lb).14 While this is lower than the general 

guideline of 5,000 Btu/lb, as fired,

15 the Agency has previously stated that flexibility exists for 

facilities with energy recovery units that use NHSMs as fuels with an energy content lower than 

5,000 Btu/lb. Considering the relatively low heating value of this material (i.e., <5,000 Btu/lb on 

a wet basis), a facility using PRRs as a supplementary fuel in an energy recovery unit would 

normally first assess the cost-effectiveness of this action. Factors identified by the Agency in the 

March 2011 rule that may indicate a material has meaningful heating value even when the 

heating value of the material is less than 5,000 Btu/lb included the following: anticipated cost 

savings from avoided purchase of traditional fuels (primarily coal or other biomass), avoided 

disposal costs, whether the PRR material could self-sustain combustion, and/or whether the 

operation produces energy that could be sold for a profit. 

The industry has noted that many paper recycling mills with solid fuel boilers are 

designed to burn PRRs, with each mill optimizing its operation around boiler design. Typical 

boilers used include stoker fired and fluidized bed combustion, which often have over-fire and/or 

under-grate air that assists in the efficient burning of wetter fuels. This allows paper recycling 

mills to burn clean cellulosic biomass fuels, such as hog fuel and bark, which is the primary fuel, 

as well as PRRs, that have varying degrees of moisture content. Materials fed to the boiler that 

are too dry can cause combustion temperatures to become too hot, requiring operational 

adjustments. Consequently wet materials are handled well in these boilers, leading to fewer 

temperature swings and minimized boiler tuning adjustments. The industry has also noted that 

PRRs are analogous to the primary fuels (hog fuel and bark), used in solid fuel boilers at paper 

recycling mills in that they both have high moisture content, usually > 40 percent and can have 

Btu values below 5,000 Btu/lb, as fired.

Paper recycling facilities are estimated to generate between 450,000 and 600,000 tons of 

PRRs (including old corrugated cardboard) per year (Appendix B).

16,17 These values reflect the 

residuals generated by the initial screening process (i.e., to remove metals and other materials), 

materials that do not break down during processing (e.g., paper treated to repel water), and fibers 

 12American Forest & Paper Association, et al., public comments submitted on the Rule to Categorize NonHazardous Secondary Materials That Are Solid Waste (EPA-HQ-RCRA-2008-0329) and Commercial and Industrial 

Solid Waste Incineration Units: Reconsideration and Proposed Amendments (EPA-HQ-OAR-2003-0119). Comment 

ID EPA-HQ-RCRA-2008-0329-1946-A1. February 21, 2012. P. 55 13 Gavrilescu, D. “Energy from biomass in pulp and paper mills.” Environmental Engineering and Management 

Journal, Vol. 7, No. 5, 537-546. September/October 2008. P. 542 14 See AF&PA Comments, p 62, to Docket document ID: EPA-HQ-RCRA-2008-0329-0871. 15 76 FR 15522 16 Price, Jason, Kase, W., and E. Reker, October 26, 2012. Generation, Management, and Processing of Paper 

Processing Residuals. Memo to Tab Tesnau, U.S. EPA from Industrial Economics, Inc. EPA-HQ-RCRA-2008-

0329-2007. 17 Note: These data are not for the most recent year and the amounts are likely to have changed with the increase in 

recycling.
8

too small to be re-used. There are no definitive data on what portion of this material is old 

corrugated cardboard, but a broad array of types of recovered fiber, such as old magazines, old 

newsprint and office paper, are increasingly used at paper recycling mills. 

Approximately 30 percent of the total generation of PRRs generated (135,000 tons to 

180,000 tons) are burned for fuel value across 15 to 20 different pulp and paper mills.18 For the 

mills capable of burning PRRs on-site (i.e., their boilers are designed to burn solid fuel), 55 to 

100 percent of the PRRs generated are burned and may represent between 20 to 25 percent of the 

total solid fuel burned. Of the 30 percent of PRRs burned as fuel, no more than five percent are 

estimated to be burned off-site.19 For the PRRs burned off-site, other than to those paper 

recycling mills within the industry, they appear to be used to supplement other fuels burned at 

commercial cogeneration facilities.

Creosote-Treated Railroad Ties (CTRTs):

Railroad crossties that have been removed from service and are processed for fuel are the 

primary source of CTRTs. These crossties are overwhelmingly comprised of North American 

hardwoods that have been treated with creosote. As a wood preservative, creosote is primarily 

used for the treatment of railroad ties and remains the preservative of choice by U.S. railroads 

due to durability, cost effectiveness, and sustainability. Creosote is a by-product of coal tar

distillation, and coal tar is a by-product of making coke from coal. Depending upon railroad 

maintenance operations, anywhere from 13 million to as many as 20 million20 crossties may be 

removed from service each year (Appendix B). About one third of these crossties are used for 

landscaping, while the majority of the rest are used for energy recovery. Only a small percentage 

of crossties are landfilled each year. 

Because of their high energy content,

21 processed CTRTs are beneficially used as an 

alternative to traditional fuels for heat and energy recovery in a wide variety of different unit 

types and industrial sectors. These may include units designed specifically to burn crossties, 

industrial wood fired boilers, utility boilers, or cement kilns. The beneficial use of the wood in 

crossties as a fuel substitute is considered to be carbon neutral. As a result, for each tie burned 

for energy recovery, only the creosote portion of the tie is considered to be a fossil fuel. Thus, 

burning of the tie results in the addition of approximately 39 pounds of carbon dioxide into the 

atmosphere, compared to approximately 288 pounds which would result from burning a quantity 

of coal of equal energy.22 

 18 Although there are over 100 paper mills across the U.S., only 15 to 20 mills have the capability to utilize solid fuel 

in their boilers; the majority of mills’ boilers use natural gas and thus, PRRs generated in their processes are 

typically landfilled.

19Price, Jason, Kase, W., and E. Reker, October 26, 2012. Generation, Management, and Processing of Paper 

Processing Residuals. Memo to Tab Tesnau, U.S. EPA from Industrial Economics, Incorporated. . EPA-HQRCRA-2008-0329-2007. 20 Smith, Stephen and Chris Bolin. Feb. 18, 2010. Creosote-Treated Ties End-of-Life Evaluation (Used for the highend estimate). 21 The energy value of one tie is approximately equal to that of 125 pounds of coal (Source: see Smith and Bolin). 22 Smith, Stephen and Chris Bolin. Feb. 18, 2010. Creosote-Treated Ties End-of-Life Evaluation. 
9

The energy recovery market for crossties is dominated by third party energy producers 

who generally collect and process the ties prior to selling the material for fuel. This processing of 

crossties meets the definition of processing in 40 CFR 241.2. Finally, CTRTs were found to 

mostly contain contaminants at levels comparable to or lower than those in traditional fuel(s) 

used in equivalent units.23 No other creosote-treated wood (i.e., non-railroad ties) is included in 

this final rule. 

GENERAL APPROACH

Introduction

This assessment evaluates the general scope and direction of impacts potentially 

associated with this rule. The assessment first considers the regulatory baseline, followed by an 

examination of the potential indirect incremental cost impacts (positive or negative) to burners. 

We also briefly discuss indirect market adjustments potentially stimulated by this action. 

Finally, we present a qualitative consideration of benefits. The approach and key options are 

considered.

As previously discussed, all impacts associated with this action, aside from minor costs 

of reading and understanding the rule, are not realized until regulated entities apply the 

definitions established in this rule to the management of these materials for fuel under regulatory 

requirements established under sections 112 and/or 129 of the CAA. 

The findings discussed in this assessment should be used only to inform the reader as to 

the potential magnitude and direction of the indirect impacts that may occur in response to the 

implementation of the categorical non waste determinations established in this rule. The 

evaluation of social costs and net welfare potentially resulting from this action is beyond the 

scope of this assessment.

Baseline Determination 

Proper baseline determination is the first step in the assessment of impacts. The baseline 

reflects the behavior that affected entities would be expected to display in the absence of the 

proposed rule. By definition, the baseline assumes no regulatory change, thus it has no associated 

incremental costs, cost savings, economic impacts, or environmental/health benefits/disbenefits. 

The baseline serves as a reference point from which the incremental impacts of the final rule can 

be estimated. Once the baseline is determined, we can estimate how the potentially affected 

CAA section 112 or section 129 units may manage the selected non waste fuel materials in 

response to the proposed RCRA rule. 

• Based on readily available data, we have estimated baseline burn rates for the 

affected materials, plus additional quantities potentially available for use as a fuel. 

Anywhere from 22.6% to 55.2% of all C&D Wood potentially available for 

 23 See Preamble to the Final Rule: Table 3 – Contaminant Ranges in Traditional Fuels & CTRT.
10

energy recovery is currently being burned as a fuel. Thus, anywhere from 44.8% 

to 77.4% of all potential fuel-value C&D Wood remains available for energy 

recovery. For paper recycling residuals, we estimate anywhere from 25.0% to 

44.4% of all potential fuel-value PRRs are currently burned for energy recovery, 

leaving a maximum of anywhere from 55.6% to 75.0% of all PRRs potentially 

available for diversion to fuel use, depending upon PRR boiler design.24 

Approximately 62%of creosote-treated railroad crossties removed annually are 

currently burned for fuel. The Association of American Railroads indicates that 

as much as 67% of all CTRTs are suitable for use as a fuel. Thus, we assume that 

an additional 5% of all CTRTs are available for use as a fuel. Appendix B

presents more details on these estimates, and identifies all sources. 

C&D Wood available for fuel use, but that is currently not burned is assumed to be sent 

to C&D landfills, while potential fuel-value PRRs generated on-site that are not burned on-site 

are assumed to be sent off-site to an MSW landfill.

25 CTRTs of potential fuel value that are not 

burned in the baseline are assumed to be used primarily as legacy ties.26

Impacts Assessment Methodology

This assessment considers two alternative approaches27 to assessing the indirect impacts 

potentially associated with the final rule. We first examine the potential impacts using a simple 

engineering combustion cost comparison between CAA section 112 and section 129 units. This 

difference represents the cost savings from potentially avoided incremental upgrade costs 

required to move from CAA section 112 to section 129 standards.28 Alternatively, this

difference may roughly represent the potential incremental cost savings of modifying a unit to 

burn under CAA section 112 standards rather than CAA section 129 standards. Appendix A

presents more details on data used for this burner comparative cost assessment. 

Our second approach is presented as a simple assessment of the market adjustments

potentially associated with increased fuel use of the selected materials. These market 

adjustments may occur in response to reduced waste determination needs, plus the enhanced 

regulatory clarity and certainty provided by the rule, as proposed. Appendix B presents full 

details on data and assumptions that are applied for the market adjustment assessment.

 24 This is a maximum expanded fuel-use estimate that does not take into account the on-site limitation or potential 

engineering restrictions and design limitations potentially associated with the baseline boiler universe at PRR 

facilties currently not burning PRRs for fuel. 

25 We recognize that a very small portion of PRRs are sent off-site for use as a supplementary fuel in other facilities 

capable of burning this low-energy material. 26 Railroad legacy ties are those that are used or stored along the railroad right-of-way. 27 This is not to be confused with the two alternative regulatory options that are examined for this assessment only 

(i.e., not in the Proposal). 28 This may depend upon the current baseline status of units exclusively burning CTRTs prior to the effective 

implementation date(s) for the associated rules.
11

FINDINGS

Cost and Economic Impacts:

Introduction:

This section presents estimated cost impacts on a combustion unit basis for burners 

operating under CAA section 112 versus section 129 requirements. We also briefly examine the 

potential adjustments that may occur in the selected materials markets in response to the rule. 

Potential burner impacts are examined under the final approach and two alternative regulatory 

options: Option 1 - Selected NHSMs Defined as RCRA Solid Waste, and Option 2 - Expanded 

RCRA Management Requirements. These options are more fully described above under 

“Regulatory Alternatives.” 

Lastly, in this section we briefly examine the findings associated with C&D certification, 

and other potential impacts. As previously discussed, this assessment is presented for general 

informational purposes only, reflecting the potential indirect impacts of this action as part of the 

Agency’s larger rulemaking system that encompasses this rule plus the associated final rules 

recently promulgated under sections 112 and 129 of the CAA. 

Estimated Impacts to Burners:

This section examines the representative average per unit cost differential for combustors 

operating under CAA section 112 requirements versus CAA section 129 requirements. Without 

the final rule, this cost differential would roughly reflect the average per unit cost impact for 

burners currently operating under section 112 requirements to upgrade to meet the required 

section 129 standards, depending upon facility baseline status and material(s) burned (and 

planned to be burned). With this rule, the differential may reflect the avoidance of these 

anticipated costs. For current section 129 burners, this difference may roughly reflect the 

potential annual per unit cost savings associated with O&M and design modifications necessary 

to meet the (less stringent) section 112 standards. Once again, this would be dependent upon 

many baseline conditions, including which NHSMs are currently burned, and future fuel use 

plans or needs. This section only considers potential cost impacts on a per unit level. Impacts at 

the facility level29 and aggregate nationwide impacts are not assessed.

Final Rule

Facilities currently burning only CTRTs in CAA section 129 units, who had planned to 

continue burning these materials in the same unit(s), may experience cost savings should they 

choose to modify affected combustion unit(s) to meet the CAA section 112 standards. In this 

case, the unit-level cost savings are estimated, on average, to be approximately $266,000 per 

year (Appendix A). This would reflect an avoided upgrade cost if affected units are currently 

 29 A facility may operate one or more combustion units.
12

operating under CAA section 112 standards.30 Facilities currently burning C&D wood and PRRs 

as a non-waste may also experience some cost savings associated with avoided case-by-case 

waste determinations, documentation, and recordkeeping.

31 

Regulatory Options

Option 1: Selected NHSMs Defined as RCRA Solid Waste:

Under this option, C&D wood and PRRs would be RCRA solid wastes, while allowing 

for a non-waste determination using the previously established petition process. In this case, 

$266,000 would be the average annual per unit cost increase for CAA section 112 boilers 

currently burning these materials who wish to pursue the necessary upgrades to meet CAA 

section 129 standards. If these facilities would present a petition to establish the material as a 

non waste, and this petition was successful, the total cost is estimated at just over $10,000 per 

submission.32 Based on the materials burned, a successful petition would allow a facility to 

avoid the $266,000 per unit upgrade cost. 

Option 2: Expanded RCRA Management Requirements:

Contingent upon regulatory authority and legal feasibility, additional RCRA contingent 

requirements above and beyond the contingencies could be considered as a regulatory option. 

These may include manifesting, transportation restrictions, storage limitations/controls, specific 

container or material labeling, enhanced material management and handling training, material 

sampling and analysis, and comprehensive recordkeeping and reporting. A regulatory alternative 

that required one or more of these material-specific requirements would likely result in increased 

costs to the regulated community. Under this alternative, such costs would be weighed against 

benefits to human health and the environment expected to result from such requirement(s). 

Under this option, the handlers of the affected material(s) could be expected to compare the costs 

of alternative management methods (e.g., MSW disposal, CAA section 129 incineration upgrade 

needs) to the increased costs associated with the new fuel source requirements. Should the 

regulated community decide that alternative material management methods are less expensive 

than the new fuel-source requirements, some or all of this material may be diverted away from 

boilers and the supplementary fuel value would be lost.

Potential Market Adjustments:

This rule, implemented in conjunction with the existing boiler and CISWI final rules, will 

provide increased regulatory certainty and management clarity for the selected materials. This 

increased certainty may stimulate increased energy recovery use for one or more of these 

materials. The potential extent of this increase cannot be determined. However, we have 

developed generalized preliminary estimates of the quantities of the selected materials 

 30 Considering the actual implementation dates for the associated rules. 31 There would remain the burden associated with 40 CFR 241.4 (categorical non-waste determination provisions). 32Supporting Statement for EPA Information Collection Request Number 2382.04 Reporting and Recordkeeping 

Requirements for the Final Rule on the Identification of Non-Hazardous Secondary Materials that are Solid Waste, 

January 2011, (Addendum added June 26, 2012). [See Exhibit 1]
13

potentially available for fuel based on our estimates of maximum annual generation of these 

materials.

Based on the total annual C&D wood generation and use quantities discussed above 

under “Summary of Affected Secondary Materials,” it is feasible that anywhere from 9.08 

million tons to 15.58 million tons of additional C&D wood of fuel value quality is available 

annually beyond the quantity currently burned for fuel. Paper recycling mills generate between 

450,000 and 600,000 tons of PRRs per year.33,34 Of this, about 10 percent is believed to be used 

in land application activities,

35 indicating about 405,000 tons to 540,000 tons of PRRs are 

available each year for energy recovery. Deducting current burn estimates, we find that, at a 

maximum, anywhere from 225,000 tons to 405,000 tons of additional PRRs may be available 

each year for energy recovery.36 We estimate that anywhere from 13 million37 to 20 million38

CTRTs are generated (removed from service) each year. Approximately 62 percent39 of this 

total is currently burned for energy recovery. Based on comments from the Association of 

American Railroads, approximately 67 percent of all creosote-treated railroad ties removed from 

service each year are suitable for energy recovery in today’s market. Converting the five 

percentage point incremental increase in the number of ties to tons of CTRTs, we estimate there 

may be about 59,150 tons to 91,000 U.S. tons equivalent of additional railroad ties available for 

energy recovery each year. Appendix B presents detailed information on all inputs, calculations, 

assumptions, and sources used in the development of these estimates.

The above estimates clearly demonstrate the market potential for increased fuel-use of the

materials addressed in this proposal. However, the extent of any potential market adjustment is 

undetermined, and would depend upon a multitude of economic, regulatory (state and local), and 

engineering factors. In addition to market-adjustments, there would be increased upstream 

environmental benefits resulting from reduced extraction of traditional fuels. 

Under regulatory Option 1, where C&D wood and PRRs would be clearly defined as 

RCRA solid wastes, facilities who do not present a successful petition, may decide to cease 

burning the selected material(s) in an effort to avoid potential unit upgrade costs. As a result, the 

generators of these materials would need to seek alternative management methods. In some 

cases, this may be the same facility that burns the material, while in other cases this may be 

another facility. When a combustion unit stops burning a secondary material, the ultimate 

destination of that material is uncertain. Under this option, the quantities of NHSMs potentially 

 33 Price, Jason, Kase, W., and E. Reker, October 26, 2012. Generation, Management, and Processing of Paper 

Processing Residuals. Memo to Tab Tesnau, U.S. EPA from Industrial Economics, Inc. 34 Note: These data are not for the most recent year and the amounts are likely to have changed with the increase in 

recycling.

35 Price, Jason, Kase, W., and E. Reker, October 26, 2012. Generation, Management, and Processing of Paper 

Processing Residuals. Memo to Tab Tesnau, U.S. EPA from Industrial Economics, Inc. [See page 2]. 36 The potential for expanded fuel use is a high-end estimate and does not take into account engineering restrictions 

and design limitations potentially associated with the baseline boiler universe at PRR facilities currently not burning 

PRRs for fuel. 

37 Waste Age, Sep 1, 1995. Recycling Keeps Railroad Ties Off The Landfill Track 38 Smith, Stephen and Chris Bolin. Feb. 18, 2010. Creosote-Treated Ties End-of-Life Evaluation.

39 Comments of the Association of American Railroads (EPA-HQ-RCRA-2008-0329)
14

diverted away from fuel use to alternative management are not estimated, but could be 

significant. 

Other Potential Impacts

In addition to potential materials diversion and alternative management impacts, this 

action may also indirectly foster market-related secondary impacts. These may include changes 

in material transportation patterns, changes in material collection and consolidation patterns, and 

changes in material processing patterns. There may also be minor incremental changes in 

consumer prices and employment patterns related to the potential change in management 

associated with these materials. The actual occurrence, or extent of any such impacts, has not 

been assessed. Finally, all affected entities would face the direct RCRA associated cost of 

reading and understanding the rule, estimated at approximately $74 per entity.40

Certification Statement for C&D Wood

The final rule also adds a certification requirement to ensure that C&D wood will be 

processed according to the conditions established in the rule. These conditions are as follows:

Construction and demolition (C&D) wood processed from C&D debris according to best 

management practices. Combustors of C&D wood must obtain a written certification 

from C&D processing facilities that the C&D wood has been processed by trained 

operators in accordance with best management practices. Best management practices for 

purposes of this categorical listing must include sorting by trained operators that excludes 

or removes the following materials from the final product fuel: non-wood materials (e.g., 

polyvinyl chloride and other plastics, drywall, concrete, aggregates, dirt, and asbestos), 

and wood treated with creosote, pentachlorophenol, chromated copper arsenate, or other 

copper, chromium, or arsenical preservatives. In addition:

(i) Positive sorting. C&D processing facilities that use positive sorting—where 

operators pick out desirable wood from co-mingled debris—or that receive and process 

positive sorted C&D wood must either:

(A) Exclude all painted wood from the final product fuel,

(B) Use X-ray Fluorescence to ensure that painted wood included in the final 

product fuel does not contain lead-based paint, or

(C) Require documentation that a building has been tested for and does not 

include lead-based paint before accepting demolition debris from that building. 

(ii) Negative sorting. C&D processing facilities that use negative sorting—where 

operators remove contaminated or otherwise undesirable materials from co-mingled 

debris—must remove fines (i.e., small-sized particles that may contain relatively high 

concentrations of lead and other contaminants) and either:

(A) Remove all painted wood,

(B) Use X-ray Fluorescence to detect and remove lead-painted wood, or

 40 Supporting Statement for EPA Information Collection Request Number 2382.04 Reporting and Recordkeeping 

Requirements for the Final Rule on the Identification of Non-Hazardous Secondary Materials that are Solid Waste, 

January 2011, (Addendum added June 26, 2012). 
15

(C) Require documentation that a building has been tested for and does not 

include lead-based paint before accepting demolition debris from that building.

(iii) Training. Processors must train operators to exclude or remove the materials 

as listed in paragraph (a)(5) of this section from the final product fuel. Records of training 

must include date of training held and must be maintained on-site for a period of three 

years.

(iv) Written certification. A written certification must be obtained by the combustor for 

every new or modified contract, purchase agreement, or other legally binding document, 

from each final processor of C&D wood and must include the statement: the processed 

C&D wood has been sorted by trained operators in accordance with best management 

practices.

The preparation of the written certification statement is the responsibility of the 

processor while the requirement to maintain the written certification is the responsibility of the 

combustor. The certification recordkeeping requirement for the categorical non-waste C&D 

materials is part of the existing recordkeeping requirements in the air boiler MACT and CISWI 

CAA rules.41

Our preliminary estimate indicates that this certification statement would cost 

approximately $419 each year for each processor to prepare. Should the facility also need to add 

best management practices training if they do not already train processors, the total average 

annual cost is estimated to be approximately $1,846. Appendix C presents more details on this 

certification and training cost estimation. In addition, the cost to the burner to receive, review, 

file and maintain the certification statement is estimated at $23.40 per submission.42 However, 

as indicated above, the certification recordkeeping requirement for the categorical non-waste 

C&D materials is part of existing CAA recordkeeping requirements. Thus, some or all of this

cost may simply replace the existing recordkeeping requirements. 

Human Health, Environmental, and Economic Benefits/Disbenefits:

Together with the corresponding CAA rules, this proposed rule will likely result in 

various changes in materials management practices that may yield a variety of human health, 

environmental, and economic benefits or disbenefits. To the extent that the final rule affects the 

CAA regulatory status of individual combustion units burning the selected material(s), the final

rule may affect criteria pollutant and air toxics emissions. In addition, any increased quantities of 

these NHSMs burned as a non-waste fuel would result in upstream life cycle benefits associated 

with reduced extraction of traditional fuel(s). Finally, to the extent that the rule may influence 

market dynamics within affected industries, economic benefits or disbenefits may occur. 

 41 The relevant recordkeeping regulations in the existing CAA Air rules under sections 60.2175 (v), 60.2740(u) or 

63.7555(d)(2), and 63.11225(c)(2)(ii) state that a burner must show they are in compliance with 40 CFR part 241.3 

or 241.4 to burn a non waste fuel and has been processed pursuant to 241.2. 42 Supporting Statement for Information Collection Request Number 2421.04 - Hazardous Waste Management 

System: Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geological Sequestration Activities – Final 

Rule, July 2, 2013.(Exhibit 5)
16

Human Health and Environmental Benefits/Disbenefits:

Our research finds that the NHSM fuels selected in the current proposal are generally 

comparable to fuels that the combustors would otherwise burn.

43 Therefore, the overall level of 

emissions, or the emissions mix from boilers is not expected to change significantly under this 

proposal. However, we cannot confirm that there would be no cases of an incremental increase in 

exposure (negative impacts) as an indirect result of this rule if the affected facilities accept more, 

or a different combination of non-hazardous secondary materials.

This rule may stimulate the increased use of the selected NHSMs for use as a fuel in 

CAA section 112 boilers. The increased use of these NHSMs would likely result in the 

displacement of selected traditional fuels, or other non-waste fuels, depending upon availability, 

prices, and unit design. A net displacement of coal or other fossil fuels could result in various 

environmental benefits, including reduced upstream emissions of particulate matter, criteria 

pollutants, and toxic emissions. There may also be reduced water and energy usage. Any 

reduced emissions or activities at virgin fuel mining or processing facilities may result in reduced 

environmental impacts to citizens living near or around the affected operations.

The net human health and environmental impacts from the potential changes discussed 

above have not been assessed. This net impact could be either positive or negative. 

Economic Benefits/Disbenefits:

Increased beneficial fuel use of the selected materials could lead to increased market 

valuations of these materials, and potentially reduced valuations of substitutes. These changes in 

market valuations, and corresponding supply and demand, could disrupt the market equilibrium 

and alter the economics of the affected materials and industries. This could potentially lead to 

incremental changes in employment, revenues, and profitability for certain industrial sectors, 

subsectors, or individual companies. Liability and goodwill considerations may also be factors. 

Facilities burning the materials as a non-waste fuel may receive economic value from the 

avoided stigma of burning a solid waste, and the corresponding liability concerns.

EQUITY CONSIDERATIONS AND OTHER IMPACTS

As required by applicable statutes and executive orders, this section summarizes our 

analysis of equity considerations and other regulatory concerns associated with the final rule. 

This chapter assesses potential impacts, with respect to the following issues: 

• Regulatory planning and review: discusses determination of regulatory significance 

under Executive Order 12866: Regulatory Planning and Review and Executive Order 

13563: Improving Regulation and Regulatory Review the Agency. These Orders are also 

the basis for this analysis.

 43 See Section V of the Proposed Rule Preamble: Proposed Categorical Non-Waste Listing Determinations.
17

• Regulatory flexibility: focuses on the potential effects of the final rule on small entities; 

• Unfunded mandates: examines the implications of the final rule with respect to 

unfunded mandates; 

• Federalism: considers potential issues related to state sovereignty; 

• Tribal governments: extends the discussion of federal unfunded mandates to include 

impacts on Native American tribal governments and their communities; 

• Children's health protection: examines the potential impact of the final rule on the 

health of children; 

• Energy Impacts: examines the impacts of the final rule on energy use, supply, and 

distribution; 

• Environmental justice: considers potential issues for minority and low-income 

populations. 

Regulatory Planning and Review:

Under Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: 

Improving Regulation and Regulatory Review, the Agency, in conjunction with the Office of 

Management and Budget’s (OMB’s) Office of Information and Regulatory Affairs (OIRA) must 

determine whether a regulatory action is “significant” and therefore subject to OMB review. The 

Order defines a “significant regulatory action” as one that is likely to result in a rule that may: 

(1) Have an annual effect on the economy of $100 million or more or adversely affect in 

a material way the economy, a sector of the economy, productivity, competition, jobs, 

the environment, public health or safety, or State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned 

by another agency; 

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan 

programs or the rights and obligations of recipients thereof; or 

(4) Raise novel legal or policy issues arising out of legal mandates, the President’s 

priorities, or the principles set forth in the Executive Order. 

Pursuant to the terms of Executive Order 12866, this action is “substantive 

nonsignificant” and will not undergo OMB review. 

Regulatory Flexibility:
18

The Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory 

Enforcement Fairness Act of 1996 (SBREFA), 5 USC 601 et seq., generally requires an agency 

to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking 

requirements under the Administrative Procedure Act, or any other statute. This analysis must 

be completed unless the agency certifies that the rule will not have a significant economic impact 

on a substantial number of small entities. Small entities include small businesses, small 

organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is defined 

as: (1) a small business as defined by the Small Business Administration’s (SBA) regulations at 

13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, 

town, school district or special district with a population of less than 50,000; and (3) a small 

organization that is any not-for-profit enterprise which is independently owned and operated and 

is not dominant in its field.

In determining whether a rule has a significant economic impact on a substantial number 

of small entities, the impact of concern is any significant adverse economic impact on small 

entities, since the primary purpose of the regulatory flexibility analysis is to identify and address 

regulatory alternatives “which minimize any significant economic impact of the rule on small 

entities” (5 USC 603 and 604). Thus, an agency may certify that a rule will not have a significant 

economic impact on a substantial number of small entities if the rule relieves regulatory burden, 

or otherwise has a positive economic effect on all of the small entities subject to the rule. 

The addition of the three NHSMs to the list of categorical non-waste fuels is expected to 

indirectly reduce materials management costs. In addition, this action will provide greater clarity 

and reduce regulatory uncertainty associated with these materials and help increase management 

efficiency. We have therefore determined that today's rule will not have a significant economic 

impact on a substantial number of small entities.

Unfunded Mandates:

The Unfunded Mandates Reform Act (UMRA) of March 22, 1995, calls on all federal 

agencies to provide a statement supporting the need to issue any regulation containing an 

unfunded federal mandate, and to describe prior consultation with representatives of affected 

state, local, and tribal governments. 

The final rule is not subject to the requirements of sections 202, 204 and 205 of UMRA. 

In general, a rule is subject to the requirements of these sections if it contains “Federal 

mandates” that may result in the expenditure by State, local, and tribal governments, in the 

aggregate, or by the private sector, of $100 million or more in any one year. The final rule does 

not result in $100 million or more in expenditures for any of these groups. 

Federalism:

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires 

EPA to develop an accountable process to ensure “meaningful and timely input by state and local 

officials in the development of regulatory policies that have federalism implications.” “Policies 
19

that have federalism implications” is defined in the Executive Order to include regulations that 

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.” Internal EPA guidance indicates that a policy has federalism implications if it 

results in the expenditure by State and/or local governments in the aggregate of $25 million or 

more in any one year.

Under Executive Order 13132, EPA may not issue a regulation that has federalism 

implications, that imposes substantial direct compliance costs, and that is not required by statute, 

unless the Federal government provides the funds necessary to pay the direct compliance costs 

incurred by State and local governments, or EPA consults with State and local officials early in 

the process of developing the regulation.

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, as 

specified in the Order. This rule will not impose direct compliance costs on state or local 

governments and will not preempt state law. Thus, Executive Order 13132 does not apply to this 

action. 

Consultation and Coordination with Indian Tribal Governments:

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal 

Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable 

process to ensure “meaningful and timely input by tribal officials in the development of 

regulatory policies that have tribal implications.” 

EPA has concluded that this action may have tribal implications. However, 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 final

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.

Children’s Health Protection:

Executive Order 13045, entitled “Protection of Children from Environmental Health 

Risks and Safety Risks” (62 FR. 19885, April 23, 1997) applies to any rule that: (1) is 

determined to be “economically significant” as defined under E.O. 1286644, and (2) concerns an 

environmental health or safety risk that EPA has reason to believe may have a disproportionate 

effect on children. If the regulatory action meets both criteria, the Agency must evaluate the 

environmental health or safety effects of the planned rule on children, and explain why the 

 44 An “economically significant” action is one estimated to have an annual effect on the economy of $100 million or 

more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, 

the environment, public health or safety, or State, local, or tribal governments or communities; 
20

planned regulation is preferable to other potentially effective and reasonably feasible alternatives 

considered by the Agency. 

This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not 

economically significant as defined in EO 12866, and because the Agency does not believe the 

environmental health or safety risks addressed by this action present a disproportionate risk to 

children. Based on the discussion below, the Agency found that the populations of children near 

potentially affected boilers are either not significantly greater than national averages, or in the 

case of landfills, may potentially result in reduced discharges near such populations.

The final rule may indirectly stimulate the increased fuel use of one or more of the three 

NHSMs by providing enhanced regulatory clarity and certainty. This increased fuel use may 

also result in the diversion of a certain quantity of these NHSMs away from current baseline 

management practices. Any corresponding disproportionate impacts among children would 

depend upon: (1) any potential change in emissions from combustion units subject to the CAA 

section 112 standards, relative to baseline management patterns, and (2) whether children make 

up a disproportionate share of the population near the affected combustion units. Therefore, to 

assess the potential for the final rule to result in an indirect disproportionate effect on children, 

we conducted a demographic analysis for this population group surrounding CAA section 112 

major source boilers, municipal solid waste (MSW) landfills, and construction and demolition 

(C&D) landfills.45 We assessed the share of the population under the age of 18 living within a 

three-mile (approximately five kilometers) radius of these facilities. 

 For major source boilers, our findings indicate that the percentage of the population in 

these areas under age 18 years of age is generally the same as the national average.46 While the 

fuel source and corresponding emission mix for some of these boilers may change as an indirect 

response to this rule, emissions from these sources remain subject to the CAA section 112 

standards. For MSW and C&D landfills, we do not have demographic results specific to 

children. However, using the population below the poverty level as a rough surrogate for 

children, we found that within three miles of facilities that may experience diversions of one or 

more of these NHSMs, low-income populations, as a percent of the total population, are 

disproportionately high relative to the national average. Thus, to the extent that these NHSMs 

are diverted away from MSW or C&D landfills, any landfill-related emissions, discharges, or 

other negative activity potentially impacting low-income (children) populations living near these 

units are likely to be reduced. Transportation emissions associated with the diversion of some of 

this material away from landfills to boilers are likely to be generally unchanged, while these 

emissions are likely to be reduced for on-site generators of paper recycling residuals that would 

reduce off-site shipments. 

 45 The extremely large number of area source boilers and the absence of site-specific coordinates prevented us from 

assessing the demographics of populations located near these sources. In addition, we did not assess child 

population percentages surrounding cement kilns that may use some out-of-service railroad crossties for their 

thermal value. 

46 U.S. EPA, Office of Resource Conservation and Recovery. Summary of Environmental Justice Impacts for the 

Non-Hazardous Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial Solid Waste Incinerator 

(CISWI) Standards, the 2010 Major Source Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 

2011
21

Energy Impact:

Executive Order 13211, “Actions Concerning Regulations that Affect Energy Supply, 

Distribution, or Use” (66 FR 28355, May 22, 2001), addresses the need for regulators to more 

fully consider the potential energy impacts of regulatory action. Under Executive Order 13211, 

agencies are required to prepare a Statement of Energy Effects when a regulatory action may 

have significant adverse effects on energy supply, distribution, or use, including impacts on price 

and foreign supplies. Additionally, the requirements obligate agencies to consider reasonable 

alternatives to regulatory actions with adverse effects and the impacts that such alternatives 

might have on energy supply, distribution, or use.

This action is not a “significant energy action” as defined under the Order 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 final action are not generated in quantities sufficient to 

significantly (adversely or positively) impact the supply, distribution, or use of energy at the 

national level. 

Environmental Justice:

Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental justice part of their mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations and lowincome populations in the United States. 

The overall level of emissions, or the emissions mix from affected boilers are not 

expected to change significantly as a result of this rule. The NHSMs categorically listed as nonwaste fuels are generally comparable to the types of fuels that the combustors would otherwise 

burn. Therefore, while we cannot definitively determine that there would be no cases of an 

incremental increase in exposure (negative impacts) if the affected facilities accept more, or a 

different combination of non-hazardous secondary materials, the boilers indirectly affected by 

this action would remain subject to the safe CAA section 112 standards. 

Our environmental justice assessment47 reviewed the distributions of minority and lowincome groups that might be impacted by the sources indirectly affected by this proposal. We 

focused on census blocks within three miles (approximately five kilometers) of these facilities. 

We then determined the demographic composition (e.g., race, income, etc.) of these census 

blocks and compared them to the corresponding national compositions. Our findings indicate 

that populations living within three miles of major source boilers represent areas with minority 

and low-income populations that are higher than the national averages. In these areas, the 

 47 U.S. EPA, Office of Resource Conservation and Recovery. Summary of Environmental Justice Impacts for the 

Non-Hazardous Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial Solid Waste Incinerator 

(CISWI) Standards, the 2010 Major Source Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 

2011.
22

minority share48 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). 

We also considered the potential for non-combustion environmental justice concerns 

related to the potential incremental increase in NHSMs diversions from current baseline 

management practices. These may include the following: 

• Reduced upstream emissions resulting from the reduced production of virgin 

fuel: Any reduced upstream emissions that may indirectly occur in response to 

reduced virgin fuel mining or extraction may result in a human health and/or 

environmental benefit to minority and low-income populations living near these 

projects. 

• Alternative materials transport patterns: Transportation emissions associated 

with NHSMs diverted from landfills to boilers are likely to be similar, except for 

on-site paper recycling residuals, where the potential for less offsite transport to 

landfills may result in reduced truck traffic and emissions. Reduced 

environmental impacts may occur where such transport patterns pass through 

minority or low-income communities.

• Change in emissions from baseline management units: The diversion of some 

of these NHSMs away from disposal in landfills may result in a marginal decrease 

in activity at these facilities. This may include non-adverse impacts, such as 

marginally reduced emissions, odors, groundwater and surface water impacts, 

noise pollution, and reduced maintenance cost to local infrastructure. Because 

MSW and C&D landfills were found to be located in areas where minority and 

low-income populations are disproportionately high relative to the national 

average, any reduction in activity and emissions around these facilities is likely to 

benefit (even if only marginally) the citizens living near these facilities.

This rule, in conjunction with the corresponding CAA rules, may also help accelerate the 

abatement of any existing stockpiles of the selected NHSMs. To the extent that these stockpiles 

may represent negative human health or environmental implications, minority and/or lowincome populations that live near such stockpiles may experience marginal health or 

environmental improvements. Aesthetics may also be improved in such areas.

Joint Impacts of Rules:

The final rule has applicability to the universe of facilities subject to CAA sections 112 or 

129, as well as other rules and agency regulatory programs. In fact, the final rule, with the 

exception of certain administrative requirements, only engenders economic effects by its actual 

 48 This figure is for overall population minus white population and does not include the Census group defined as 

“White Hispanic.”
23

application in the context of these other regulatory regimes. Thus, the final rule shares joint 

impacts with existing, and prospective regulatory initiatives. 

Examples of other rules or regulatory initiatives with which the final rule may have joint 

impacts include: the Portland Cement MACT, the Commercial, Industrial Solid Waste 

Incinerators (CISWI) rules, the Boiler MACT rules (Major Source and Area Source), and the 

Other Solid Waste Incinerators (OSWI) rule.
24

APPENDIX A
25

Estimating Section 129 Compliance Costs Compared to Section 112 Compliance Costs

This Appendix details our assessment of the derivation of representative unit and average 

CAA section 129 and section 112 compliance costs for model units. Table A-1 presents the 

following information for each of the 30 representative units49: (1) unit and facility 

identification data, (2) the estimated annual costs of section 129 compliance, (3) the estimated 

annual costs of section 112 compliance, and (4) the annual costs of section 129 incremental to 

section 112 (i.e., the difference between (2) and (3) for each unit). Averaging the incremental 

section 129 costs for the 30 representative units, we find that the cost of upgrading to section 129 

standards (incremental to Section 112), is nearly $266,000 per unit. 

Table A-1

Facility Name City State Unit 

Number

Section 129 

Unit Costs

(year 2008$)

Section 112 

Unit Costs 

(year 2008$)

Incremental Costs 

of Section 129 

(year 2008$)

OFS Fitel, LLC 

Norcross Facility

Norcross GA Unit 1 325,382 111,194 214,188

OFS Fitel, LLC 

Norcross Facility

Norcross GA Unit 2 325,382 152,643 172,739

J.R. Simplot 

Company

Pocatello ID Unit 1 325,382 0 325,382

J.R. Simplot 

Company

Pocatello ID Unit 2 325,382 0 325,382

Thermafiber, Inc Wabash IN Unit 1 325,382 0 325,382

3M Alexandria Alexandria MN Unit 1 325,382 0 325,382

3M Alexandria Alexandria MN Unit 2 325,382 0 325,382

PPG Industries, Inc. 

(Lexington, NC)

Lexington NC Unit 1 325,382 152,643 172,739

PPG Industries, Inc. 

(Lexington, NC)

Lexington NC Unit 2 325,382 152,643 172,739

PPG Industries, Inc. 

(Lexington, NC)

Lexington NC Unit 3 325,382 152,643 172,739

PPG Industries, Inc. 

(Lexington, NC)

Lexington NC Unit 4 325,382 152,643 172,739

PPG Industries, Inc. 

(Shelby, NC)

Shelby NC Unit 1 325,382 152,643 172,739

PPG Industries, Inc. 

(Shelby, NC)

Shelby NC Unit 2 325,382 152,643 172,739

AGY Huntingdon, 

LLC

Huntingdon PA Unit 1 325,382 0 325,382

AGY Huntingdon, 

LLC

Huntingdon PA Unit 2 325,382 0 325,382

 49 U.S. EPA, Office of Air Quality Planning and Standards, Draft combustor database in support of the revised 

CISWI Rule, April 14, 2009 and U.S. EPA, Office of Air Quality Planning and Standards, Draft combustor database 

in support of the revised Boilers Rule, March 20, 2009.
26

Table A-1

Facility Name City State Unit 

Number

Section 129 

Unit Costs

(year 2008$)

Section 112 

Unit Costs 

(year 2008$)

Incremental Costs 

of Section 129 

(year 2008$)

McAvoy Vitrified 

Brick Co.

Phoenixville PA Unit 1 325,382 0 325,382

AGY Aiken LLC Aiken SC Unit 1 325,382 0 325,382

AGY Aiken LLC Aiken SC Unit 2 325,382 0 325,382

AGY Aiken LLC Aiken SC Unit 3 325,382 0 325,382

Kohler Co. Spartanburg SC Unit 1 325,382 0 325,382

Kohler Co. Spartanburg SC Unit 2 325,382 0 325,382

Owens Corning 

Insulating Systems, 

LLC Waxahachie 

Plant

Waxahachie TX Unit 1 325,382 0 325,382

Owens Corning 

Insulating Systems, 

LLC Waxahachie 

Plant

Waxahachie TX Unit 2 325,382 0 325,382

Corning Incorporated Danville VA Unit 1 325,382 0 325,382

Corning Incorporated Danville VA Unit 2 325,382 0 325,382

3M Prairie du Chien Prairie du 

Chien

WI Unit 1 325,382 152,643 172,739

3M Prairie du Chien Prairie du 

Chien

WI Unit 2 325,382 152,643 172,739

3M Prairie du Chien Prairie du 

Chien

WI Unit 3 325,382 152,643 172,739

3M Wausau -

Downtown

Wausau WI Unit 1 325,382 152,643 172,739

Guardian Fiberglass, 

Inc

Inwood WV Unit 1 325,382 0 325,382

AVERAGE PER UNIT INCREMENTAL COST OF SECTION 129 OVER SECITON 112 $265,706
27

APPENDIX B
28

Estimated NHSM Quantities Generated and Burned for Fuel

Input Factor

Value/

Quantity Units Year Source/Comments

Low-End: Maximum Potential Quantity 

of Paper Recycling Residuals (including 

OCC) that Could Possibly Be Burned as 

Fuel

405,000 short tons per 

year

2012

* Generation, Management, and Processing of Paper Processing Residuals. Industrial Economics Corporation, October

26, 2012.

* Maximum Reported Quantity: 450,000 tons/yr. Estimate assumes 10 percent will be used for land applications (see 

statement on page 2 of reference.

* Assumes 100% generated on-site. 

High-End: Maximum Potential Quantity 

of Paper Recycling Residuals (including 

OCC) that Could Possibly Be Burned as 

Fuel

540,000 short tons per 

year

2012

* Generation, Management, and Processing of Paper Processing Residuals. Industrial Economics Corporation, October 

26, 2012.

* Maximum Reported Quantity: 600,000 tons/yr. Estimate assumes 10 percent will be used for land applications (see 

statement on page 2 of reference.

* Assumes 100% generated on-site. 

Low-End Estimate: Paper Recycling 

Residuals (including OCC) Currently 

Burned for Fuel

135,000 short tons/year 2012

* Generation, Management, and Processing of Paper Processing Residuals. Industrial Economics Corporation, October 

26, 2012.

* Assumes 100% generated on-site. 

High-End Estimate: Paper Recycling 

Residuals (including OCC) Currently 

Burned for Fuel

180,000 short tons/year 2012

* Generation, Management, and Processing of Paper Processing Residuals. Industrial Economics Corporation, October 

26, 2012.

* Assumes 100% generated on-site. 

Estimated Maximum Quantity of 

Construction and Demolition (C&D) 

Wood that May be Available for Energy 

Recovery

20,280,000 short tons/year 2002

* U.S. EPA. 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.

February 3, 2011

Low-End Estimate: C&D Wood 

Currently Burned for Fuel 4,700,000 short tons/year 2009

* U.S. EPA. 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.

February 3, 2011
29

Estimated NHSM Quantities Generated and Burned for Fuel

Input Factor

Value/

Quantity Units Year Source/Comments

High-End Estimate: C&D Wood 

Currently Burned for Fuel 11,200,000 short tons/year 2009

* U.S. EPA. 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.

February 3, 2011

* Note: 4.7 million ton estimate and 6.5 million ton estimate added together. (See paper)

* Note: The high-end estimate may include an undetermined portion of non C&D building material wood (e.g., land 

clearing wood, disaster debris)

Low-End Estimate of Creosote-Treated 

Rail Road CrossTies Removed Annually 13,000,000 actual number of 

8 foot ties 1995

* Waste Age, Sep 1, 1995. Recycling Keeps Railroad Ties Off The Landfill Track 

* Lowest estimate identified

High-End Estimate of Creosote-Treated 

Rail Road CrossTies Removed Annually 20,000,000 actual number of 

8 foot ties 2010

* Smith, Stephen and Chris Bolin. Feb. 18, 2010. Creosote-Treated Ties End-of-Life Evaluation.

* Highest estimate identified

Estimated Percent of RailRoad CrossTies 

Removed Annually that are Currently 

Burned for Fuel

62% percent 2012

* Comments of the Association of American Railroads (EPA-HQ-RCRA-2008-0329)

Estimated Maximum Percent of 

RailRoad CrossTies Removed Annually 

that Might be Burned for Fuel

67% percent 2012

* Comments of the Association of American Railroads (EPA-HQ-RCRA-2008-0329)

* Note: Assumed that the 5 percent of total that is currently going to legacy or unused on RR land would be diverted to 

fuel. Low quality landscaping quantities may also be affected, based on market conditions. 

* Note: Crossties no longer going to burning assumed to be used as legacy ties or for landscaping at no incremental 

cost or cost savings to generator or burner.

Estimated Average End of Life Weight 

per Standard Treated Wood Tie 182 LBS 2010

* Smith, Stephen and Chris Bolin. Feb. 18, 2010. Creosote-Treated Ties End-of-Life Evaluation.

* Note: Estimates ranged from about 130 to 200. However, the Smith paper (referenced above) appeared to be the 

most carefully researched.
30

APPENDIX C
31

NHSM Categorical Non-Waste Determination - Final Rule

Cost Assessment for Certification Statement for C&D Wood.

Summary of Requirement: 

Combustors of C&D wood must request a written certification statement from C&D processing 

facilities that the C&D wood has been processed by trained operators in accordance with best 

management practices, as defined in the rule. The preparation of this certification statement and the 

requirement to maintain certification is the responsibility of the processor. While some facilities 

already perform training to processors on best management practices for C&D wood, those that do 

not will need to do so.

Assumptions and Data:

Certification Activities and Assumptions per Processing Facility:

• Assume that each facility incurs these costs.

• Read the regulation in sufficient detail to fully understand certification requirement.

• Review the facility wood processing activities and examine final fuel product to 

ensure product consistently meets necessary requirements.

• Keep records of training activities.

• Prepare certification statement.

• Have certification statement signed by the authorized representative or authority.

• Provide certification statement to each purchaser (combustion unit/facility).

• Make the certification statement voluntarily available to the State upon request

o assume 30% of all facilities would receive such a request each year. 

• Impacts averaged over a three-year timeframe.

• One hundred percent labor costs, no capital or maintenance costs.

• The certification cost is assumed to be on a per facility basis, not per unit.

Best Management Practices Training for Processors:

• Some facilities already perform this level of training, so there will be no additional 

costs for training for these facilities (i.e., business as usual).

• Assumes training materials will be purchased or developed for a one-time cost.

• Training material cost assumed to be $1950 (Assumes non-member costs for 

SWANA’s “Waste Screening In-House Training Package”, assessed from 

https://swana.org/Education/TypesofTraining/Training@Work/Training@WorkFull

List.aspx on May 21, 2015).

• Assumes one manager performs the training program for five processors, and that 

the time commitment for each employee is 10 hours.

Analytical Inputs:

Assumes the following labor rates: $110.54 per hour for Executive, Administrative, and 

Managerial labor; $81.86 per hour for Technical labor, $29.78 per hour for Clerical 
32

labor, and $24.53 per hour for processors/sorters. This cost estimate uses mean hourly 

wage for the following labor categories from the United States Department of Labor, 

Bureau of Labor Statistics, May 2014, “National Industry-Specific Occupational 

Employment and Wage Estimates” in the Waste Collection classification (NAICS code 

562100): Management Occupations, General and Operations Managers for Managerial 

labor; Environmental Engineers for Technical labor, and Office Clerks, General for 

Clerical labor. For Legal, the rate comes from cross industry Lawyers, Legal Services 

since there is no specific legal rate available in the NAICS 562100 statistics. The rates 

have been increased by 110 percent to account for the benefit packages available to 

those employed by private industry. Accessed from : 

http://www.bls.gov/oes/current/naics4_562100.htm#51-0000 and 

http://www.bls.gov/oes/current/oes231011.htm on May 21, 2015.

Findings (the following page provides the calculations):

For facilities that already perform best management practices training:

Estimated Total Annual Average Cost per facility: $419.01

Estimated Total Annual Average Burden per facility: 4.1 hours

For facilities that do not already perform best management practices training (“worst-case

scenario”):

Estimated Total Annual Average Cost per facility: $1,846.31

Estimated Total Annual Average Burden per facility: 24.1 hours
33

Certification Cost Calculations

Certification Activities 

(Annual average hours and costs to prepare and make statement available for review)

Labor Category: Average Annual Hours Loaded Rate ($/hr)1 Cost ($)

Management 1.5 110.54 $165.81 

Legal 1 140.45 $140.45 

Technical 1.25 81.86 $102.33 

Clerical 0.35 29.78 $10.42 

Processors/Sorters 0 24.53 $0 

Total 4.1 $419.01 

Training Activities2

(Hours and costs to prepare and perform training course for processors)

Labor Category: Hours Loaded Rate ($/hr)1 Cost ($)

Training Materials3 0 $1,950.00 

Management 10 110.54 $1,105.40 

Legal 0 140.45 $0 

Technical 0 81.86 $0 

Clerical 0 29.78 $0 

Processors/Sorters 50 24.53 $1,226.50 

Total 60 $4,281.90 

Average Annual Total 20 $1,427.30 

Training plus Certification Activities ("worst-case scenario") 

total annual cost per facility ($/yr): $1,846.31

Labor Rates

Labor Category: BLS Occupation Title (Occupation Code)

Raw Rate 

($/hr)4

Loaded Rate 

($/hr)1

Management General and Operations Managers (11-1021) $52.64 $110.54

Legal Lawyers, Legal Services (23-1011)5 $66.88 $140.45

Technical Environmental Engineers (17-2081) $38.98 $81.86

Clerical Office Clerks, General (43-9061) $14.18 $29.78

Processors/Sorters Inspectors, Testers, Sorters, Samplers, and Weighers (51-9061) $11.68 $24.53

NOTES:

1. Assumes 110% of wage rate is added to raw wage rate to reflect loading for benefits

2. Assumes training will be reviewed/updated and performed every 3 years (i.e., average costs over 3-year period).

3. Training Material Cost source: https://swana.org/Education/TypesofTraining/Training@Work/Training@WorkFullList.aspx

4. Labor rates data source for NAICS 562100: http://www.bls.gov/oes/current/naics4_562100.htm#51-0000

5. There is no "legal" category wage information within NAICS 562100, so this is the mean wage value cross industry, available 

here: http://www.bls.gov/oes/current/oes231011.htm