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 

Prepared for 

Economics and Risk Analysis Staff 

Office of Resource Conservation and Recovery 

U. S. Environmental Protection Agency 

1200 Pennsylvania Ave., N. W. 

Washington, DC 20460 

January 2011 
 

1

 

SYNOPSIS 

This document summarizes the environmental justice (EJ) impacts of the following rules: (1) the 

Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: 

Commercial and Industrial Solid Waste Incineration (CISWI) Units (the CISWI Rule); (2) the National 

Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers (the area source Boilers Rule); (3) the National Emission Standards for Hazardous 

Air Pollutants for Industrial/Commercial/Institutional Boilers and Process Heaters (the major source 

Boilers Rule); and (4) the Identification of Non-hazardous Secondary Materials that are Solid Waste (the 

NHSM rule). Presenting the EJ impacts of each of these rules individually would be complicated, and 

could be misleading by the fact that the four rules are interdependent. For example, the emissions 

standards included in the three air rules are contingent on which non-hazardous secondary materials are 

considered solid waste, and changes in the way that combustion units manage non-hazardous secondary 

materials will depend on the costs of the various emissions standards. Thus, this document provides a 

combined EJ assessment for all four rules. 

EJ impacts that may result from the four rules are likely to be related to the following: 

• Emissions from regulated combustion units 

• Emissions from the diversion of non-hazardous secondary materials from their current fuel or 

ingredient use applications to disposal or other beneficial uses. 

• Other impacts related to material diversion (e.g., noise, aesthetics, water pollution, etc.) 

In addition, whether the rules result in adverse and disproportionate impacts to low-income and minority 

populations will depend on the demographic characteristics of areas experiencing changes in 

environmental effects. 

Based on our assessment of the emissions changes and other environmental impacts of the rules and the 

demographics of populations near affected combustion units and waste management facilities, our main 

conclusions with respect to the EJ impacts of the rules are as follows: 

• Emissions changes from affected combustion units are unlikely to lead to adverse and 

disproportionate impacts for low-income and minority populations: Because emissions 

from facilities burning non-hazardous secondary materials will decline as a result of the 

rules, populations near these facilities will likely experience positive impacts (e.g., 

reduced incidence of adverse health effects). The demographic data for the Census 

blocks near these facilities1

 suggest that low-income and minority populations are higher 

than the national average in these areas in proportional terms. 

• Increases in emissions associated with the diversion of non-hazardous secondary 

materials away from their current fuel or ingredient uses are minimal compared to the 

emissions reductions resulting from the rules. Thus, in net terms, the emissions 

impacts of the rules are unlikely to lead to adverse and disproportionate impacts for 

low-income and minority populations: The diversion of non-hazardous secondary 

materials from their current fuel and ingredient applications to disposal may lead to 

 

1

Our demographics assessment only looked at major sources boilers and incinerators. We did not assess area source 

boilers. 
2 

emissions increases (e.g., from the production of virgin fuels or ingredients), but these 

increases are minimal relative to the reductions achieved due to the Boiler MACT and 

CISWI controls. Therefore, low-income and minority populations are expected to 

benefit from the overall emissions reductions expected under the rules. 

• Low-income and minority populations located near waste management facilities (not 

including boilers) are disproportionately high relative to the national average: Our 

analysis of the demographic characteristics of populations within three miles of these 

facilities suggests that they are located in areas with high minority and low-income 

populations. To the extent that non-hazardous secondary materials are defined as solid 

wastes, those materials that are currently burned in combustion units as either a fuel or 

ingredient may no longer be burned in such units, but may be sent to waste management 

facilities for disposal or recycling. Therefore, to the extent that such material diversion 

leads to adverse environmental impacts at these facilities, which is uncertain and will 

vary by material and facility type, low-income and minority populations could be 

disproportionately impacted.2

 

INTRODUCTION

The purpose of this document is to summarize the environmental justice (EJ) impacts of the following 

rules: (1) the Standards of Performance for New Stationary Sources and Emission Guidelines for Existing 

Sources: Commercial and Industrial Solid Waste Incineration (CISWI) Units (the CISWI Rule); (2) the 

National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers (the area source Boilers Rule); (3) the National Emission Standards for Hazardous 

Air Pollutants for Industrial/Commercial/Institutional Boilers and Process Heaters (the major source 

Boilers Rule); and (4) the Identification of Non-hazardous Secondary Materials that are Solid Waste (the 

NHSM rule). Because the emissions standards established for the CISWI Rule, the area source Boilers 

Rule, and the major source Boilers Rule are based, in part, on which non-hazardous secondary materials 

are considered solid wastes under the NHSM rule, presenting the EJ impacts of each of these rules 

individually would be complicated and could be misleading. Similarly, changes in the management 

practices of non-hazardous secondary materials under the NHSM rule (and the corresponding EJ impacts) 

depend on the emissions control costs that the affected units would incur if they decide to burn nonhazardous secondary materials considered to be solid wastes (i.e., facilities may change their management 

of waste materials to avoid the costs of complying with the Section 129 CISWI standards). Due to this 

interdependence among the air and NHSM rules, this document provides a combined EJ assessment for 

the four rules. 

We summarize the potential EJ impacts of the four rules in the following sections: 

• Environmental justice impacts of emissions changes from regulated entities: This section 

summarizes the EJ impacts in the context of the emissions reductions achieved as a result of 

the Boiler MACT and CISWI emission controls. 

 

2

 We note that identifying non-hazardous secondary materials as non-wastes does not imply that they will not be 

managed in non-EJ communities. However, it is likely that identifying them as solid wastes will likely divert many 

of them to waste management facilities, which are often located in communities where minorities and low-income 

populations are more prevalent in proportional terms than the national average. 
3 

• Emissions-related environmental justice assessment accounting for material diversion: 

Expanding upon the assessment of EJ impacts related to the Boiler MACT and CISWI 

emission controls, this section presents an analysis of the net emissions impacts of the rules 

that accounts for emissions associated with the diversion of non-hazardous secondary 

materials from their current fuel or ingredient uses. 

• Other environmental justice impacts from material diversion: The diversion of nonhazardous secondary materials may lead to other EJ impacts unrelated to emissions. This 

section presents a demographic analysis of populations near disposal and recycling facilities 

and describes the potential EJ impacts for selected non-hazardous secondary materials.

ENVIRONMENTAL JUSTICE IMPACTS OF EMISSIONS CHANGES AT REGULATED UNITS 

The three air rules and the NHSM rule will lead to changes in the emissions of both criteria pollutants 

(e.g., NOx and SO2) and various hazardous air pollutants (HAPs) from regulated combustion units. 

Whether these changes result in disproportionately high and adverse impacts for minority and/or lowincome populations depends on several factors, including (1) whether emissions increase or decrease as a 

result of the rules and (2) whether low-income and/or minority populations are disproportionately high in 

areas experiencing or affected by changes in the emissions. We address both of these issues below. 

The CISWI Rule, the area source Boilers Rule, and the major source Boilers Rule establish national 

emission standards for affected sources. EPA estimates that approximately 138 commercial and industrial 

solid waste incinerators will be regulated under the CISWI Rule; approximately 13,840 industrial, 

commercial, and institutional boilers and process heaters will be covered by the major source Boilers 

Rule; and approximately 189,000 sources will be regulated under the area source Boilers Rule. 

The three air rules will result in substantial emissions reductions of the regulated criteria and hazardous 

air pollutants (HAP). Specifically, the CISWI Rule will reduce emissions of nine pollutants, which 

include particulate matter (PM); metals, including lead (Pb), cadmium (Cd), and mercury (Hg); toxic 

organics, including chlorinated dibenzo-p-dioxins/dibenzofurans (dioxin, furans); carbon monoxide (CO); 

nitrogen oxides (NOx); and acid gases, including hydrogen chloride (HCl) and sulfur dioxide (SO2). The 

major source Boilers Rule will reduce emissions of acid gases, such as hydrogen chloride and hydrogen 

fluoride, mercury, lead, cadmium, other non-mercury metals, organics, and chlorinated dioxin/furans, 

while the area source Boilers Rule will reduce emissions of mercury, non-mercury metals, and organics. 

Exposure to these HAP, depending on exposure duration and levels of exposure, can be associated with a 

variety of adverse health effects. These adverse health effects may include, for example, cancer; irritation 

of the lungs, skin, and mucus membranes; effects on the central nervous system; damage to the kidneys; 

and alimentary effects, such as nausea and vomiting, These rules will also result in substantial reductions 

of criteria pollutant emissions, such as carbon monoxide, nitrogen oxides, particulate matter, and sulfur 

dioxide. Reducing these emissions will subsequently reduce ozone and PM2.5 formation in the 

atmosphere and their associated health effects, such as adult premature mortality, chronic and acute 

bronchitis, asthma, and other respiratory and cardiovascular diseases. 

To assess the environmental justice impacts of the CISWI Rule and major source Boilers Rule, EPA 

reviewed the distributions of different socio-demographic groups that might be impacted by the sources 

affected by each of the two rules. The review focused on those census blocks within three miles of 

affected sources and determined the demographic composition (e.g., race, income, etc.) of these census 
4 

blocks and compared them to the corresponding compositions nationally. EPA believes this proximity 

analysis approach and the specific distance of three miles is relevant to the air inhalation exposure 

pathway; it is not intended to provide information on exposure pathways involving drinking water or diet. 

On the other hand, because of the extremely large number of smaller boilers covered by the area source 

Boilers rule and the absence of site-specific coordinates, EPA is currently unable to assess the 

demographics of populations located near these sources. However, EPA believes that because of the 

extremely large number of area source boilers affected by the rule, it is likely that most of the U.S. 

population lives within three miles of at least one of these sources. Therefore, while it is not possible to 

assess by how much more or less one population group or community would benefit from emission 

reductions from area source boilers than another population group or community, most people and 

communities will benefit from these reductions. 

The analysis for the CISWI Rule and the major source Boilers Rule was performed by first identifying all 

the census blocks within three miles of any affected source. Three miles (or 5 kilometers, which is about 

the same) has been used often in other demographic analyses focused on areas around industrial sources.3

 

Also, as stated in the Preambles to the final CAA rules4

, beyond three miles the air emission influence of 

an individual source is generally considered to be small, both in absolute terms and relative to the 

influence of other sources (assuming there are other sources in the area, as is typical in urban areas). 

Because census blocks are typically small (although some of the blocks where population are sparse can 

get large), this approach does not apportion the population based on land area included within the threemile buffer (circle), as was done in the analysis of the demographics around landfills and other alternate 

disposal and recycling locations that was based on the larger census block groups (see Section III below).5

The population of each census block within three miles of a source was successively divided into 

subgroups (e.g., first by race, then by Hispanic status, then by age group). After each division, persons 

were counted and summed across blocks to obtain population numbers for the area around each source. 

Based on the fact that the three rules do not allow for emission increases, EPA has determined that they 

will not result in disproportionately high and adverse human health or environmental effects on any 

populations in the US, including minority, low-income, or Tribal populations. Moreover, because the 

populations in the vicinity of the affected sources (major source boilers and CISWI) are in the aggregate 

more minority and low income in composition, the beneficial effects from the three rules will be larger for 

the average minority and low income American than for all Americans. (See the final rule for the specific 

 

3

 See, for example, the following publications which have provided demographic information using a 3-mile or 5-

kilometer circle around a facility: 

* U.S. GAO (Government Accountability Office). Demographics of People Living Near Waste Facilities. 

Washington DC: Government Printing Office 1995. 

* Mohai P, Saha R. “Reassessing Racial and Socio-economic Disparities in Environmental Justice Research”. 

Demography. 2006;43(2): 383–399. 

* Mennis, Jeremy “”Using Geographic Information Systems to Create and Analyze Statistical Surfaces of 

Population and Risk for Environmental Justice Analysis” Social Science Quarterly, 2002, 83(1):281-297. 

* Bullard RD, Mohai P, Wright B, Saha R et al. Toxic Wastes and Race at Twenty, 1987-2007,. March 2007.. 4

 CICWI Rule and Major Source Boilers Rule. 

5

 The use of two different approaches has stemmed from time requirements and the rulemaking schedule, not any 

fundamental technical basis. 
5 

reductions for the criteria pollutants and HAP.) Exhibit 1 summarizes the results of the analysis for the 

three-mile buffer around the major source boilers and CISWI units. The results suggest that populations 

living near these facilities are located in areas with minority and low-income populations that are higher 

than the national averages in proportional terms. As shown in Exhibit 1, the major source boilers are 

located in areas where the minorities’ share of the population (33 percent) living within a three-mile 

buffer is higher than the national average (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). The 

percentages of the population in these areas which are under age 18 or over age 65 are generally the same 

as their national averages. 

The CISWI units are also located in areas where the percent minority (29 percent) and percent below the 

poverty line (14 percent) are greater than the national averages, at 25 percent and 13 percent, respectively 

(although we note that the latter value is only slightly above the national average). Therefore, to the 

extent that any minority, or low income subpopulation is disproportionately impacted by the current 

emissions as a result of the proximity of their homes to these sources, that subpopulation stands to see 

increased environmental and health benefits from the emissions reductions resulting from the two rules. 
EXHIBIT 1 – POPULATIONS WITHIN THREE MILE PROXIMITY TO MAJOR SOURCE BOILERS AND CISWI UNITS 

OVERALL 

POPULATION1 WHITE MINORITY2

AFRICAN 

AMER. 

NATIVE 

AMER. 

OTHER AND 

MULTIRACIAL HISPANIC 

BELOW THE 

POVERTY LINE 

POPULATION WITHIN 3 MILES OF MAJOR SOURCE BOILERS 

36,868,952 24,828,553 12,040,399 7,296,123 207,441 4,536,835 4,682,861 5,997,709 

 67% 33% 20% 1% 12% 13% 16% 

POPULATION WITHIN 3 MILES OF CISWI UNITS 

2,095,561 1,480,539 615,022 346,191 21,128 247,703 273,943 295,197 

 71% 29% 17% 1% 12% 13% 14% 

OVERALL NATIONAL POPULATION 

285,339,128 214,539,706 70,799,422 35,043,873 2,489,515 33,265,937 39,083,760 37,161,950 

 75% 25% 12% 1% 12% 14% 13% 

1. Total population in Census Tracts. 2. Overall population minus white population, does not include white Hispanic population. 
 

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A detailed environmental justice assessment for populations located near new boiler and CISWI units was 

not possible given that the location of such units is uncertain. EPA projects, however, that emissions 

from new sources will decline under the major source Boiler MACT, area source Boiler MACT, and 

CISWI standards. Based on these reductions, we do not expect the final rules to result in adverse and 

disproportionate impacts for low-income and minority populations located near new sources. Given that 

the new source standards are likely to lead to emissions reductions, low-income and minority populations 

are likely to benefit from the standards. 

ENVIRONMENTAL JUSTICE AND EMISSIONS FROM MATERIAL DIVERSION 

As described above, because the rules are projected to result in substantial emissions reductions of criteria 

pollutants and HAPs from regulated combustion units, low-income and minority populations will realize 

human health and other benefits as a result of the rules. A more expansive analysis of EJ impacts related 

to air emissions, however, would also account for changes in emissions associated with material diversion 

likely to result from the rules. EPA estimates that units using non-hazardous secondary materials for less 

than 25 percent of their total burn time6

 are likely to divert their non-hazardous secondary materials to 

disposal or recycling as a result of the rules. As indicated in Exhibit 2, approximately 28,700 tons of nonhazardous secondary materials accounting for 411,260 MMBtu are likely to be diverted from their current 

fuel applications. The potential emissions impacts associated with the diversion of this material include 

the following: 

EXHIBIT 2. QUANTITIES OF MATERIALS DIVERTED FROM UNITS THAT BURN 

SECONDARY MATERIALS LESS THAN 25 PERCENT OF TOTAL BURN TIME IN THE 

BASELINE 

MATERIALS DIVERTED MATERIALS CATEGORY 

TOTAL MILLIONS BTU 

DIVERTED PER YEAR 

TOTAL SHORT TONS 

DIVERTED PER YEAR 

Animal Fat/Oils/Tallow Biomass—Food Scraps 92,158 9,505 

Contraband Miscellaneous 1,374 137 

Industrial Sludge Miscellaneous 17,664 1,766 

Plastics Scrap Plastic 30 1 

Process Co-product Solid Purification Process 

Byproducts 3,600 360 

Refuse Miscellaneous 1,000 100 

Used Petroleum-based 

Oils Used Oil 45,421 1,136* 

Used Solvents Spent Solvents 13 1 

Wood: Treated Biomass—Wood 250,000 15,674 

TOTAL: 411,260 28,680

* This translates to 324,434 gallons of used petroleum-based oils. 

 

6

 Estimate derived from EPA Office of Air memo/database: “Final CISWI Database.” (see docket for the final 

CISWI Rule). 
8 

• Upstream emissions from production of virgin fuel: Combustion units that divert nonhazardous secondary materials away from their current fuel applications will require 

virgin fuel to replace the thermal value lost from the diverted material. The extraction, 

processing, and transportation of this fuel to end users will result in criteria pollutant and 

HAP emissions, partially offsetting the reductions associated with the Boiler MACT and 

CISWI controls. 

• Transportation of secondary materials: Diverted non-hazardous secondary materials 

will need to be transported to disposal or recycling facilities. The shipment of this 

material via road, rail, or waterway will also result in emissions. 

• Production of Containers for Diverted Sludge: As indicated in Exhibit 2, EPA projects 

that approximately 1,800 tons of industrial sludge will be diverted from its current use as 

a fuel under the rules. To accumulate this material for off-site shipment, facilities will 

need to obtain large containers for temporarily storing this sludge. The production of 

these containers will lead to emissions of both criteria pollutants and HAP. 

• Emissions from Alternative Management: If non-hazardous secondary materials are 

diverted to disposal or recycling facilities as a result of the NHSM rule, emissions from 

disposal and/or recycling processes will partially off-set the reductions achieved by the 

Boiler MACT and CISWI controls. 

• Combustion emissions: Replacing non-hazardous secondary materials with virgin fuels 

may affect emissions from boiler and CISWI units, depending on the emissions profiles 

of individual non-hazardous secondary materials and virgin fuels. It is not clear whether 

this effect is captured in the regulatory impact analyses (RIAs) for the Boiler MACT and 

CISWI rules. 

To broaden the scope of the above EJ assessment that focuses on the emissions reductions from Boiler 

MACT and CISWI units, we conducted an analysis of the net emissions impact of the final rules that 

accounts for the effects outlined above, as well as the emissions reductions associated with the Boiler 

MACT and CISWI controls. Exhibit 3 summarizes our approach for estimating each of the diversionrelated emission impacts outlined above. 
EXHIBIT 3. METHODS FOR ESTIMATING EMISSIONS FROM DIVERSION OF SECONDARY MATERIALS ASSOCIATED WITH RULES 

DIVERSION-RELATED 

EMISSIONS IMPACT METHODOLOGY 

Upstream emissions from production of virgin fuels 

• To assess upstream emissions impacts associated with diverted materials, we first identify the virg

likely to replace each non-hazardous secondary material. The combustion unit databases developBoiler MACT and CISWI rules indicate the virgin fuel used by units expected to divert their non-haz

material. For units where the virgin fuel was not indicated in the combustion unit databases, we would be used as the substitute fuel. Based on this approach, we estimate that 319,089 MMBtu wcoal and that the remaining 92,171 MMBtu will be replaced by natural gas. 

• We obtained estimates of upstream emissions for coal and natural gas from the SimaPro lifecycle 

software. For both coal and natural gas, we used the Franklin U.S. (1998) upstream emissions estSimaPro. The coal emissions values were expressed as emissions per 1,000 pounds of coal producenatural gas values represented emissions per thousand cubic feet of gas. 

• To estimate total upstream emissions, we scaled the coal and natural gas emissions values from Si

estimated quantities of each fuel used as a replacement for the diverted non-hazardous secondary 

Transportation of secondary materials 

• The available data for the non-hazardous secondary materials expected to be diverted suggest tha

emissions are likely to be minimal. Therefore, we do not quantify these emissions as part of this a411,260 MMBtu of non-hazardous secondary material expected to be diverted, approximately 392,off-site (i.e., at a location other than where it is currently combusted). Thus, the emissions assoc

transporting the non-hazardous secondary material to a disposal or recycling facility would be off-reduction in emissions from avoiding transportation to combustion facilities. We assume this is a 

The remaining 18,800 MMBtu of diverted non-hazardous secondary material generated and burned 

represents less than 5 percent of the non-hazardous secondary material diverted; the transportatithis small amount are likely to be minimal relative to the other emissions impacts examined in thi

Production of containers for industrial sludge 

• We assume that diverted industrial sludge (that is generated and burned on-site in the baseline) w

steel vacuum roll-off boxes prior to off-site shipment. Based on specifications published by the Ba

we assume these containers have a 25 cubic yard capacity and weigh approximately 11,300 pound

• Lifecycle emissions data for vacuum boxes were not available from SimaPro. We, therefore, deve

based on the Ecoinvent 2.0 emissions data for steel contained in SimaPro and the assumed mass o(11,300 pounds). To estimate the number of containers necessary, we assume that industrial slud

density as water (1 kg/liter) and that each container would be emptied once a month. Based on t

estimate that seven containers would be necessary to store industrial sludge prior to disposal. Fo

analysis, we assume that these seven containers are produced on an annual basis (i.e., each conta

year lifespan). In practice, however, vacuum boxes may have a lifespan of several years, in which 
EXHIBIT 3. METHODS FOR ESTIMATING EMISSIONS FROM DIVERSION OF SECONDARY MATERIALS ASSOCIATED WITH RULES 

DIVERSION-RELATED 

EMISSIONS IMPACT METHODOLOGY 

would overestimate the emissions associated with these containers. 

Emissions from alternative management 

• Emissions associated with alternative management depend on whether the diverted non-hazardou

materials are disposed or recycled. For purposes of this analysis, we assume disposal for all diver

• Of the diverted non-hazardous secondary material types listed in Exhibit 2, we assume that divert

managed through incineration. To estimate emissions associated with incinerating used oil, we reemissions data from EPA (1995) and the Colorado Department of Public Health and Environment (1SimaPro. We then scaled these emissions per MMBtu values to the quantity of used oil expected tunder the final rules. 

• Criteria pollutant and HAP emissions associated with all other disposal methods (e.g., landfilling) 

minimal relative to the other emissions impacts examined in this analysis. 

Combustion emissions – changes in emissions at regulated units associated with transitioning to virgin fuels 

• The diversion of non-hazardous secondary materials from combustion units may lead to emissions 

units, as the emissions profile of the non-hazardous secondary materials may differ from that of t

used as substitutes. 

• We estimate this effect only for those non-hazardous secondary materials for which we were able 

emissions information. These include treated wood, used oil, refuse, plastics, and contraband. Tto estimate emissions associated with the combustion of these materials are as follows: 

o Treated Wood: Franklin US (1998) data in SimaPro; emissions expressed per 1,000 p

o Used Oil: Emissions data from EPA (1995) and the Colorado Department of Public He

Environment (1996) contained in SimaPro. 

o Refuse: Ecoinvent 2.0 record from SimaPro for “disposal, municipal solid waste, mix

water, to municipal incineration.” Emissions were given for 1 kg of refuse, which we analysis. 

o Plastics: Ecoinvent 2.0 record from SimaPro for “disposal, plastics, mixture, 15.3% w

municipal incineration.” Emissions were given for 1 kg of plastics, which we scaled f

o Contraband: The OAQPS combustion unit database describes the contraband expecte

as “prohibited goods, retired flags.” Based on this description, we use emissions asscombustion of textiles to estimate emissions for contraband. Textile emissions inforfrom the Ecoinvent 2.0 record in SimaPro for “disposal, textiles, soiled, 25% water, tincineration.” Emissions were given for 1 kg of textiles, which we scaled for the pur

analysis. 

• We estimate emissions from the combustion of coal and natural gas used as substitutes for non-h

secondary materials based on the Franklin (1998) emissions data in SimaPro. 
 

11

 

After estimating each of the diversion-related emissions impacts separately, we estimate the net emissions 

reductions as follows: 

(1) N = G- VU –S –A ± C

 Where N = Net emissions reduction 

G = Gross emissions reduction estimated by EPA for the final Boiler MACT and CISWI 

rules, without consideration of emissions associated with material diversion. 

VU = Upstream emissions increase associated with the extraction, processing, and 

transportation of virgin fuels used as substitutes for diverted non-hazardous secondary 

materials. 

S = Emissions increase associated with producing containers necessary to store industrial 

sludge diverted to disposal as a result of the final rule. 

A= Emissions increase associated with alternative management (e.g., disposal or 

recycling) of the diverted non-hazardous secondary materials. 

C = Change in combustion emissions (at boiler units and CISWIs) associated with 

combusting virgin fuels instead of non-hazardous secondary materials. This may be an 

increase or a reduction, depending on the emissions profiles of individual non-hazardous 

secondary materials and virgin fuels. 

Exhibit 4 presents the estimated net emissions impact of the final rules based on the methods outlined 

above. As indicated in the exhibit, the estimated emissions impacts associated with non-hazardous 

secondary material diversion are minimal relative to the emissions reductions achieved due to the Boiler 

MACT and CISWI air pollution controls. In percentage terms, diversion-related emissions are highest for 

SO2, at 5 percent of the SO2 emissions reductions estimated in the air rule RIAs. For all other pollutants 

analyzed, the emissions from diversion represent less than 1.5 percent of the estimated emissions 

reductions for the final Boiler MACT and CISWI rules. Given that the emissions reductions from Boiler 

MACT and CISWI controls far outweigh the increased emissions associated with non-hazardous 

secondary material diversion, the net result is a significant reduction in emissions across all pollutants 

analyzed. 

We note that estimates of combustion emissions were not readily available for animal fat, industrial 

sludge, process co-product solids, and used solvents. However, these non-hazardous secondary materials 

account for just one-quarter of the MMBtu diverted. Because we lack estimates of combustion emissions 

for these materials, we did not include the emissions from the combustion of their virgin fuel substitutes 

in our analysis. However, because the analysis shows that the emissions reductions from the Boiler 

MACT and CISWI controls far outweigh the increase in emissions associated with non-hazardous 

secondary material diversion, we believe not including these materials in the analysis does not change the 

overall result. 
EXHIBIT 4. NET EMISSIONS IMPACT – SCENARIO 1 (BOILER MACT AND CISWI RIAs DO NOT ACCOUNT FOR FUEL SU(TONS PER YEAR) 

NOX SO2 CO VOC PM HCL HG 

NON

MERCU

METAL

Emissions reductions associated with the Boiler MACT Rules and the CISWI Rule 

5,544 5,170 24,819 7,177 51,725 30,138 1.6 2,

CISWI 5,544 5,170 24,819 0 1,672 468 0.1 Boiler MACT: Area Source 0 0 0 0 2,533 0 0.1 Boiler MACT: Major Source 0 0 0 7,177 47,520 29,670 1.4 2

Upstream emissions from substitution to virgin fuels (8.65) (91.42) (12.86) (24.92) (36.64) (0.02) (1.54x10-5) (1.26x1Emissions from production of containers for diverted industrial sludge 

(0.17) (0.00) (0.92) (0.03) (0.31) (0.004) (3.68x10-5) (1.75x1

Emissions from disposal of diverted material (used oil incineration) 

(2.98) (23.03) (0.77) 0.00 (9.72) 0.00 0.00 (4.91x1

Changes in Emissions from Combustion of Virgin Fuels and Secondary Materials 

(66.06) (191.69) 97.77 (0.88) 2.94 0.00 (3.1 x 10-4) 7.5x

Emissions from burning of virgin fuel (71.80) (215.39) (10.10) (0.88) (8.11) 0.00 (3.1 x 10-4) (9.4x1Avoided emissions from not combusting non-hazardous secondary material 

5.74 23.70 107.88 0.00 11.05 0.00 (4.71x10-11) 1.69 x 

NET EMISSIONS REDUCTION 5,466 4,864 24,902 7,151 51,681 30,138 1.6 2,

1. Includes antimony, arsenic, beryllium, cadmium, chromium, cobalt, lead, manganese, nickel, and selenium. 2. Values in parentheses are negative. 
 

13

 

The results presented in Exhibit 4 strongly suggest that the rules will not result in adverse and 

disproportionate impacts for low-income and minority populations. Due to the net reduction in emissions 

resulting from the final rules, the population as a whole is likely to realize substantial human health and 

other benefits. While non-hazardous secondary material diversion may result in increased emissions from 

virgin fuel production and other activities, the emissions reductions overall at Boiler MACT and CISWI 

units represent the most significant changes in emissions resulting from the final rules. As indicated in 

Exhibit 1, low-income and minority populations near these facilities are higher than the national average, 

in proportional terms. Therefore, even if low-income and minority populations are disproportionately 

high near facilities where emissions increase due to non-hazardous secondary material diversion, the 

overall emissions impact in low-income and minority areas will be a reduction in emissions. 

ENVIRONMENTAL JUSTICE IMPACTS NEAR FACILITIES RECEIVING DIVERTED MATERIAL 

EPA’s final NHSM rule would define the following non-hazardous secondary materials as not being a 

solid waste: 

• Material used as a fuel that remains within the control of the generator (whether at the site of 

generation or another site the generator has control over) that meets the legitimacy criteria7

; 

• Material used as an ingredient in a manufacturing process (whether by the generator or outside 

the control of the generator) that meets the legitimacy criteria; 

• Discarded material is sufficiently processed to produce legitimate fuel or ingredient product that 

meets the legitimacy criteria; and 

• Material that has been determined through a case-by-case petition process to not have been 

discarded and to be indistinguishable in all relevant aspects from a fuel product. 

All other non-hazardous secondary materials that are burned in a combustion unit would be considered 

solid wastes under RCRA and therefore would be required to be managed in a unit regulated under 

section 129 of the CAA. 

Facilities that currently burn non-hazardous secondary materials considered to be solid wastes under the 

NHSM rule may continue to do so following the implementation of the rule (and incur costs to comply 

with the CAA section 129 requirements) or divert the non-hazardous secondary material to disposal or 

another beneficial use. The diversion of non-hazardous secondary materials away from combustion units 

will increase activity at disposal and processing/recycling facilities (e.g., increased transportation to these 

sites), which may create environmental exposure and nuisance concerns. These impacts may include the 

following: 

• Air emissions (quantified in Exhibit 4 above), 

• Odors, 

 

7

 As noted in the final rule, EPA has determined that some non-hazardous secondary materials burned as a fuel are 

not solid wastes when combusted even if burned in units not within the control of the generator. Specifically, scrap 

tires removed from vehicles and collected and managed under the oversight of established tire collection programs 

and resinated wood residuals are not considered to be discarded and are therefore not considered to be solid wastes 

under the final rule even if burned in units not within the control of the generator. 
14 

• Potential surface water and groundwater contamination from land disposal or processing 

operations, 

• Noise pollution, 

• Increased maintenance costs for local infrastructure (e.g., roads), and 

• Aesthetics 

To assess the potential EJ impacts for populations located near facilities receiving diverted non-hazardous 

secondary materials, we examined the demographic characteristics of populations living within three 

miles of these sites (RCRA Subtitle D facilities). Using block group data from the 2000 Census, we 

estimated the population of minorities (non-White) near each facility and the percentage of the population 

near each facility that is below the poverty line. The nationwide estimates for each facility type were then 

compared with the percent of the U.S. population characterized as minority and as below the poverty line 

(using data from the U.S. Census Bureau, 2000). We conducted this analysis nationally for landfills, 

demolition landfills, composting facilities, incinerators (municipal waste), material recovery facilities, 

transfer stations, and waste-to-energy plants. 

As indicated in Exhibit 5, the results of the analysis suggest that populations living near facilities that may 

receive non-hazardous secondary materials diverted from affected combustion units are located in areas 

where minority8

 and low-income populations are disproportionately high relative to the national average. 

The Exhibit also shows that the minorities’ share of the population within a three-mile buffer is greater 

than the national average (25 percent) for all seven facility types, ranging from 26 percent for landfills to 

38 percent for material recovery facilities. The percent of the population below the poverty line is greater 

than, or the same as, the national population average (13 percent) for all seven facility types, ranging from 

13 percent for composting to 17 percent for waste-to-energy plants. Therefore, to the extent that the nonhazardous secondary materials are diverted from combustion units as either a fuel or ingredient, it could 

lead to adverse environmental impacts at these facilities, which is uncertain and will vary by material and 

facility type, and low-income and minority populations could be disproportionately impacted. 

 

 

8

 Note that the first minority percent in Exhibit 5 does not include ethnicity and the second one includes ethnicity. 

EXHIBIT 5. THREE-MILE BLOCK GROUP ANALYSIS DEMOGRAPHIC SUMMARY 
15 

FACILITY TYPE 

(NUMBER ASSESSED) 

POPULATION 1 MINORITIES 

PERCENT 

MINORITY 2 

( % MINORITY, 

INCLUDING 

ETHNICITY)

POPULATION BELOW 

THE POVERTY LEVEL 

PERCENT BELOW 

POVERTY LINE 

Population within 3 Miles of Landfills 

Landfills (nonhazardous) (2,442) 31,610,889 8,374,113 26% (33%) 4,297,924 14% 

Construction and 

Demolition landfills 

(1,008) 15,496,949 4,994,262 32% (38%) 2,399,611 15% 

TOTAL: LANDFILLS 

(3,450) 47,107,838 13,368,375 28% (35%) 6,697,535 14% 

Population within 3 Miles of Other Sites 

Composting (271) 9,582,552 2,956,813 31% (39%) 1,288,310 13% 

Incinerators, 

municipal waste (36) 977,329 363,418 37% (39%) 157,839 16% 

Materials Recovery3

(1,247) 61,207,342 23,298,204 38% (46%) 9,735,122 16% 

Transfer Stations4

(3,042) 65,314,862 22,412,482 34% (42%) 9,878,917 15% 

Waste-to-Energy 

Plants5 (93) 5,584,477 2,026,576 36% (44%) 925,880 17% 

TOTAL: OTHER SITES 

(4,689) 142,666,562 51,057,493 36% (44%) 21,986,068 15% 

National Statistics 

for comparison6 25% (31%) 13%

Sources: The demographics are from the U.S. Census Bureau, 2000. The facility list is from “Waste Business 

Journal Directory & Atlas of Non-Hazardous Waste Sites 2008.” 

1. Population total represents the total number of people living within three miles of each facility type. 

2. The first number for “percent minority” presented in this table reflects racial minorities (non-Whites). 

The second number in parentheses includes ethnicity, it is calculated by subtracting the White race 

census results that are also not Hispanic/Latino from the overall population. 

3. Materials Recovery Facility: a facility that sorts and processes collected mixed recyclables into individual 

streams for market. Also known as an intermediate processing center. About one third (430) of these 

materials recovery facilities have combined operations with transfer stations. Those combined 

operations are not included in the transfer station demographics. 

4. Transfer Stations sites at which solid wastes are concentrated for transport to a processing facility or 

disposal site (i.e., landfill). Recycling and some processing may also take place at transfer stations. This 

does not include the 430 transfer stations that have combined operations with materials recovery 

facilities. 

5. Waste-to-Energy Plants are specially designed waste management facilities where waste is burned to 

create energy, which is captured for use in generating electricity. 

6. The nation-wide estimates reflect the population and demographics of the entire U.S. to be used for 

comparison, not just those populations living within three miles of affected facilities. The national 

results are based on the Census data as listed in the Major Boiler and CISWI demographics table (see 

Exhibit 1). 
16 

POTENTIAL DIVERSION-RELATED ENVIRONMENTAL JUSTICE IMPACTS FOR SELECT NONHAZARDOUS SECONDARY MATERIALS 

The EJ impacts associated with a given material under the final NHSM rule will depend significantly on 

whether a given material (or sub-categories of material – e.g., whole scrap tires) is considered a solid 

waste under the NHSM rule. In this section, we discuss the potential EJ implications of the final rule for 

certain non-hazardous secondary materials. 

Scrap Tires 

Under the final rule, scrap tires are considered a non-waste fuel when used under the following scenarios: 

1) Scrap tires removed from vehicles and collected and managed under the oversight of established 

tire collection programs and legitimately used as a fuel.9

 

2) Scrap tires that undergo a sufficient level of processing, when used as a legitimate fuel in a 

combustion unit, independent of whether they have been previously discarded. 

All other scrap tires are considered a waste when combusted, unless a non-waste determination petition is 

granted to the person burning the tires. 

Under this framework, EPA expects that most newly generated scrap tires would qualify as a non-waste 

legitimate fuel. Whole tires from scrap tire piles that are currently burned without processing, however, 

would be considered a solid waste under the rule. This could result in a 

slowdown in the abatement of tire stockpiles, potentially exposing local populations to increased risk 

from scrap tire fires (e.g., emissions-related risk and risk of property damage) and increased exposure to 

disease vectors (i.e., rodents and mosquitos). To the extent that scrap tire piles are located in areas with 

disproportionately high minority and/or low-income populations, a slowdown in the abatement of these 

stockpiles could lead to adverse EJ impacts. A quantitative assessment of these potential impacts would 

require comprehensive data on the location of scrap tire stockpiles, but such data are not readily available. 

We also note that the final rule will likely result in significantly less diversion of whole scrap tires away 

from cement kilns (to disposal facilities) than the proposed rule. Under the proposed rule, whole scrap 

tires were considered to be a solid waste when burned as a fuel, whereas whole scrap tires collected and 

managed under the oversight of an established collection program are not solid wastes under the final 

rule. Because cement kilns are the largest consumers of whole scrap tires as fuel, more cement kilns are 

likely to continue burning whole scrap tires under the final rule than they would have under the proposed 

rule, thus reducing the land disposal of scrap tires relative to the proposed rule. This implies that the final 

rule results in EJ benefits relative to the proposed rule, given that low-income and minority populations 

 

9

 These tires do not need processing (as described in §241.3(b)(4)), in order to be considered non-waste since they 

were not "discarded in the first place.” Since these tires were “not discarded in the first place,” boilers and cement 

kilns can use them as non-waste fuel as whole tires, shredded, or fully processed TDF at their discretion (provided 

they meet the legitimacy criteria). 
17 

near waste disposal sites tend to be disproportionately high (see Exhibit 6) and, based on data provided in 

comments on the proposed rule, cement kilns are typically located in areas with fewer minorities and less 

poverty.10

 

Used Oil 

Under the NHSM rule, used oil that meets the contaminant specifications in the 40 CFR Part 279 used oil 

regulations (i.e., on-spec used oil) is considered an alternative “traditional” fuel and thus, not a solid 

waste. Off-spec used oil, on the other hand, is considered a solid waste, even if burned within the control 

of the generator unless it is processed into on-spec used oil. 

Although off-spec used oil is considered a solid waste under the final rule, EPA does not expect that 

significant quantities of used oil will be diverted away from its current fuel use applications. As indicated 

in the used oil materials characterization paper developed in support of the final rule, only a small fraction 

(4 to 20 percent) of used oil is generated as off-spec.11 With the exception of used oil burned on-site by 

small generator-burners (burners with capacity below 10 MMBtu per hour), most of this off-spec used oil 

is likely collected and resold by used oil processing facilities. Under the final rule, these processing 

facilities can continue to collect off-spec used oil and blend it with readily available on-spec used oil or 

virgin fuel oil to create an on-spec blend not considered to be a solid waste when burned as a fuel. Thus, 

used oil sent to processors and resold in the baseline will likely be sent to processors and resold under the 

final rule as well, but may be blended to avoid off-spec status. 

With respect to used oil burned on-site by small generator burners, we would note that data submitted by 

commenters (and as indicated in the Materials Characterization Paper) a small fraction of the used oil is 

generated as off-spec used oil. The final rule states that this information maybe considered “other 

information” in determining whether used oil meets the on-spec. requirements pursuant to 40 CFR 

279.72. Thus, it is likely that small, private automobiles serviced by do-it-yourselfers (DIYers) and auto 

repair shops would burn on-spec used oil. Further we note that space heaters are not regulated under the 

Section 129 CISWI standards developed in conjunction with the final NHSM rule. Thus, we do not 

expect used oil (on-spec or off-spec) to be diverted from space heaters as a result of the rule. 

Given the limited potential for diversion of used oil under the final rule (both for used oil sent to 

processors in the baseline and burned by generators in space heaters), we anticipate minimal diversionrelated EJ impacts for used oil. 

Coal Refuse 

The final NHSM rule distinguishes between newly generated coal refuse and coal refuse reclaimed from 

legacy piles. While newly generated coal refuse is considered an alternative “traditional” fuel (and not 

discarded) under the final rule, coal refuse in legacy piles is considered discarded and must therefore be 

processed and meet the legitimacy criteria to be considered a non-waste fuel. As described in the 

preamble to the final rule, coal refuse that is recovered from legacy piles and undergoes processing 

similar to that for virgin coal would not be considered a solid waste, provided it satisfies the legitimacy 

 

10 Michel R. Benoit, Executive Director, Cement Kiln Recycling Coalition (CKRC), comment submitted to EPA on 

the Proposed Rule for the Identification of Non-hazardous Secondary Materials That Are Solid Waste, EPA 

document number EPA-HQ-RCRA-2008-0329-1572. August 25, 2010. 11 U.S. EPA, “Materials Characterization Paper In Support of the Final Rulemaking: Identification of Nonhazardous 

Secondary Materials That Are Solid Waste – Used Oil,” December 15, 2010.
18 

criteria, which EPA believes it does since currently mined coal is a legitimate fuel with characteristics 

similar to the material in legacy piles. 

Based on the provisions of the final rule as they relate to coal refuse, we do not expect any diversionrelated EJ impacts for newly generated coal refuse. Given that this material is considered an alternative 

“traditional” fuel under the final rule, we expect no changes in the use of this material as a fuel. 

Similarly, coal refuse from legacy piles that is processed similarly to coal is not a solid waste under the 

final rule. We therefore expect no diversion from baseline fuel applications for this material and no 

associated EJ impacts. 

Relative to the proposed rule, the final rule as applied to coal refuse is likely to lead to less significant EJ 

impacts in communities where legacy piles are located. Under the proposed rule, EPA considered the 

processing of coal refuse from legacy piles to be insufficient to render the coal refuse a non-waste fuel, 

even if the processing was similar to coal. Based on public comments received on the proposed rule, 

however, EPA has determined that processing procedures for coal refuse that are similar to those for coal, 

that such coal refuse should not be considered a solid waste. This processing serves to both increase its 

energy value, as well as reduce the level of contaminants in coal refuse. Given this difference in 

interpretation between the two rules, less coal refuse from legacy piles would likely be considered solid 

waste under the final rule than under the proposed rule. Therefore, the diversion-related EJ impacts for 

coal refuse are likely to be less significant under the final rule than under the proposed rule.