1 

ASSESSMENT OF THE POTENTIAL COSTS, BENEFITS, 

AND OTHER IMPACTS 

FOR THE 

PROPOSED RULE 

CATEGORICAL NON-WASTE DETERMINATION FOR SELECTED NON 

HAZARDOUS SECONDARY MATERIALS (NHSMs): 

CONSTRUCTION AND DEMOLITION WOOD, RECYCLING PROCESS RESIDUALS, 

and CREOSOTE-TREATED RAILROAD TIES 

(Additions to List of Section 241.4 Categorical Non-Waste Fuels) 

Economics and Risk Analysis Staff 

Office of Resource Conservation and Recovery 

U. S. Environmental Protection Agency 

1200 Pennsylvania Ave., N. W. 

Washington, DC 20460 

July 22, 2013 

8/2713 
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. 

 

1

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

Today’s action proposes to add three additional materials to the list of categorical nonwaste fuels: construction and demolition (C&D) wood, paper recycling residuals, and cresote 

treated railroad ties. These materials are described more fully below. 

Need for Regulatory Action: 

Today’s proposed 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: 

This document presents our assessment of costs, benefits, and economic impacts of the 

proposed categorical determination amendments to the NHSM rule. These new categorical non 

waste determinations may affect the behavior of the generators of these materials, or the 

behavior of affected combustion units concerning a choice of fuels. The identification of these 

potential behavioral changes, and the economic effects they may indirectly engender, are the 

focus of this economic assessment. Any behavioral changes and corresponding cost, economic, 

and environmental effects will occur in response to the implementation of this NHSM rule, 

combined with requirements established under the boiler MACT and CISWI final rules. 

SUMMARY OF THE PROPOSED RULE AND ALTERNATIVES 

Proposed 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 proposes to add three additional 

materials to the list of categorical non-waste fuels: (1) construction and demolition (C&D) wood 

processed by trained workers from construction and demolition debris according to best 

management practices; (2) paper recycling residuals (PRRs), including old corrugated cardboard 

(OCC) rejects, generated from the recycling of recovered paper and paperboard products and 

burned on-site by paper recycling mills whose boilers are designed to burn solid fuel, and (3) 

creosote-treated railroad ties that are processed and 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 proposal. 
4 

 Option 1: Selected NHSMs Defined as RCRA Solid Waste: 

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 in an appropriate landfill. 

 Option 2: Expanded RCRA Management Requirements:

 Rather than proposing the selected NHSMs as categorical non wastes (subject to 

identified management requirements), another alternative regulatory option may be to propose 

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 

currently proposed 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 proposed 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 proposal 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 proposing to list three additional non hazardous secondary 

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

 

 

2

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

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

construction and demolition debris according to best management practices; 

• paper recycling residuals (PRRs), including old corrugated cardboard (OCC) rejects,

generated from the recycling of recovered paper and paperboard products and burned onsite by paper recycling mills whose boilers are designed to burn solid fuel, and 

• creosote-treated railroad ties that are processed and 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. However, the minimal processing necessary to convert these materials into a 

valuable fuel is generally applied. 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 processed and 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. 

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, 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 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

 

 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 

 

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. 

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 

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 is included in this proposal. 

 GENERAL APPROACH 

Introduction 

This assessment evaluates the general scope and direction of impacts potentially 

associated with the rule, as proposed. 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 proposed 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 proposed 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 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 

 

23 See Preamble to the Proposal: Table 4 – Contaminant Ranges in Traditional Fuels & CTRT. 
10 

diversion to fuel use, depending upon PRR boiler design.24 Approximately 62 percent 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 proposed 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. 

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 

 

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 

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

Potential burner impacts are examined under the proposed 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 proposed 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.

Proposed 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 

operating under section112 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: 

 

29 A facility may operate one or more combustion units. 

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). 
12 

Under this option, C&D wood and PRRs would be proposed as 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 proposed 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 proposed rule, if finalized, and 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 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

 

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] 

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. 
13 

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 205,000 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 

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 

 

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 

been assessed. Finally, all affected entities would face the one-time direct RCRA associated cost 

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

Certification Statement for C&D Wood 

 The proposal 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 construction and demolition 

debris must be managed according to 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, chromium copper 

arsenate, or other copper, chromium, or arsenical preservatives. In addition: 

o C&D processing facilities that use positive sorting—where operators pick out 

desirable wood from co-mingled debris—must either: (1) exclude all painted 

wood from the final product fuel, (2) use X-ray Fluorescence to ensure that 

painted wood included in the final product fuel does not contain lead-based paint, 

or (3) require documentation that a building has been tested for and does not 

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

o 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: (1) remove painted 

wood, (2) use X-ray Fluorescence to detect and remove lead-painted wood, or (3) 

require documentation that a building has been tested for and does not include 

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

o Combustors of C&D wood must request 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, as defined above. 

 The preparation of the written certification statement and the requirement to maintain 

certification is the responsibility of the processor. 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

 

40ICR for Additions to List of Section 241.4 Categorical Non-Waste Fuels 

.

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. 
15 

 Our preliminary estimate indicates that this certification statement would cost 

approximately $299 for each processor to prepare. Appendix C presents more details on this 

certification 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 for the burners. 

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 proposed rule affects 

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

proposed 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. 

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, as proposed, 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. 

 

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) 

43 See Section V of the Proposed Rule Preamble: Proposed Categorical Non-Waste Listing Determinations. 
16 

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 newly-proposed 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 proposed 

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. 

• Regulatory flexibility: focuses on the potential effects of the proposed rule on small 

entities; 

• Unfunded mandates: examines the implications of the proposed 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 proposed rule on the 

health of children; 

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

distribution; 

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

populations. 

Joint Impacts of Rules
17 

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 a “significant regulatory 

action” because it may raise novel legal or policy issues. Accordingly, the EPA submitted this 

Assessment to OMB for review under Executive Order 12866. Any changes made to this 

document in response to OMB recommendations have been documented in the docket for this 

action. 

Regulatory Flexibility: 

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 
18 

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 proposed 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 proposed 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 proposed 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 proposed 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 

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, as proposed, will not impose direct compliance costs on state 
19 

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 

proposed 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 

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 proposed 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 proposed rule to result in an indirect disproportionate effect on 

 

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 

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 e 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. 

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 proposed action are not generated in quantities sufficient to 

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

national level. 

 

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 

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, as proposed. The NHSMs proposed to be 

categorically listed as non-waste 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 

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 

 

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. 

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

“White Hispanic.” 
22 

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 proposed 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 proposed rule, 

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

actual application in the context of these other regulatory regimes. Thus, the proposed rule 

shares joint impacts with existing, and prospective regulatory initiatives. 

Examples of other rules or regulatory initiatives with which the proposed 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. 
23 

APPENDIX A 
24 

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. 
25 

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 
26 

APPENDIX B 
Estimated NHSM Quantities Generated and Burned for Fue

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 2013 

* Generation, Management, and Processing of Paper Processing Residuals. 26, 2012. * Maximum Reported Quantity: 450,000 tons/yr. Estimate assumes 10 perstatement 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 2013 

* Generation, Management, and Processing of Paper Processing Residuals. 

26, 2012. * Maximum Reported Quantity: 600,000 tons/yr. Estimate assumes 10 perstatement 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. 

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. 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 Rulema

Secondary Materials That are Solid Waste - Construction and Demolition Ma

February 3, 2011 

Low-End Estimate: C&D Wood Currently Burned for Fuel 4,700,000 short tons/year 2010 

* U.S. EPA. Materials Characterization Paper in Support of the Final Rulema

Secondary Materials That are Solid Waste - Construction and Demolition Ma

February 3, 2011 

High-End Estimate: C&D Wood Currently Burned for Fuel 11,200,000 short tons/year 2010 

* U.S. EPA. Materials Characterization Paper in Support of the Final Rulema

Secondary Materials That are Solid Waste - Construction and Demolition Ma

February 3, 2011 
Estimated NHSM Quantities Generated and Burned for Fue

Input Factor

Value/

Quantity Units Year Source/Comments

* Note: 4.7 million ton estimate and 6.5 million ton estimate added togethe* Note: The high-end estimate may include an undetermined portion of noclearing 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 Tra

* 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

* 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

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

* Note: Assumed that the 5 percent of total that is currently going to legacy fuel. Low quality landscaping quantities may also be affected, based on ma* Note: Crossties no longer going to burning assumed to be used as legacy tcost 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* Note: Estimates ranged from about 130 to 200. However, the Smith pape

most carefully researched. 
29 

APPENDIX C 
30 

NHSM Categorical Non Waste Determination - Proposed Rule 

Burden and Cost Assessment for Proposed Certification Statement for C&D Wood Processors

Summary of Requirement: 

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

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

in accordance with best management practices, as defined in the rule. 

Assumptions and Data:

Certification Activities and Assumptions per Processing Facility:50

• 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; 

• Prepare certification statement; 

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

• Submit certification statement to the C&D wood burner; 

• 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. 

Analytical Inputs: 

 Total average annual hours and cost per hour estimated to prepare, and make statement 

available for review: 

• Estimated hours50 and hourly cost51 per facility 

o 1.00 (60 min) hrs for legal @ $92 per hour, 

o 1.50 (90 min) hrs for management @ $76 per hour, 

o 1.25 (75 min) hrs for technical @ $66 per hr, 

o 0.35 (21 min) hrs for clerical @ $29 per hr. 

Findings:

Estimated Total Annual Average Cost per facility: $298.65

Estimated Total Annual Average Burden per facility: 4.1 hours

 

50 Supporting Statement for Information Collection Request Number 2421.01, “Conditional Exemption From RCRA 

Definition of Hazardous Waste for Carbon Dioxide Streams Injected Into Class VI UIC Wells – Proposed Rule.” 

Exhibit 1. October 28, 2010 

51 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.