Final Denial of Non-Hazardous Secondary Materials Rulemaking Petition

On this page:

• Rule Summary
• Rule History
• Additional Resources

Rule Summary

On October 18, 2023, EPA denied a petition from a coalition of industry members: American Forest and Paper Association, Association of American Railroads, Treated Wood Council, American Short Line and Regional Railroad Association, and American Wood Council. This rulemaking petition requested revisions to the Non-Hazardous Secondary Materials regulations. The petitioners asked for regulatory changes that would increase the maximum allowable quantity of creosote-treated railroad ties that can be burned in equipment that would normally burn traditional fuels like wood or natural gas. They also requested a change to the definition of “paper recycling residuals,” which are the materials left over from paper and cardboard recycling. The NHSM regulations establish standards and procedures for identifying whether non-hazardous secondary materials are solid wastes when used as fuels or ingredients in combustion units (e.g., boilers). Such a determination is important for ensuring that NHSM fuels are only burned in units that are appropriately designed to burn them.

The petitioners requested the following amendments:

1. Change the legitimacy criterion for comparison of contaminants in the NHSM to the traditional fuel the unit is designed to burn from mandatory to “should consider;"
2. Remove associated designed to burn and other limitations for creosote-treated railroad ties; and
3. Revise the definition of paper recycling residuals to remove the limit on non-fiber materials in PRR that can be burned as a non-waste fuel.

EPA is finalizing the denial of all three requested amendments for the reasons explained in the Federal Register notice. While the first two requests are focused on increasing boiler capacity for burning creosote-treated railroad ties, the requested regulatory changes would negatively affect the NHSM program more broadly, increasing the quantities of contaminants that could be burned in equipment that is not appropriately designed to burn them. This would potentially increase emissions, which would most likely be borne disproportionately by minority and low-income communities, since the facilities in question are more frequently located in such areas.

Regarding the third petition request, paper recycling residuals with significant quantities of non-fiber materials (e.g., clays, starches, etc.) may lack meaningful heating value and could be solid wastes when combusted. In addition to denying this rulemaking petition, EPA is changing the definition of paper recycling residuals to set a minimum heat value the residuals must meet in order to be considered a non-waste fuel, rather than the previous language limiting non-fiber content to “small amounts.” This performance-based threshold will reduce regulatory uncertainty and ensure residuals burned as non-waste fuel are being legitimately and beneficially used and not simply being discarded through combustion.

• View the final rule in the Federal Register. 

Rule History

On March 21, 2011, EPA promulgated the base NHSM regulations titled “Identification of Non-Hazardous Secondary Materials that are Solid Waste” establishing Title 40 of the Code of Federal Regulations Part 241. The March 2011 NHSM final rule provides the standards and procedures for identifying whether NHSMs are solid waste under RCRA when used as fuels or ingredients in combustion units.

Subsequent rulemaking efforts have expanded and clarified the 40 CFR Part 241 regulations:

• In 2013, the EPA amended the NHSM rules to clarify several provisions to implement the non-hazardous secondary materials rule as the agency originally intended.
• In 2016, the EPA published final NHSM rule amendments that provided a categorical non-waste fuel determination for CTRT that undergo, at a minimum, metal removal and shredding or grinding and are used as fuel in units designed to burn both biomass and fuel oil as part of normal operations and not solely as part of start-up or shut-down operations.
• In 2018, a similar categorical non-waste fuel determination was applied to creosote-borate and mixtures of creosote and certain non-creosote treated railroad ties (i.e., other treated railroad ties).

On December 7, 2018, a coalition of industry petitioners submitted a rulemaking petition to EPA to request the removal of restrictions in the regulation that affect the burning of creosote-treated railroad ties and paper recycling residuals as non-waste fuel under 40 CFR Part 241. 

On January 28, 2022, EPA proposed to deny the petition. EPA accepted comments on the proposal through March 29, 2022:

• View the proposal in Federal Register.

Additional Resources

• Petition for rulemaking to amend the legitimacy criteria in 40 CFR Part 241, the categorical non-waste fuels classification criteria for creosote treated railroad ties and other treated railroad ties, and the definition of paper recycling residuals (pdf).
• Information about identification of non-hazardous secondary materials that are solid waste.
• January 28, 2022, proposed denial.