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EPA Issues New Rule to Identify Non-Hazardous Materials that are Solid Waste When Used as Fuels or Ingredients in Combustion Units
Deb Hunsicker, R.E.A. Senior Analyst, Sagle, ID
A wide range of secondary materials are burned in boilers or industrial furnaces as a substitute for primary fuels, or as ingredients. Under the Clean Air Act (CAA), EPA has set emissions standards for incinerators (including Commercial and Industrial Solid Waste Incinerators) and for boilers and process heaters. EPA's Commercial and Industrial Solid Waste Incineration definitions rule, issued in 2005, excluded those combustion units used to recover energy for a useful purpose from the definition of solid waste incinerator. These units were subject to the emissions standards for commercial, industrial, and institutional boilers issued under section 112 of the CAA rather than the emissions standards for solid waste incineration units issued under section 129 of the CAA (emissions standards for incinerators differ from the standards for boilers and process heaters, which allow less stringent requirements for smaller sources). This rule was challenged, and the court determined that the CAA requires any unit that burns "any solid waste material at all", regardless of whether the material is being burned as fuel, to be regulated under CAA section 129 as a "solid waste incineration unit.
In response to the court's decision, EPA published a final rule on March 21, 2011 (76 FR 15456) to identify which non-hazardous secondary materials, when used as fuels or ingredients in combustion units, are "solid wastes" under the Resource Conservation and Recovery Act (RCRA). This distinction determines which CAA standard is applied when the material is burned as follows:
- Units that burn non-hazardous secondary materials that are solid waste under RCRA are subject to the standards for solid waste incineration units.
- Units that burn non-hazardous secondary materials that are not solid waste under RCRA are subject to standards for commercial, industrial, and institutional boilers.
Secondary material is defined as any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, off- specification commercial chemical products or manufacturing chemical intermediates, post-industrial material, and scrap. Non-hazardous secondary material means a secondary material that, when discarded, would not be identified as a hazardous waste.
Examples of non-hazardous secondary materials designated as solid wastes when burned in combustion units: whole scrap tires from waste tire piles; off-specification used oil; sewage/wastewater treatment sludge; contaminated construction and demolition material; and chromate copper arsenate treated wood.
Examples of secondary materials designated not to be solid wastes (if they meet the legitimacy criteria) when burned in combustion units: clean biofuels/biogas processed from solid waste; scrap tires from vehicles managed under established tire collection programs and tire-derived fuel from the processing of scrap tires; and materials, such as cement kiln dust, coal ash, and foundry sand that are used as ingredients in manufacturing processes (e.g., in cement kilns).
In the final rule, EPA determined that most non-hazardous secondary materials burned in combustion units are defined as solid wastes under RCRA, with the following exceptions:
- Materials that are used as a fuel in a combustion unit that remains within the control of the generator (whether at the site of generation or another site the generator has control over) and that meets the legitimacy criteria (discussed below).
- The following materials used in a combustion unit that have not been discarded and meet the legitimacy criteria when used as a fuel (by the generator or outside the control of the generator): scrap tires removed from vehicles and managed under the oversight of established tire collection programs and resinated wood.
- Materials used as an ingredient in a manufacturing process (whether by the generator or outside the control of the generator) that meets the legitimacy criteria.
- Material that has been sufficiently processed to produce a fuel or ingredient product that meets the legitimacy criteria.
- 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.
Materials are considered legitimate fuels or ingredients if they conform to specific "legitimacy criteria" designed to ensure that the fuel or ingredient is not being "sham" recycled for the sole purpose of avoiding being considered a waste. To meet the legitimacy criteria, a secondary material must: (1) be managed as a valuable commodity; (2) have meaningful heating value and be burned in units that recover energy; and (3) contain contaminants that are comparable to or lower than those found in traditional fuel products.
The final rule also clarifies that materials designated as "traditional" fuels are not wastes when used in combustion units. Traditional fuels are defined as materials that are produced as fuels and are unused products that have not been discarded and therefore, are not solid wastes, including: (1) fuels that have been historically managed as valuable fuel products rather than being managed as waste materials, such as coal, oil and natural gas and their derivatives, and cellulosic biomass (virgin wood); and (2) alternative fuels developed from virgin materials that can now be used as fuel products, including used oil which meets used oil specifications in 40 CFR 279.11, and clean cellulosic biomass.
Note that the final rule only identifies which non-hazardous secondary materials are solid wastes under RCRA when combusted so that EPA can establish appropriate standards under CAA; it does not address the question of which non-hazardous secondary materials are or are not solid wastes in any other beneficial use or recycling situation.
Lastly, it is important to remember that states fully implement the RCRA Subtitle D program and may have their own laws and regulations regarding what constitutes a solid waste, and may have established their own beneficial use programs.
Deborah Hunsicker, REA, is an STC Senior Analyst and regulatory specialist, located in Sagle, ID. She has over 20 years experience in environmental consulting and regulatory compliance. Deb is a recognized expert in federal and state hazardous waste and hazardous materials regulatory issues, and has assisted various legal and industrial clients in the development of customized environmental auditing protocols, legal requirements analyses, ongoing regulatory tracking, and compliance programs, as well as the assessment of enforcement options. For more information about these or other EPA proposed rules, contact Deb at (208)255-2780 or by email DHunsicker@stcenv.com |
