Energy and Environment MonitorU.S. EPA is proposing criteria to be used to determine if non-hazardous secondary materials are solid wastes when burned as fuels or used as ingredients in a combustion unit for purposes of the Clean Air Act (CAA). In particular, U.S. EPA is proposing four categories for when such materials are not solid wastes: (1) non-hazardous secondary materials used as fuels that remain within and are combusted within the control of the generator and that meet the legitimacy criteria discussed below; (2) non-hazardous secondary materials used as ingredients in a manufacturing process and that meet the legitimacy criteria; (3) materials that meet the legitimacy criteria and have been sufficiently processed into a fuel or ingredient from non-hazardous secondary materials that have been discarded; and (4) non-hazardous secondary materials used as a fuel that does not remain within the control of the generator for which EPA grants a facility’s petition for a non-solid waste determination. For the text of the proposed rule (75 Fed. Reg. 31,844, June 4, 2010), click here.
In addition to this proposed definition of solid waste, U.S. EPA is also proposing emission requirements under CAA §112 for industrial, commercial, and institutional boilers and process heaters at major sources (75 Fed. Reg. 32,006, June 4, 2010) and boilers at area sources (75 Fed. Reg. 31,896, June 4, 2010) and emission requirements under CAA §129 for commercial and industrial solid waste incinerators (75 Fed. Reg. 31,938, June 4, 2010). The final definition of solid waste will determine which units are classified as boilers and which are classified as incinerators under the CAA. The definition is important because standards under both §112 and §129 must be based on the actual performance of the best performing sources in each category. Putting the wrong sources in a category may skew the standards for that category resulting in the likelihood that a court will set aside those standards. The proposed definition of solid waste, if finalized, would mean that more combustion units would fall under the category of incinerators than the category of boilers. In addition to setting emission limitations for nine pollutants, §129 includes requirements for siting, monitoring, and operator training. Comments are currently due August 3, 2010 (75 Fed. Reg. 32,682, June 9, 2010).
As mentioned above, secondary materials used in a combustion unit must meet U.S. EPA’s proposed legitimacy criteria. For legitimate fuels, non-hazardous secondary materials must be handled as a valuable commodity, have meaningful heating value, be used as a fuel in a combustion unit that recovers energy, and contain contaminants at levels comparable to those in traditional fuels. For legitimate ingredients, the non-hazardous secondary material must be handled as a valuable commodity, provide a useful contribution, result in a valuable product or intermediate, and result in products that contain contaminants at levels that are comparable in concentration to those found in traditional products that are manufactured without the non-hazardous secondary material.
Under the proposal, “contaminants” refer to the hazardous air pollutants (HAPs) listed under CAA §112 and the nine pollutants listed under CAA §129, and “comparable” levels of contaminants refer to levels that are comparable or less than those in traditional fuels or traditional products that are manufactured without the non-hazardous secondary material ingredients. For a secondary material used as a fuel or as an ingredient to be handled as a valuable commodity, it must be “contained” in the same manner as the analogous fuel or ingredient. If there is no analogous fuel or ingredient, then the secondary material must be contained. A secondary material with a heating value greater than 5,000 Btu/lb, as fired, would be considered to satisfy the criterion of a “meaningful heating value”.
The proposal also includes a definition of processing. Under the proposal, a discarded non-hazardous secondary material would have to be changed or transformed into a new fuel or new ingredient product. Something more than a minimum level of processing would be required to produce a non-waste fuel or ingredient. The proposed regulatory definition of processing “includes, but is not limited to, operations that: remove or destroy contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying the material in combination with other operations; chemically improve the as-fired energy content; and improve the ingredient characteristics.” Examples of sufficient processing identified in the preamble to the proposed rule include changing the mass, chemical make-up, or removing particular components from the non-hazardous secondary material. Minimal operations such as cutting or sizing a material would not be sufficient. For example, the processing of coal refuse for use as a fuel or ingredient, which involves separation through the use of screens or grizzlies, blending, crushing, and some drying, would not meet the processing definition proposed even though virgin coal is similarly processed.
Because U.S. EPA wants a flexible rule that can accommodate increasing use and changes in technologies, secondary materials, commodities, and fuel prices, U.S. EPA is not proposing to list specific non-hazardous secondary materials as either wastes or non-wastes in regulatory language. However, the preamble to the proposed rule includes a number of specific examples. For specific examples of U.S. EPA’s proposed classifications of non-hazardous secondary materials used as fuels, click here. For specific examples of U.S. EPA’s proposed classifications of non-hazardous secondary materials used as ingredients, click here. For specific examples of U.S. EPA’s proposed classifications of non-hazardous materials processed into fuel products or ingredient products, click here.
The proposed rule does not include a de minimis exemption. Boiler chemical cleaning waste, oily rags or other de minimis amounts of solid waste would have to meet the requirements of CAA §129 if burned in a combustion unit under the proposed rule.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.
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