Burning "waste" or "fuel" triggers
potentially very difference air emissions limits. On Dec. 23, 2011,
the United States Environmental Protection Agency (EPA) proposed
Clean Air Act Rules to revise the Identification of Non-Hazardous
Secondary Materials that are Solid Wastes (NHSM Rule) and the
Standards of Performance for New Stationary Sources and Emissions
Guidelines for Existing Sources: Commercial and Industrial Solid
Waste Incineration Units (CISWI Rule), as well as two other rules
relating to industrial boilers (covered on a
separate Alert being issued today). The following is a summary
of the proposed changes to the NHSM Rule, with references to the
proposed reconsideration of the CISWI Rule where relevant. EPA will
only take comment on these changes, and not on the underlying Final
Rules. Comments on the proposed Rules must be received on or before
Feb. 21, 2012.
These proposed Rules amend the NHSM Rule and the CISWI Rule, which
were both published on March 21, 2011. The NHSM Rule became
effective on May 20, 2011. The CISWI Rule was stayed and has not
gone into effect. These Rules are linked because the NHSM Rule
defines what is a "waste," and any unit that combusts a
waste is a CISWI unit subject to the CISIW Rule (and not the Boiler
MACT or other MACT standard).
Many parties filed petitions for reconsideration of the CISWI Rule,
petitions for rulemaking to revise the NHSM Rule, and petitions for
review of both Rules in the D.C. Circuit Court of Appeals. EPA
agreed to reconsider the CISWI Rule. However, EPA initially refused
to reopen the NHSM Rule, preferring to address issues through
guidance rather than rulemaking. Finally, in October 2011, after
legislation passed the House of Representatives that would force
EPA to revise the NHSM Rule, as well as the CISWI Rule and the
Boiler MACT Rule, EPA sent a letter to the lead sponsors of the
companion Senate Bill informing them that they would issue a formal
proposal to revise the NHSM Rule.
NHSM Regulatory Proposals
Definitions
EPA is proposing changes to three definitions: clean
cellulosic biomass (providing more examples),
contaminant (adding precursors and dropping products of
combustion and contaminants not expected to be found in
non-hazardous secondary material), and established tire
collection program (making technical changes to include
off-specification tires and programs established by
contract).
Presumption of discard: In response to the concern
that EPA has categorically defined all secondary materials that are
transferred to third parties as wastes, EPA is proposing to change
the language of 40 CFR 241.3(a) to say that "non-hazardous
secondary materials that are combusted are presumed to be solid
wastes." Thus, EPA is opening up for comment the issue of the
scope of its authority under RCRA and where the burden should lie
when making a determination whether a material is or is not a
"waste."
Contaminant legitimacy criterion: In response to
the concern that many legitimate fuels would be classified as
wastes under the NHSM Rule, EPA is proposing to change the
legitimacy criterion relating to levels of contaminants (proposing
to amend 40 CFR 241.3(d)(iii)). First, EPA adds the phrase "or
groups of contaminants" to the regulatory language to allow a
combustor to look at classes of contaminants, not individual
contaminants, when determining whether the levels are comparable to
levels found in traditional fuels. Second, when identifying what
traditional fuels may be used for comparison, EPA proposes to
clarify in the regulatory language that the term "designed to
burn" does not mean that a unit must be permitted to burn or
actually burn a particular traditional fuel to allow a comparison
to that fuel. Third, EPA proposes to clarify in the regulatory
language that, when making comparisons, "persons can use
ranges of traditional fuel contaminant levels compiled from
national surveys, as well as contaminant level data from the
specific traditional fuel being replaced." EPA has added some
national survey data to its website.
Non-waste determination: In response to the
concern that the NHSM Rule would identify NHSM as waste even when
its overall use as a fuel is legitimate, EPA is proposing to add
new section 241.4 to the Rule, to provide a regulatory process for
EPA to make national determinations that certain categories of
materials are non-wastes, even if they do not meet all the
legitimacy criteria. EPA is proposing to identify scrap tires
managed in an established tire collection program and resinated
wood as non-wastes and is taking comment on two other
materials.
In general, the proposed changes to the NHSM Rule will make it
easier for a combustor to demonstrate that a secondary material is
not a waste. However, the burden of proof that a fuel is a
non-waste remains on the combustor. The CISWI Rule requires a
combustor to keep records supporting this determination of
legitimacy. Failure to keep records turns the NHSM material (even
if legitimate) into a waste and the combustion unit into a CISWI
unit.
Relevant CISWI Provisions
Contained gaseous material
In the proposed revisions to the CISWI Rule, EPA proposes to
keep the existing definition of contained gaseous material. Both
the CISWI proposal and the NHSM proposal also include preamble
language stating that there is no intent to change EPA's
interpretation of what constitutes a contained gas under RCRA.
Thus, EPA has reaffirmed its long-standing position that contained
gases (which are solid wastes under RCRA) include only gases in
containers, and not gases in pipelines, so flares are not
automatically CISWI units.
Other definitions: EPA is taking comment on other
CISWI definitions including: burn-off oven, chemical recovery unit,
cyclonic burn barrel, foundry sand thermal reclamation unit,
homogenous wastes, laboratory analysis unit, soil treatment unit,
space heater, and waste burning kiln. These definitions are
important because they define what is and is not subject to the
CISWI Rule.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.