Check Out the Ingredients For This Recipe

Any good cook is always a little fussy when preparing their favorite recipes, the ingredients need to be fresh and from a trusted source.  After all, the guest’s experience with the food reflects directly on the cook’s reputation.  Well it is no different in the industrial sector where, as an environmental manager, your knowledge and trust in your alternate fuel can have a significant impact on how well you can manage your environmental reputation with state and federal agencies.  Furthermore, you do not want to find yourself in a situation where you expected one set of regulations to apply to your facility only to find out that a different set of more stringent ones apply.  By now, you probably suspect that the “culinary” issues that we are discussing are really non-hazardous secondary materials (NHSM) determinations and applicability of the Industrial/Commercial/Institutional Boilers and Process Heaters (i.e., the Boiler MACT) or the Commercial/Industrial Solid Waste Incinerators (CISWI) regulations.  Just like a good chef relies on the quality of his ingredients, you will want to know the pedigree of any alternate fuels that are currently an important component of your operations. 

Currently, if you are using alternate fuels, you should be actively reviewing your obligations under the Boiler MACT or CISWI regulations.  Most likely your plan is to be regulated under the Boiler MACT, and thus, you need to be certain that your use of an alternate fuel meets the non-waste criteria under the NHSM rule.  If your alternate fuel is a traditional fuel as defined by U.S. EPA, then your confidence in Boiler MACT applicability should be high.  If your alternate fuel is not a traditional fuel, then you should really start to initiate a legitimacy demonstration.  As an example, suppose you are using a “green” engineered fuel prepared by a local supplier that contains a post-consumer plastics component.  Are you confident that the biomass component and the consumer plastic components of the green engineered fuel qualify as a non-waste?  As the end-user of the fuel, you will bear the final responsibility for how the fuels could re-classify your combustion unit.

So what do you need to consider as part of the process for demonstrating that your fuel is a legitimate fuel and not a solid waste?  Well first, you might consider who should prepare the legitimacy demonstration for your specific facility, you or your fuel supplier. You might also consider whether simply delaying the development of a legitimacy demonstration might be the best course of action, after all, a change in the regulations or taking advantage of someone else’s legitimacy demonstration might affect the amount of effort that you need to spend on your legitimacy demonstration.  Finally, if you do proceed with your own legitimacy demonstration, do you request regulatory (U.S. EPA regional) review of your demonstration even though it is not specifically required?  Here are our recommendations related to these three considerations.

Who should prepare the legitimacy demonstration? 

It is important to note that the legitimacy demonstration is your facility’s documentation and that it resides in your facility’s files.  You will want to make certain that you can stand behind it.  Therefore, we recommend that the primary responsibility for initiating the legitimacy demonstration be yours.  Where your fuel supplier can contribute valuable information, request that they do so.  If analytical data are required, ask your fuel supplier to develop the data, but be prepared to undertake your own sampling/analytical program to achieve your comfort level that the fuel is a non-waste.

Can I just wait awhile before beginning the legitimacy demonstration? 

The NHSM, Boiler MACT, and CISWI regulations all have revisions pending and the potential for litigation is high, so it would be disingenuous to deny that playing the waiting game could be a valid course of action.  However, the proposed revisions to the NHSM rule do not substantially alter the legitimacy demonstration process other than to offer a process for proposing categorical exemptions for alternate fuels.  Whether a particular alternate fuel could qualify for a categorical exemption and who would champion the exemption process is unknown.  So the decision regarding when to begin the legitimacy demonstration boils down to the question of how comfortable you are relying on outside forces to define your course of action or whether you prefer to initiate a process where you are in control.

Do I need regulatory sign-off on my legitimacy demonstration?

For a legitimacy demonstration required under 40 CFR Part 241.3(b)(4), no federal agency review or approval is required.  However, there are companies that have requested that U.S. EPA confirm the findings of their legitimacy demonstration.  To date only a handful of findings have been issued by U.S. EPA regional offices, and each of the findings has included a caveat stating that different information could result in different determinations made regarding the non-waste status.  If you feel that your alternate fuel consists of components that are different from other components that you have encountered or if your corporate environmental policy routinely seeks agency approval for projects, then the effort to obtain agency review is worthwhile.  However, when submitting your legitimacy demonstration for agency review, remember to be careful about the level of detail associated with your legitimacy demonstration.  For example, describing an extensive sampling program as part of your legitimacy program can set a precedent that the regulatory agency could come to expect.  It is probably better to provide a generic description about a component associated with your legitimacy demonstration even though you intend to institute a very detailed program for ensuring the non-waste status of your alternate fuel. 

Read this blog next month for additional insight regarding legitimacy demonstrations and what they should include.  And if you need more information about the NHSM rule, be certain to contact any of the following individuals; Ron Harding or Dan Holland.