Nonhazardous Secondary Materials Rule (NHSM) Update: Court Says No…To Everyone

On June 3, 2015, the U.S. Court of Appeals for the District of Columbia Circuit issued a per curiam judgment rejecting challenges to U.S. EPA’s Nonhazardous Secondary Materials (NHSM) Rule from petitioners representing both environmentalists and industrial stakeholders.  The NHSM Rule defines which NHSMs are considered wastes (thereby potentially subject to the more stringent incinerator rules) and which are not (thereby potentially subject to the less stringent combustion rules).  See previous blogs for more general information pertaining to the NHSM Rule.  The NHSM Rule categorically exempts certain NHSM as non-wastes, including:

• Scrap tires that are not discarded and are managed under the oversight of established tire collection programs [40 CFR §241.4(a)(1)].
• Resinated wood [40 CFR §241.4(a)(2)].
• Coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse [40 CFR §241.4(a)(3)].
• Dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials [40 CFR §241.4(a)(4)].

Individuals also have the option of petitioning U.S. EPA to add an NHSM to the above list pursuant to 40 CFR §241.4(b) and/or requesting a non-waste determination from U.S. EPA for a particular NHSM pursuant to 40 CFR §241.4(c).

The environmentalist petitioners challenged the portion of the NHSM rule that defines the above listed materials as non-wastes.  The Court flatly rejected the environmentalist’s challenge to categorically exempt NHSMs, holding that no existing statute or legal precedence currently prevents U.S. EPA from defining solid waste as excluding specific NHSM.  The environmentalist petitioners also challenged the portion of the NHSM rule that contains the legitimacy criteria [40 CFR §§241.3(d)].  The Court also rejected this challenge, holding that it is reasonable to treat NHSMs that are indistinguishable from virgin materials as non-wastes.

The environmentalists were not the only petitioners that received a rejection from the Court.  Industrial stakeholders were left unsatisfied also.  They petitioned the Court to extend the categorical exemption to third-party transfers of NHSMs to be used as fuel and more generally to sewage sludge.  The Court also rejected this challenge, holding that U.S. EPA does have the authority to put the burden on the regulated party to show that a particular NHSM should not be regulated.  The Court’s rejection of the industrial petitioners request suggests that their challenge is already addressed by exercising the option of petitioning U.S. EPA to add an NHSM to the list pursuant to 40 CFR §241.4(b) and/or requesting a non-waste determination from U.S. EPA for a particular NHSM pursuant to 40 CFR §241.4(c) as previously mentioned.

If you have any questions, you can contact me at (610) 933-5246 ext. 119 or rharding@all4inc.com.