Recent Non-Hazardous Secondary Material (NHSM) Determinations

There has been a lull in U.S. EPA’s issuance of the “comfort” letters requested by the regulated community for non-hazardous secondary materials (NHSM) legitimacy determinations.  However, the lull was recently broken, first by the North Carolina Department of Environment and Natural Resources (NCDENR) in early July and then most recently by U.S. EPA in late August.  There are a couple of interesting items involving each of these two notices.

With respect to the NCDENR comfort letter, there is a little back story that is of interest, and those facilities that currently use landfill gases and other “uncontained gases” may want to follow this narrative closely.  In early spring of this year, NCDENR requested that U.S. EPA confirm that a company proposing to install a generator to burn landfill gas purchased from a landfill would not be considered a new source under the Commercial Industrial Solid Waste Incinerator (CISWI) rules.  NCDENR felt obligated to make this request because U.S. EPA had distanced itself from their long established determination that “uncontained gases” (i.e., gases that travel through a pipe) are not solid wastes and are not subject to the CISWI rule.  See U.S. EPA’s April 2011 correspondence to the American Forest and Paper Association (AF&PA) and the proposed December 2011 NHSM revisions for examples of U.S. EPA’s last public support of its long established position that “uncontained gases” are not solid wastes.  Operating within the vacuum generated by U.S. EPA, NCDENR and the regulated source went through the NHSM legitimacy determination process to confirm that the landfill gas is not a solid waste.  Since there are many industrial sectors that combust “uncontained gases,” such as the pulp and paper and refining industries, the NCDENR action has significant meaning.  It should be noted that NCDENR was able to make the NHSM determination because the state is delegated to implement the CISWI rule.   Also, although NCDENR used the legitimacy criteria process to determine that the landfill gases are a NHSM, this determination is in lieu of the preferred finding that uncontained gases (i.e., pipeline gases) are not wastes, a situation akin to the proverbial “kissing your sister/brother.”

In an unrelated action, a comfort letter was issued by U.S. EPA in August regarding an alternate fuel that is comprised of comingled municipal solid waste, commercial waste, and institutional waste.  What is important to note in this letter is the timing and effort that is associated with preparing the comfort letters and the actual legitimacy criteria demonstration.  The timing for U.S. EPA comment and “approval” was approximately six months and required multiple information submittals (at least five information exchanges) and several meetings.  There was also legal support throughout the process.  In addition to the effort involving the management of the legitimacy criteria demonstration, there would have also been engineering support and analytical costs associated with developing the supporting documentation.  ALL4 estimates that a legitimacy criteria demonstration could have easily cost $10,000 to $15,000 depending on how complicated the various fuel components made the process.  The addition of analytical lab expenses could easily add $500 per sample to the aforementioned costs.  The time and effort to prepare, support, and negotiate a legitimacy criteria demonstration should not be underestimated.

There are several resources that you can contact here at ALL4 to help you with aspects of the NHSM rule or aspects of the Boiler MACT and CISWI rules; please contact  Ron Harding, Lindsey Kroos, or Dan Holland for more guidance.