U.S. EPA Issues Final Decision Related to Burning Paper Recycling Residuals and Treated Wood

The Non-Hazardous Secondary Materials (NHSM) Rule at 40 CFR Part 241 is used by facilities to determine whether non-traditional fuels they burn in their combustion units are solid waste. The U.S. Environmental Protection Agency (EPA) received a petition in 2018 requesting revisions to the NHSM Rule related to how to assess materials as non-wastes and also to refine how  paper recycling residuals (PRR) and creosote treated railroad ties (CTRT) are evaluated as non-wastes.  Specifically, the petition requested the following:

• Change the third legitimacy criterion at 40 CFR Part 241.3(d)(1) to allow for an optional instead of mandatory comparison of contaminants in the NHSM against the contaminants in a traditional fuel;
• Remove the designed to burn and other associated limitations on burning CTRT; and
• Revise the definition of PRR.

U.S. EPA published its final response to that petition on October 18, 2023. The requests in the petition were denied, but the definition of PRR was revised.

What changed and did not change in the NSHM Rule?

Petitioners were hoping to align the legitimacy determination process for NHSM to match the process for hazardous secondary materials.  This alignment would have made optional the required mandatory contaminant comparison in the NHSM regulations.  The ability to make the contaminant comparison optional would have increased the flexibility for qualifying a secondary material as a non-waste.  Ultimately, U.S. EPA kept the contaminant comparison mandatory because the non-hazardous and hazardous programs are distinct programs and regulatory criteria for one program do not translate to the other.

Although U.S. EPA denied the petition to make the contaminant comparison optional for all secondary material and to remove the “designed to burn” test for CTRT, it did revise the definition of PRR (although not as the petition requested). In January 2022, U.S. EPA had proposed to revise the PRR definition to specify a 2% limit on non-fiber materials. However, based on comments from industry, that definition was not finalized. The final PRR definition is:

Paper recycling residuals means the secondary material generated from the recycling of paper, paperboard and corrugated containers composed primarily of fibers that are too small or weak to be used to make new paper and paperboard products. Secondary material from paper recycling processes with a heating value below 6,300 Btu/lb on a dry basis due to excessive non- fiber material content (including polystyrene foam, polyethylene film, other plastics, waxes, adhesives, dyes and inks, clays, starches and other coating and filler material) are not paper recycling residuals for the purposes of this definition.

U.S. EPA finalized this definition, which includes a minimum heating value that PRR must meet in order to be considered a non-waste fuel, to address concerns that facilities were burning PRR with low heating value (e.g., from non-fiber materials) to discard the PRR, not to recover energy.

Does this decision affect me?

If you are burning or would like to burn PRR, you will need to review the revised definition and determine if the PRR you are burning or will burn meet the definition. For example, you will need to determine the heating value of the PRR. Note that a condition to evaluate the characteristics of your PRR could be added to your permit as a result of this definitional change. If you burn PRR that do not meet this definition, you could be burning solid waste.

What about design to burn criteria and CTRT?

With respect to CTRT, a categorical non-waste exemption exists for boilers meeting certain characteristics.  Petitioners had hoped to expand the capability of facilities to combust CTRT for energy recovery by relaxing how “designed to burn” was incorporated in the non-waste determination.  If you are burning CTRT under the categorical exemption or would like to burn CTRT under a self-implementing non-waste determination, the design to burn criterion must be met.  In the non-waste determination, designed to burn, as it applies to a traditional fuel, means a boiler  could/can burn the traditional fuel, regardless of whether it has burned, or is permitted to burn, the fuel. For example, if your boiler is physically capable of burning both biomass and fuel oil (i.e., the fuel handling equipment was or is currently installed), you can compare the contaminants in CTRT to both of those fuels, regardless of whether your permit includes both fuels.  Petitioners had hoped to make the design to burn assessment a hypothetical assessment rather than the deterministic approach used by U.S. EPA.

Not sure what to do?

If you need help evaluating what materials you are burning or would like to burn are NHSM fuels versus solid waste, reach out to me or your ALL4 project manager for help. We will continue to monitor for further changes to this and other combustion-related regulations.