U.S. EPA Proposed New Categorical Non-Waste Fuels in Non-Hazardous Secondary Materials Rule

On February 7, 2013, the U.S. Environmental Protection Agency (U.S. EPA) issued final revisions to 40 CFR Part 241 (Solids Wastes Used as Fuels or Ingredients in Combustion Units), which, among other things, added a list of categorical non-waste fuels to the Non-Hazardous Secondary Materials (NHSM) regulation under the Resource Conservation and Recovery Act (RCRA). This list, codified in 40 CFR §241.4(a) (Non-Waste Determinations for Specific Non-Hazardous Secondary Materials When Used as a Fuel), consists of scrap tires, resinated wood, coal refuse, and dewatered pulp and paper sludges. In addition, the February 2013 rulemaking created an opportunity for anyone to submit a rulemaking petition to seek determination for additional NHSM to be listed in 40 CFR §241.4(a) as non-waste fuels. U.S. EPA indicated at the time that, based on preliminary data that had been submitted to U.S. EPA, paper recycling residuals (PRR), construction and demolition (C&D) debris, and creosote treated railroad ties (CTRT) would be good candidates for future proposals.

Since the February 2013 rulemaking, U.S. EPA has received supplemental information from stakeholders regarding the three (3) aforementioned NHSM in support of their candidacy as non-waste fuels. After almost one (1) year of review, proposed amendments to Part 241 (a pre-publication version) were signed by U.S. EPA’s Administrator on March 25, 2014. Specifically, the proposed rule identifies the following as NHSM when used as fuel:

1. C&D wood processed from C&D debris according to best management practices (which are detailed in the proposed rule text);
2. PRR generated from the recycling of recovered paper and paperboard products [which includes old corrugated cardboard (OCC) rejects] and burned on-site by paper recycling mills whose boilers are designed to burn solid fuels; and
3. CTRT that are processed and combusted in units designed to burn biomass and fuel oil. For the purposes of the proposed rule, fuel oil combustion is limited to those units that use fuel oil as part of normal operations and not exclusively for start-up and shut down. It is noted that U.S. EPA is considering an approach that would include a “secondary” categorical non-waste determination for CTRT that are: 1) combusted as part of normal operations in existing units that are designed to burn both CTRT and fuel oil; and, 2) combusted in units at pulp and paper mills where the combustion units are being modified in order to use natural gas instead of fuel oil. This second categorical exemption is under consideration, and if adopted, is in addition to the proposed categorical listing CTRT combustion in units designed to burn biomass and fuel oil. It is not an alternative approach or replacement for that current proposed listing.

ALL4 and one of its clients, M.A. Energy Resources, LLC (MAER), were extremely involved in working to obtain the categorical exemption for CTRT. On behalf of MAER, ALL4 prepared a categorical exemption petition, met with U.S. EPA, and provided multiple submittals to help support the petitioning process.

Facilities burning NHSM listed as categorical non-waste fuels are not required to make additional determinations that the material meets the legitimacy criteria or to provide further information to demonstrate their non-waste status. As long as the facility meets the conditions of the categorical listing (of which there are sometimes several), the NHSM does not have to be evaluated on the general case-by-case basis applicable to other NHSM regulated under the RCRA. For example, tire-derived fuel (TDF) is a categorically exempt non-waste provided it is produced from spent tires collected as part of a managed tire collection program. TDF produced from scrap tires that are not part of a managed reclamation collection program would not be a categorically exempt non-waste NHSM. Sources that combust a categorically exempt non-waste NHSM must document that the NHSM is categorically exempt as part of the record keeping requirements in the major source and area source Boiler Maximum Achievable Control Technology (MACT) regulations at 40 CFR Part 63 Subpart DDDDD and JJJJJJ, respectively.

The pre-publication of the proposed rulemaking has been submitted for publication in the Federal Register. We expect a public comment period to be defined in the publication.