December 18, 2023

EPA’s NHSM Final Rule Denies Petition, Updates Definition

The Part 241 nonhazardous secondary material (NHSM) regulations establish standards and procedures for identifying whether nonhazardous secondary materials are solid wastes when used as fuels or ingredients in combustion units. On October 18, 2023, EPA finalized its response to a petition to amend the NHSM regulations. [88 FR 71761] The petition was composed of three portions:

Change the §241.3(d)(1)(iii) requirement to compare contaminants in the NHSM to the traditional fuel the combustion unit was designed to burn from mandatory to “should consider.” The petitioner argued such a change is necessary due to American Petroleum Institute vs. EPA (U.S. Court of Appeals, D.C. Circuit; Docket No. 09-1038; July 7, 2017), which resulted in a similar language change to the §260.43(b) recycling legitimacy factor. EPA denied this aspect of the petition as the contaminant standards in §241.3(d)(1)(iii) and §260.43(b) were established for different purposes and contexts. [88 FR 71765]
Remove the “designed to burn” verbiage from §241.3(d)(1)(iii) (mentioned above) as it applies to creosote-treated railroad ties. The petitioner argued the design of a combustion unit should not impact the NHSM determination—a railroad tie should not be considered a solid waste when burned in one unit but a non-waste fuel when burned in another. EPA rejected this argument as the purpose of Part 241 is to determine whether an NHSM is a waste or non-waste when combusted, which has CAA consequences. Units that burn wastes would be subject to CAA Section 129, while units that burn non-waste fuels are subject to CAA Section 112. The agency found “it is entirely appropriate that an NHSM would be considered a non-waste fuel when burned in a unit designed to burn a comparable traditional fuel, and a solid waste when burned in a unit that is not designed to burn a comparable traditional fuel.” [88 FR 71767]
Revise the definition of paper recycling residuals (PRR) in §241.2 by removing the condition that PRR containing more than small amounts of non-fiber material are not considered PRR. The petitioner argued this “small amounts” language is too vague, and EPA agreed. The agency modified the definition of PRR to include a performance-based threshold: “Secondary material from paper recycling processes with a heating value below 6,300 Btu/lb on a dry basis… are not” PRR. [88 FR 71771]

This final rule became effective on December 18, 2023. Because CAA permitting regulations refer to the RCRA definition of solid waste when determining whether a combuston unit is a solid waste incinerator or an industrial furnace, the PRR definition revision applies to CAA permitting nationwide and does not depend on state adoption. [88 FR 71772] More information on the petition and submitted comments is available via Docket ID No. EPA-HQ-OLEM-2020-0550.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.