December 12, 2014

EPA Guidance on What Constitutes a Non-Waste Fuel

In a March 21, 2011, final rule, EPA clarified when nonhazardous materials used as fuels or ingredients in combustion units are solid waste under RCRA. [76 FR 15456] That rule, commonly referred to as the nonhazardous secondary materials (NHSMs) rule, was incorporated into a new Part 241 to the RCRA solid waste regulations. Basically, Part 241 does two things:

  1. It defines “traditional fuels” that are not solid wastes when combusted. This definition includes historically used commercial fuels, as well as alternative fuels such as on-spec used oil.
  2. It provides legitimacy and contaminant criteria that may be used to determine whether NHSMs that are not included in the “traditional fuels” definition are or are not solid waste when combusted.

This solid waste vs. non-waste fuel designation is important because any unit combusting a solid waste must be regulated under the CAA as a commercial and industrial solid waste incineration unit, regardless of whether the material is being burned for energy recovery or destruction. Conversely, if a NHSM is not a solid waste under RCRA (i.e., it is a non-waste fuel), then any unit combusting that material will be subject to other CAA standards, such as the boiler MACT rules.

In October 2014, EPA released guidance on what constitutes a non-waste fuel when combusted. [RO 14847] This document joins previous guidance issued by the agency in this area: RO 14821, 14822, 14824, 14828, and 14838. RO 14847 concludes that activated coke fines burned in a coal-fired utility boiler remain within control of the generator and meet legitimacy criteria in §241.3(d)(1); thus, they are a non-waste fuel when burned in the boiler per §241.3(b)(1).

Why are activated coke fines being burned in a coal-fired utility boiler? Because, when operational, the power plant will employ an air pollution control (APC) technology that uses activated coke pellets to control SOx, NOx, mercury, and particulate matter emissions. Activated coke fines produced during operation of the APC system will be conveyed, in a closed-loop manner, to the coal silos where they will be mixed with the coal for combustion in the boiler.

In order for a NHSM to be considered a non-waste fuel, §241.3(b)(1) requires compliance with two criteria:

  1. The material must remain within the control of the generator—Since the activated coke fines remain within an enclosed structure and are recycled to the boiler as described above, EPA found that the material is maintained within the control of the generator.
  2. The material must meet the legitimacy criteria—Legitimacy criteria specified in paragraph §241.3(d)(1) include: 1) the material must be managed as a valuable commodity, 2) the material must have a meaningful heating value and be used as a fuel in a combustion unit, and 3) the material must contain contaminants at levels comparable to or less than those in the coal that the combustion unit is designed to burn. The agency determined that the activated coke fines, managed as discussed, meet these criteria.


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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.