March 13, 2013

EPA Amends Nonhazardous Secondary Materials Rule

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:

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.
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.

On February 7, 2013 [78 FR 9112], EPA amended the Part 241 regulations for NHSMs that are burned as fuels. Highlights of the changes include:

Revisions to four definitions: “clean cellulosic biomass,” “contaminants,” “established tire collection program,” and “resinated wood.”
Amendments to the contaminant criterion for NHSMs used as fuels. The changes noted below will clarify how contaminant comparisons between NHSMs and traditional fuels may be made:

Groups of contaminants (in addition to individual contaminants) may be compared where technically reasonable;
The term “designed to burn” is clarified to mean can burn or does burn and not necessarily permitted to burn;
Traditional fuel data from national surveys and other sources (and not just data provided by a facility’s current fuel supplier) may be used; and
Ranges of traditional fuel contaminant levels may be used when making comparisons, provided the variability of NHSM contaminant levels is considered.

Addition of a new section, §241.4, which lists four specific NHSMs that are not solid waste when used as a fuel in a combustion unit:

Scrap tires (that are managed under the oversight of a tire collection program) and resinated wood, which were previously determined to not be solid waste in the March 21, 2011 final rule;
Coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse; and
Pulp and paper sludges that have been dewatered and are burned onsite at pulp and paper mills.

Creation of a petition process giving entities an opportunity to add a NHSM to the four listed above.

During the comment period for these revisions, EPA received a number of requests to add other NHSMs to the list of nonwastes when used as a fuel. While these unsolicited comments were not addressed in the February 7, 2013 final rule, the agency recognized three NHSMs that, when burned as fuel, appear to be good candidates for a future nonwaste listing:

Paper recycling residues,
Processed construction and demolition wood, and
Creosote-treated railroad ties.

The amendments to Part 241 are effective April 8, 2013.

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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.