September 14, 2020

Certain Paper “Waste” Is a Non-Waste Fuel

In RO 14935, EPA designated a nonhazardous secondary material (NHSM) as a non-waste fuel under 40 CFR Part 241. The July 10, 2020 document states waste paper generated at three Massachusetts paper facilities can be managed under the §241.3(b)(1) provisions, provided the necessary specifications are maintained. What are these requirements, and what are the benefits of such a determination?

Non-waste fuels under §241.3(b)(1)

There are four aspects to a §241.3(b)(1) determination, and three of those require compliance with legitimacy criteria in §241.3(d)(1). First, the NHSM must be managed as a valuable commodity. Storage of the material should not exceed reasonable time frames, and it should be contained to prevent a release into the environment. If there is an analogous fuel, then the material should be managed in a similar manner. [§241.3(d)(1)(i)]

Second, the NHSM must have a meaningful heating value and be used as a fuel to recover energy. In the preamble to the 2011 NHSM final rule, EPA stated the NHSM should have a heating value of at least 5,000 Btu/lb. [76 FR 15482, 15541] An average heating value above this threshold satisfies the criteria, even if the value occasionally drops below 5,000 Btu/lb. [§241.3(d)(1)(ii)]

Third, the NHSM must contain contaminant levels comparable in concentration to, or lower than, those in the traditional fuels the combustion unit is designed to burn. The regulations do not specify a certain threshold for “comparable.” Instead, the regulations allow personnel to use data from national surveys to make this comparison. Traditional fuels not permitted to be burned in the designated combustion unit can also be considered so long as these traditional fuels could be burned in that unit. [§241.3(d)(1)(iii)]

The final aspect is for the NHSM to remain within the control of the generator as defined in §241.2. Thus, NHSM generated at one facility and burned at a different facility not under the control of the same person would not be able to receive a §241.3(b)(1) non-waste fuel determination.

Benefits of a non-waste fuel determination

Understanding a solid waste versus non-waste fuel designation is essential, because any unit combusting a solid waste must be regulated under the CAA as a commercial and industrial solid waste incinerator. 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.

Per the §241.3(b)(1) criteria, a NHSM is not considered a solid waste under the federal RCRA regulations when used as a fuel in a combustion unit, but it could still be regulated as a solid waste under a RCRA-authorized state program. RO 14935 states:

“[A] non-waste determination under 40 CFR Part 241 does not affect a state’s authority to regulate a nonhazardous secondary material as a solid waste. Nonhazardous secondary materials may be regulated simultaneously as a solid waste by the state, as well as a non-waste fuel under 40 CFR Part 241 for the purposes of determining the applicable emissions standards under the Clean Air Act for the combustion unit in which it is used.”


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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.