March 15, 2022

EPA Plans to Deny Petition to Amend NHSM Regs

EPA proposes to deny a rulemaking petition requesting amendments to the 40 CFR Part 241 nonhazardous secondary materials (NHSM) regulations [87 FR 4536].

The NHSM regulations were initially promulgated in 2011 and establish standards and procedures for identifying whether nonhazardous secondary materials are solid wastes when they are used as fuels or ingredients in combustion units. Basically, Part 241 does two things:

• Define “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.
• Provide 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.

The petition requested the following amendments:

1. Change the legitimacy criterion for comparison of contaminants in the NHSM to the traditional fuel the unit is designed to burn from mandatory to “should consider.”
2. Remove the associated designed to burn and other limitations for creosote-treated railroad ties.
3. Revise the definition of paper recycling residuals (PRR) to remove the limit on non-fiber materials that can be burned as non-waste fuel.

EPA is proposing to deny the requested amendments. However, the agency plans to change the definition of PRR to set a numerical limit on the amount of non-fiber materials that may be included for the residuals to be considered non-waste fuel. Comments may be submitted until March 29, 2022, under Docket No. EPA-HW-OLEM-2020-0550.

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