The Environmental Protection Agency issued the Non-Hazardous Secondary Material (NHSM) Rule in December 2012 under the Resource Conservation and Recovery Act. The NHSM Rule defines which materials will be deemed ''solid waste'' when combusted for purposes of triggering incinerator standards under the Clean Air Act. The authors of this article trace the development of the NHSM rule into a more flexible regulation since EPA's initial 2010 rulemaking proposal. EPA has nurtured a trend of leniency by exempting more types of materials and streamlining the petition process, which will result in far fewer materials being classified as solid waste when combusted, the authors say.
EPA's Non-Hazardous Secondary Material Rule: 'A Combination of Flexibilities'
l. Background and Function of Rule
A. Growing Use of 'Secondary' Materials as Fuels
Traditionally, industrial facilities have used fossil fuels such as coal, oil, or natural gas to fire their boilers and furnaces. Over the years, however, facilities have sought to replace some or all of their fossilfuel sources with ''alternative'' fuels from ''secondary'' materials.
These ''secondary'' materials were often discarded as wastes in the past, but now are increasingly desirable as cheap and effective replacements for fossil fuels.
Some of these secondary materials (such as spent industrial solvents) are classified as ''hazardous wastes,'' and EPA has for decades regulated the combustion of such wastes under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq., and the Clean Air Act, 42 U.S.C. §§ 7401 et seq.1
But large volumes of combustible secondary materials are not ''hazardous'' within the definitions under RCRA; these materials are referred to as ''nonhazardous secondary materials'' (NHSM). Common examples of NHSMs that may serve as fuel are agricultural and forest-derived biomass such as green wood, forest thinnings, sawmill materials, and crop residues, scrap tires, waste plastics (such as diaper trimmings), used oil, and coal tar sludge. The types of NHSMs that may be used as a replacement for fossil-fuels is everexpanding as technology finds new ways to obtain fuel value out of materials that would otherwise be discarded as waste.
B. Defining Which NHSMs Are 'Solid Wastes'
In one of her last official acts, EPA Administrator Lisa Jackson signed a new final rule under RCRA on Dec. 20, 2012. This new final rule is known as the ''Non- Hazardous Secondary Material'' or ''NHSM'' rule.2
While a RCRA rule, the function of the NHSM rule is to serve as a jurisdictional ''decider'' under the Clean Air Act. Clean Air Act § 129 provides that certain types of facilities that combust ''solid waste'' as defined by EPA under RCRA must be regulated by emission standards issued by EPA under Clean Air Act § 129.
Under Clean Air Act § 129, EPA has issued emission standards for ''Commercial & Industrial Solid Waste Incinerators''—the so-called CISWI rule. The types of facilities for which EPA has established emission standards under the CISWI rule are boilers and process heaters, industrial furnaces such as cement and aggregate kilns, and incinerators. EPA's CISWI rulemaking has generally run in tandem with the NHSM rulemaking, and the most recent version of the CISWI rule is included in the same rulemaking package as the New NHSM Rule.
C. NHSM Users Usually Want NHSMs 'Out' of Solid Waste Definition
If one of the types of units for which EPA has established CISWI standards combusts a material that the NHSM defines as a ''solid waste,'' the unit will be subject to the Clean Air Act § 129 CISWI rules.3 If such a unit does not combust a material that the NHSM rule defines as a solid waste, the unit will instead be subject to Clean Air Act § 112's ''NESHAP'' standards.
Generally, facility owners and operators have deemed the Clean Air Act § 112 NESHAP regime far preferable to the Clean Air Act § 129 CISWI regime and have sought to avoid Clean Air Act § 129 status. EPA has in fact expressly recognized that standards under the Clean Air Act § 129 regime are often so harsh that many facilities would simply shut down or cease combusting solid waste in order to avoid it.4 Accordingly, the vast majority of industrial parties with facilities using NHSMs have advocated that EPA structure its NHSM rules in a manner that would exempt most commonly-used NHSMs from ''solid waste'' status.
D. Critical But Limited Scope of NHSM Rule
It is important to stress that the only function of the NHSM rule is to determine which materials will be considered solid wastes when combusted for purposes of triggering Clean Air Act § 129 CISWI rules at a facility. The NHSM Rule does not define ''solid waste'' for general purposes of EPA's (and the states') solid waste management programs under RCRA Subtitle D. Nor does the NHSM Rule have any bearing on the RCRA Subtitle C hazardous waste program or the definition of solid waste under that program.
Accordingly, a material exempted from the definition of solid waste through the NHSM rule may still be regulated as a solid waste for other purposes under state or federal regulations. For instance, under the NHSM rule, certain scrap tires will not be solid waste when combusted. This would not affect the ability of states to regulate those scrap tires as solid wastes for purposes of generation, transportation, taxation, management standards, or any other purpose. We stress this because there has been much confusion among states and the regulated community over this point.
E. Lengthy Rulemaking Process
The New NHSM Rule caps a lengthy rulemaking process, which EPA initiated over four years ago with an advance notice of proposed rulemaking. 74 Fed. Reg. 41, Jan. 2, 2009. EPA proposed its first cut at the NHSM rule on June 4, 2010, (75 Fed. Reg. 31,844), and issued the first version of a final NHSM rule on March 21, 2011 (76 Fed. Reg. 15,456). Then EPA published proposed amendments to the March 2011 NHSM rule in the form of a ''reconsideration'' notice on Dec. 23, 2011 (76 Fed. Reg. 80,452). The New NHSM Rule Administrator Jackson signed in December follows up on the proposed reconsideration and adopts many of the revisions as proposed.
II. NHSM Framework Unchanged, but Many More 'Out' Opportunities
A. No Changes in General Framework of NHSM Rule
The general framework of the NHSM rule did not change with the New NHSM Rule. Under this framework, certain types of secondary materials used in certain ways may (or may not) attain status as a non-solid waste. As explained more fully below, there are several basic paths by which materials may attain the non-solid waste (or exempt, or ''out'') status under the rule:
(1) Easy Out – certain materials are directly and unconditionally exempted;
(2) Out With Some Conditions – material that ''remains within the control of the generator'' may be exempted if the material meets several ''legitimacy criteria;''
(3) Out With Extra Conditions –material that does not remain within the control of the generator may be exempted if the material meets the legitimacy criteria and the material undergoes a sufficient degree of ''processing'' before it is combusted;
(4) Out Later With More Administrative Process – material may gain exempt status through a petition process under which a party seeks EPA's determination that the material is not a solid waste when combusted.
B. Trend Toward Liberalization: More NHSMs 'Out' or Much Easier to Get Out
While the general framework has not changed as the NHSM rule has progressed through its various stages, there has been a clear trend towards more ''leniency'' in taking NHSM out of the status of solid waste. As EPA explains, the new rule includes a ''combination of flexibilities.'' 5
With the New NHSM Rule, for instance, several more types of materials are now ''Easy Out'' exempted. For those materials that are not Easy Out, EPA has made it easier for materials to comply with the legitimacy criteria (and therefore get out). Moreover, EPA has ''streamlined'' its petition process—and added a new national petition process—that can pave the way for even more materials to get out.
The bottom line is that compared to the initial 2010 NHSM rulemaking proposal, the New NHSM Rule will result in far fewer materials being classified as ''solid waste'' when combusted—a result that has been sought by the vast majority of industry interests. This is underscored by EPA's estimate (see note 4, supra) that of the over 1.5 million combusting units that could be subject to Clean Air Act § 129 standards, only 106 of them currently would be.
III. Key Provisions of the Rule With Significant Changes Noted
Compared to many EPA regulations, the actual regulatory text of the NHSM rule is quite short, taking up less than five pages in the Federal Register. The rule is codified at 40 C.F.R. pt. 241.
A. Easy Out – No Worries Over Legitimacy Criteria or Processing
There are two types of Easy Out materials: those materials the NHSM rule deems to be ''traditional fuels,'' and those materials the rule lists as ''categorically determined non-waste.'' The important thing here is that if you combust such a material, the material simply is not a solid waste when combusted. You do not have to delve into the messy worlds of ''legitimacy criteria'' and ''processing'' as described below.
(1) Traditional Fuels
The regulatory definition of ''traditional fuels'' in § 241.2 includes both conceptual descriptive clauses and specifically designated materials: Traditional fuels means materials that are produced as fuels and are unused products that have not been discarded and therefore, are not solid wastes, including:
(1) Fuels that have been historically managed as valuable fuel products rather than being managed as waste materials, including fossil fuels (e.g., coal, oil, and natural gas), their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven gas) and cellulosic biomass (virgin wood); and
(2) alternative fuels developed from virgin materials that can now be used as fuel products, including used oil which meets the specifications outlined in 40 C.F.R. pt. 279.11, currently mined coal refuse that previously had not been usable as coal, and clean cellulosic biomass.
These fuels are not secondary materials or solid wastes unless discarded.
Under this definition, if you have a material that is specifically listed (like petroleum coke), you know with certainty you are home free. On the other hand, you may have a material that is not specifically listed, but you believe fits within one of the conceptual descriptive clauses (like ''alternative fuels developed from virgin materials that can now be used as fuel products''). In this situation, you may want to avail yourself of EPA's ''comfort letter'' process to protect yourself in case an EPA enforcement inspector might not share your view of the conceptual clause's meaning.
Since the first version of the NHSM Rule was issued in March 2011, EPA has been issuing guidance in response to requests for interpretation. EPA staff have referred to these types of letters as ''comfort letters.'' EPA's comfort letters can be found on its website at http://www.epa.gov/epawaste/nonhaz/define/ index.htm#guidance. EPA makes clear in the New NHSM Rule that it will ''continue to make its traditional fuel data and legitimacy determinations transparent'' through the ''comfort letter'' website link given above.6
In the New NHSM Rule, EPA did not amend the basic definition of ''traditional fuels'' in § 241.2, but it did expand the definition of ''clean cellulosic biomass'' to include more specific examples.7 As the definition of ''traditional fuels'' specifies ''clean cellulosic biomass'' as a traditional fuel, this new amendment has the effect of providing a more definitive list of materials that will qualify as traditional fuels.
EPA makes clear that even this expanded list of clean cellulosic examples is not intended to be exhaustive.8 So if you have a material that you think is ''clean cellulosic biomass'' and it is not included on the new expanded list, you might still want to avail yourself of the comfort-seeking avenue mentioned immediately above.9
B. Categorically Determined Non-Waste
The New NHSM Rule lists four types of materials that EPA has determined by rule are ''categorically'' deemed non-waste. The March 2011 version of the rule had no such provisions. The four new categorical ''non-waste determinations'' are set forth in the newly added § 241.4(a) as follows:
(1) Scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off–specification tires;
(2) Resinated wood;
(3) Coal refuse that has been recovered from legacy piles and processed in the same manner as currently generated coal refuse; and
(4) Dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials.
Note that materials listed in parts (1) and (4) are subject to the condition that the materials are ''not discarded,'' whereas materials listed in (2) and (3) are not subject to such a condition. The language quoted above is from the regulatory section of the new rulemaking. EPA states in its preamble, however, that if a shipment of resinated wood were disposed of and later recovered for use as a fuel, that wood would not be included within the categorical non-waste listing.10 It is curious and confusing, then, why the regulatory language does not say ''resinated wood that has not been discarded,'' as the juxtaposition of the terms in comparing the four listed materials strongly leads one to the conclusion that the ''discarded'' condition would not apply to resinated wood.
During the comment process leading up to the New NHSM Rule, many parties argued that animal manure should be added to the list of categorically determined non-waste. EPA found insufficient data in the record with respect to manure, however.11
While demurring on manure, EPA indicated that it had found two additional ''good candidates'' to add to the list through a new rulemaking ''in the near future.'' See Part III(E)(2) below.
C. Out With Some Conditions – Material That 'Remains Within the Control of the Generator'
1. 'Within the Control' Unchanged
If you are combusting a material that is not subject to the ''Easy Out'' provisions, you can still get out, but with more process. If fuel material remains within the ''control of the generator,'' then the material may be exempt if it meets three ''legitimacy criteria'' set forth in § 241.3(d).
The basic framework here has not changed since EPA issued the March 2011 NHSM rule. As provided in § 241.2, material remains within the generator's control if it is generated and combusted at the same facility, or even if the material is combusted at a different facility if that facility is controlled by the same generator. Thus, if Apex Chemical generates a secondary material at its Connecticut facility, it may transport that material to its California facility for combustion and the material will still be deemed within the control of the generator. The New NHSM Rule does not make any changes in this regard.
2. 'Legitimacy Criteria' Now Much More Flexible
In prior versions of the NHSM rule, the ''legitimacy criteria'' have caused a great deal of angst for industrial facilities. EPA has relieved a lot of that angst through its New NHSM Rule because for many materials, the legitimacy criteria will now be much easier to meet (and thus secure an ''out'' for the facility).
EPA's rationale for imposing the legitimacy criteria is to ensure that NHSMs used as fuel in combustion units are ''legitimately reused . . . and not discarded under the guise of recycling'' (76 Fed. Reg. 15,463). Under the March 2011 version of the rule, the three legitimacy criteria for fuels require that a NHSM: (1) be managed as a valuable commodity; (2) have meaningful heating value and be used as a fuel in a combustion unit that recovers energy; and (3) contain contaminants at levels comparable in concentration to or lower than those in traditional fuels that the combustion unit is designed to burn. § 241.3(d)(1)(i)-(iii).
In the New NHSM Rule, EPA made no changes to the first two criteria. EPA made highly significant liberalizlowing changes to the third (''comparable contaminant'') criterion, however.
Before explaining the criteria and the recent changes, it is important to note that a facility does not need to seek any form of approval from EPA in making a determination that its material meets the legitimacy criteria. The preamble to the 2011 NHSM rule explains that the process of ascertaining compliance with the criteria is ''self-implementing'' (76 Fed. Reg. 15,481). EPA made no change in this regard in the New NHSM Rule, and once again stressed that the legitimacy criteria are ''self-implementing.''12
There are some very stern (perhaps draconian) recordkeeping provisions in the CISWI rules, however, to which facilities using these ''self-implementing'' provisons must pay heed. These sections of the CISWI rules require a facility using any NHSM that the facility has determined not to be a solid waste to keep records documenting how such a determination is made. 40 C.F.R. §§ 60.2175(v), 60.2740(u).
The CISWI regulations go on to provide that any facility that combusts a NHSM that fails to ''keep and produce such records'' will be a CISWI unit. 40 C.F.R. §§ 60.2265, 60.2875 (see in each section the definition of ''CISWI unit''). Thus, even where a facility may have properly determined a material meets all of the legitimacy criteria and is not a solid waste under the NHSM rule, the CISWI rules would make that facility a CISWI unit simply for the fact that the facility owner lost the records demonstrating that the legitimacy criteria are met. For an employee who loses such records and causes his facility to become a CISWI unit, he or she would have a very bad day indeed.
Criterion (1) – ''valuable commodity,'' § 241.3(d)(1)(i) (no change in the New NHSM Rule)
NHSMs must be managed in the same way as materials that have been purchased ''or obtained at some cost, just as fuels or raw materials are'' (76 Fed. Reg. 15,521). The regulation provides three factors to consider: (a) whether the material is stored for a reasonable time frame; (b) where there is an analogous fuel, the NHSM is managed in a manner consistent with the analogous fuel or otherwise adequately contained to prevent releases to the environment; (c) ''if there is no analogous fuel, the NHSM must be adequately contained so as to prevent releases to the environment.''
§ 241.3(d)(1)(i)(A)-(C).
Criterion (2) – ''meaningful heating value''
§ 241.3(d)(1)(ii) (no change in the New NHSM Rule)
The preamble of the 2011 NHSM rule explains that while there is no bright line test for satisfying the meaningful heating value component, a 5,000 Btu/lb limit should serve as a general guideline (76 Fed. Reg. 15,522). Thus, if a NHSM has a heating value above 5,000 Btu/lb, then presumably the NHSM fulfills this criteria.
Criterion (3) – ''comparable contaminant'' § 241.3(d)(1)(iii) (major changes in the New NHSM Rule)
EPA made several changes to this criterion in the December 2012 rule. These changes are so significant that it is worth quoting in full the text of the third criterion as it originally read and as it now reads:
The March 2011 version:
(iii) The non-hazardous secondary material must contain contaminants at levels comparable in concentration to or lower than those in traditional fuels which the combustion unit is designed to burn. Such comparison is to be based on a direct comparison of the contaminant levels in the non-hazardous secondary material to the traditional fuel itself.
The New NHSM Rule version (with key additions highlighted):
(iii) The non-hazardous secondary material must contain contaminants or groups of contaminants at levels comparable in concentration to or lower than those in traditional fuel(s) which the combustion unit is designed to burn. In determining which traditional fuel( s) a unit is designed to burn, persons may choose a traditional fuel that can be or is burned in the particular type of boiler, whether or not the combustion unit is permitted to burn that traditional fuel. In comparing contaminants between traditional fuel(s) and a nonhazardous secondary material, persons can use data for traditional fuel contaminant levels compiled from national surveys, as well as contaminant level data from the specific traditional fuel being replaced. To account for natural variability in contaminant levels, persons can use the full range of traditional fuel contaminant levels, provided such comparisons also consider variability in non-hazardous secondary material contaminant levels. Such comparisons are to be based on a direct comparison of the contaminant levels in both the non-hazardous secondary material and traditional fuel(s) prior to combustion.
The rather obvious intent behind all these changes is, using EPA's own phrase, to provide an additional ''combination of flexibilities'' when making contaminant comparisons.13 Of particular note is the language allowing the facility to compare its material to any traditional fuel the facility is capable of burning, regardless of whether the facility is legally permitted to burn that fuel. Environmental groups criticized this approach for allowing comparisons to the ''dirtiest'' coal one could find, but EPA refused to change its approach in response to these comments.14
Further beefing up the ''combination of flexibilities,'' the New NHSM Rule revises the definition of ''contaminants'' in § 241.2 to make it more user-friendly. Under the 2011 NHSM rule, ''contaminant'' meant ''any constituent in non-hazardous secondary materials that will result in emissions of the air pollutants'' identified in Clean Air Act §§ 112(b) or 129(a)(4) when such secondary materials are burned as fuel or used as an ingredient, ''including those constituents that could generate products of incomplete combustion.'' The new definition replaces the language ''any constituent that will result in emissions'' with a short list constituents (e.g., chlorine, fluorine, nitrogen, and sulfur) that are now considered contaminants since they are precursor air pollutants. Furthermore, the New NHSM Rule omits the last phrase, ''including those constituents that could generate products of incomplete combustion.'' Ultimately, the amendments remove specific Clean Air Act §§ 112(b) and 129(a)(4) pollutants that ''are not ex- pected to be found in any NHSM or are adequately covered elsewhere in the definition.''15
D. Out With More Conditions – Material That Does Not Remain Within the Control of the Generator
Under the March 2011 version of the rule, NHSM that does not remain within the control of the generator must—to get ''out''—not only meet the legitimacy criteria but also must undergo sufficient ''processing.'' § 241.3(b)(4). This requirement—along with the rule's definition of ''processing'' in § 241.2—is one part of the NHSM rule that industry parties have generally regarded as unnecessarily stringent, and EPA did not revise this in the New NHSM Rule.
The definition provides as follows (emphasis added):
Processing means any operations that transform discarded non-hazardous secondary material into a non-waste fuel or non-waste ingredient product. Processing includes, but is not limited to, operations necessary to: Remove or destroy contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying the material in combination with other operations; chemically improve the as-fired energy content; or improve the ingredient characteristics. Minimal operations that result only in modifying the size of the material by shredding do not constitute processing for purposes of this definition.
Thus, if you have a material you want to combust that does not get an ''easy out'' and was generated outside your control, you have some serious processing to do if you want that material to be exempt. For instance, EPA has consistently maintained that even though whole scrap tires taken from landfills provide bona fide fuel value to a cement kiln and the metal in these tires provides a bona fide ingredient to the cement making process, the tires must be subjected to very expensive metal removal and shredding to be deemed sufficiently processed (76 Fed. Reg. 15,497).
Determinations that processing has been sufficient are—like the legitimacy criteria determinations—''selfimplementing'' as described in Part III(C)(2) above. But once again, facilities must pay careful heed to the draconian recordkeeping requirements discussed above. Even if there could be no debate that your processing has been sufficient under the regulations, the CISWI rules will make your unit a CISWI unit if you cannot find the records documenting that the processing is sufficient.
E. Out Later With More Administrative Process
1. Site-Specific Petitions (§ 241.3(c) )
The March 2011 rule included a case-by-case petition process through which a facility that could not find an ''out'' from the terms of the rule could still attempt to convince the relevant EPA regional administrator that a material should nevertheless be granted non-waste status based on several factors specified in the rule. § 241.3(c). In the New NHSM Rule, EPA retains but ''streamlines'' this process ''to accommodate petitions that apply to multiple combustors.'' New NHSM Rule at 129.
EPA has also added a provision that specifies that if a decision is made to declare a material a non-waste, the decision will be deemed retroactive and become effective as of the date the petition was filed.
2. National Rulemaking Petitions (§ 241.4)
EPA added an entirely new petition process in the New NHSM Rule. This is a national rulemaking process in which a party or parties may petition EPA to make a categorical non-waste determination for a certain material, thus adding it to the ''Easy Out'' category. Recall from above that EPA has already added categorical non-waste determinations for four types of materials; under this national petition process, more could be added. The requirements for such a petition are specified in new § 241.4.
EPA states in the preamble to the New NHSM Rule that it has already identified two new ''good candidates'' for this list: paper recycling residuals and construction and demolition (C&D) wood processed pursuant to best practices. EPA says it expects to issue a proposed rulemaking to add these two candidates to the list ''in the near future.''16
IV. Conclusion
Assuming most facilities for which EPA has established CISWI standards under Clean Air Act § 129 will want to avoid CISWI status, the New NHSM Rule provides lots of opportunities for facilities to accomplish this. Interested parties will need to pay close attention to the terms of the rule to assure that the material they want ''out'' actually is ''out''—and possibly seek ''comfort'' where uncertainties remain.
Of course—like almost all EPA rules—we can expect judicial review challenges in the U.S. Court of Appeals for the District of Columbia Circuit.17 While industrial parties secured many changes to the NHSM rule that they had sought, national environmental groups strongl
Footnotes
1 Hazardous waste combustion is regulated under RCRA regulations codified at 40 C.F.R. pt. 266, subpart H and under Clean Air Act regulations codified at 40 C.F.R. pt. 63, subpart EEE.
2 EPA staffers are predicting the rule will be published in the Federal Register in late January or early February. The signed version of the rule now appears at http://www.epa.gov/ airquality/combustion/docs/20121221_ciswi_recon_fin.pdf. We will refer to this document as the ''New NHSM Rule'' and our citations throughout will be to the page numbers in this document, e.g., New NHSM Rule at 329. See also 246 DEN A-1, 12/26/12.
3 In its most current form, the CISWI rule does not include standards for all types of facilities that may combust NHSMs. For instance, EPA had previously proposed to set CISWI standards for ''burnoff ovens'' and other types of facilities such as drum reclamation units. EPA has decided that for now, however, that it does not have sufficient data to establish standards for such types of units. Accordingly, those types of units—and any other types of units that are not specifically subject to standards under the current CISWI rule—would not trigger Clean Air Act § 129 jurisdiction by burning materials
4 See 76 Fed. Reg. 15,704, 15,742 (March 21, 2011). In issuing its most recent CISWI rules, EPA notes that there are more than 1.5 million boilers in the United States, yet EPA is assuming that there will be only 106 CISWI units. FACT SHEET: EPA's Air Rules for Major and Area Source Boilers and Commercial and Industrial Solid Waste Incinerators, found at http://www.epa.gov/airquality/combustion/docs/20121221_ adjustments_recon_fs.pdf.
5 New NHSM Rule at 168.
6 New NHSM Rule at 172. Or you might find other acceptable pathways out. For instance, you may have ''generatorcontrolled'' material and find that meeting the new liberalized ''legitimacy criteria'' will be simple for you. (See part III(C) be- In this situation, you may not want to bother with a ''traditional fuel'' comfort letter.
7 New NHSM Rule at 527-528.
8 New NHSM Rule at 120.
9 We should note that the NHSM rule contains references to secondary ''ingredients'' as well as fuels. In this article we are focusing on the provisions for fuels. This is because the only possible impact of the ingredients provisions of which we are aware related to Portland cement kilns. The Portland cement industry had pointed out in its rulemaking comments, however, that ingredients are not ''combusted'' (rather, like salt in a boiling soup, ingredients become incorporated into a product). Yet a material must be ''combusted'' to trigger Clean Air Act § 129 jurisdiction. EPA's New NHSM Rule in essence confirms the correctness of the cement industry's position. New NHSM Rule at 73-74. The references to ingredients remain in the rule in a few places, but they now appear to have virtually no practical significance to implementation of the rule.
10 New NHSM Rule at 237.
11 New NHSM Rule at 303.
12 New NHSM Rule at 246-248.
13 New NHSM Rule at 163,168.
14 New NHSM Rule at 178-179.
15 New NHSM Rule at 121.
16 New NHSM Rule at 310.
17 Many industrial and environmental group petitioners filed judicial review petitions seeking review of the March 21, 2011, final NHSM rule, and those cases are consolidated under the lead case name Waste Management, Inc. v. EPA, No. 11- 1148. These cases have been held in abeyance pending issuance of the New NHSM Rule. New petitions for review on the New NHSM Rule are virtually certain to be filed within 90 days after the New NHSM Rule appears in the Federal Register, and those cases will most likely be consolidated with the currently pending Waste Management consolidated cases.
Previously published from the Daily Environment Report
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
