United States: Is Your Combustion Unit A Boiler Or An Incinerator? - EPA Finalizes NHSM Rule

On Dec. 20, 2012, the EPA Administrator signed a final rule that determines what Clean Air Act standard applies to units that combust secondary materials (as opposed to traditional fuels or virgin ingredients): Identification of Non-Hazardous Secondary Materials That Are Solid Waste (NHSM Rule). This NHSM Rule is important because if EPA determines that a fuel is a waste, then the combustion unit must meet the Final Emissions Standards for Commercial/Industrial Solid Waste Incinerators (CISWI Rule) (also signed December 20)—which are generally more stringent than standards applicable to boilers.

If EPA determines that a fuel is not a waste, then the combustion unit would be regulated under the applicable MACT standard, three of which also were revised on December 20: Final Emission Standards for Area Source Industrial, Commercial, and Institutional Boilers; Final Emission Standards for Major Source Industrial, Commercial, and Institutional Boilers and Process Heaters; and the National Emission Standards for Hazardous Air Pollutants for the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants.

Since 2000, EPA has been attempting (unsuccessfully) to distinguish between wastes and non-waste fuels to place combustion units in the appropriate regulatory category. In the 2000 CISWI Rule and the 2005 CISWI Definitions Rule, EPA said that units that combust waste for energy recovery are not CISWI units. EPA used this determination to identify the best-performing incinerators when developing the 2000 CISWI Rule and the best performing boilers when developing the 2004 Boiler MACT Rule. In 2007, the D.C. Circuit rejected that interpretation and vacated both the 2005 CISWI Definitions Rule and the 2004 Boiler MACT Rule. Natural Resources Defense Council v. EPA, 489 F. 3d 1250, 1257–61 (D.C. Cir. 2007). In 2011, the D.C. Circuit also vacated part of the Portland Cement MACT, because EPA had placed some cement kilns in the wrong regulatory category. Portland Cement Ass'n v. EPA, 665 F.3d 177, 184-85 (D.C. Cir. 2011).

EPA tried to resolve this issue with the first NHSM Rule, promulgated in March 2011. "Identification of Non-Hazardous Secondary Materials That Are Solid Waste," 76 Fed. Reg. 15456 (Mar. 21, 2011). However, EPA again failed to establish clear and legally defensible criteria for distinguishing between wastes and non-wastes, and agreed to reopen this rule. EPA proposed changes to the NHSM Rule in December 2011 and finalized these changes on December 20, 2012.

In the final NHSM Rule, EPA maintained its March 2011 regulatory structure. That is, a secondary material that is combusted is a waste unless the operator can demonstrate that the material meets certain criteria, which are intended to show that the combustion is a legitimate use of the secondary material as a fuel or an ingredient and not waste disposal.

For materials combusted by the generator as fuels, these "legitimacy" criteria allow a self-evaluation of whether the materials are managed as a valuable commodity, have sufficient heating value, and contain Clean Air Act pollutants at levels comparable to or lower than a traditional fuel that the combustion unit is capable of burning.

For secondary materials that are combusted by third-parties (not the generator) as fuels the materials must meet the above-listed "legitimacy criteria" and in addition must either be processed into a non-waste by removing contaminants or EPA must grant a petition determining these materials are non-wastes.

For materials combusted as an ingredient, in lieu of evaluating heating values, the legitimacy criteria consider the contribution made by the secondary material to a production or manufacturing process that results in a valuable product or intermediate, and in lieu of evaluating inputs, the contaminant comparison is made by comparing the product produced using secondary materials to products made with virgin materials. Materials meeting the ingredient legitimacy criteria can be combusted by the generator or by third-parties following a self-evaluation of the legitimacy criteria, without the need for processing or a petition.

In the December 2012 NHSM Rule, EPA established an additional mechanism to identify non-waste fuels: a categorical determination by rule. Under this categorical determination, EPA may consider any relevant factor and can list a material as a non-waste fuel even if it does not meet one or more of the legitimacy criteria. A person can combust the listed fuels without making an individual determination that the combustion is legitimate. This mechanism does not apply to secondary materials used as ingredients.

EPA has already determined in the December 2012 NHSM Rule that each of the following four categories of materials are not wastes when combusted: (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.

The preamble to the December 2012 NHSM Rule also identified construction and demolition wood, paper recycling residuals, and, with more data, railroad ties, as good candidates for future categorical listing as non-waste fuels, and promises to begin a rulemaking to list these materials in the near future. EPA also may include treated wood in its rulemaking, as well as any other material for which EPA receives sufficient information to make the non-waste determination.

EPA did not agree to categorically exclude off-specification used oil as a non-waste fuel, but agreed that such oil could be a non-waste fuel if it is combusted in a unit that can also combust coal, allowing a comparison between the level of Clean Air Act pollutants in the used oil to the levels in coal when determining if the combustion meets the legitimacy criteria.

In the revisions to the CISWI Rule, EPA also took steps to clarify that gaseous material is not a waste when it is combusted, unless it is contained in a container when that combustion takes place. This clarification was important for the continued use of landfill gas, fuels developed from the gasification of wastes and other secondary materials, and even the normal practice of combusting gases in air pollution control equipment.

Existing combustion units have three (3) years to come into compliance with the Boiler MACT standard (with the possibility of a 4th year if granted by the state permitting authority) and up to five (5) years to come into compliance with the CISWI standards. But, due to long lead times for planning, permitting and construction, it is important to understand now whether a unit combusts a fuel or a waste. If an operator inadvertently combusts a waste after the compliance deadline for the CISWI Rule, the unit would immediately become a CISWI unit and be regulated as such for six months. For many units this would effectively mean the unit must shut down for six months. A unit also becomes a CISWI unit if it combusts a secondary material and fails to keep a record demonstrating that the material is non-waste. So, for operators of combustion units that burn secondary materials, or fuel derived from secondary materials, the consequences of these rules are great—and units and their fuels need to be evaluated against these regulatory standards sooner than later.

EPA has provided many pages of preamble language that offer further guidance on making a determination whether a material is a fuel or a waste, but the criteria and process are less than clear and transparent. At Barnes & Thornburg, we have been helping clients navigate these issues and present non-waste fuel arguments to EPA.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions