Fact Sheet: Notice of Proposed Rule Making (NPRM) Identification of Non-Hazardous Secondary Materials That Are Solid Wastes

EPA is proposing a series of rules that will provide substantial reductions in the release of hazardous air pollutants into the atmosphere, and provide substantial benefits to the many communities where these units are located.

The four proposed rules were developed together because of the interrelationship among them.

Three of the rules propose to establish emission standards under the Clean Air Act (CAA), while the other proposal was developed under the Resource Conservation and Recovery Act (RCRA).

The RCRA rule clarifies which non-hazardous secondary materials are, or are not, solid wastes when burned in combustion units, such that:
- Non-hazardous secondary materials considered solid wastes under RCRA would be subject to the section 129 CAA requirements
- Non-hazardous secondary materials not considered solid wastes under RCRA would be subject to the section 112 CAA requirements

The proposed rule would significantly narrow the current universe of non-hazardous secondary materials that would be identified as non-wastes under RCRA.

In general, non-hazardous secondary materials burned in combustion units are identified as solid wastes unless:
- When used as a fuel that remains within the control of the generator (whether at the site of generation or another site the generator has control over) and it meets the legitimacy criteria
- When used as an ingredient in a manufacturing process (whether by the generator or a third party) that meets the legitimacy criteria
- When the non-hazardous secondary material has been sufficiently processed to produce a fuel or ingredient that meets the legitimacy criteria
- When, through a case-by-case petition process, it has been determined that material handled outside the control of the generator has not been discarded and is indistinguishable in all relevant aspects from a fuel product

The proposal also requests comment on several other approaches which may serve to further narrow the universe of “non-waste” materials for a final rule.
- The “Alternative Approach” attempts to define solid waste as broadly as possible, while still being legally defensible.
- An approach that would identify all non-hazardous secondary materials burned in combustion units to be solid wastes.

Congress added section 129 to the CAA in 1990 specifically to address emissions from solid waste combustion.

In determining which emission standards combustion units that burn non-hazardous secondary materials are subject to, section 129 of the CAA specifically states, that the term “solid waste” shall have the meaning “established by the Administrator pursuant to RCRA.”

The Commercial and Industrial Solid Waste Incineration (CISWI) definitions rule (“Definitions Rule”), which was issued in September 2005 pursuant to CAA section 129 requirements, excluded units used to recover energy for a useful purpose from the definition of solid waste incinerators, and instead these units were subject to the applicable CAA section 112 standards.

The Definitions Rule was subject to judicial challenge and vacated by the US Court of Appeals for the District of Columbia. The court concluded that EPA erred by excluding units that combust solid waste for energy recovery from being subject to the CISWI standards. The court determined that the CAA requires any unit that combusts “any solid waste material at all,” regardless of whether the material is being burned as fuel, to be regulated under CAA section 129 as a “solid waste incineration unit.” The court also vacated and remanded the Boilers Rule, as the vacatur of the CISWI Definitions Rule would require revision of the Boilers Rule.

In response to the court’s decision, EPA is proposing criteria which identify those non-hazardous secondary materials used as fuels or ingredients in combustion units and whether they are or are not considered solid waste.

The CAA proposed rules are: