Non-Hazardous Secondary Material Rulemakings

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Final Rule: Additions to List of Section 241.4 Categorical Non-Waste Fuels - January 19, 2016

NHSM Home Page

Rulemaking Synopsis Page Highlights

Related Air Regulations

The NHSM rules have been issued in conjunction with the Clean Air Act rules.

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The Resource Conservation and Recovery Act (RCRA) non-hazardous secondary material (NHSM) rulemakings identify which non-hazardous secondary materials are, or are not, solid wastes when burned in combustion units. The regulations are codified at 40 CFR part 241. The regulatory actions are described below.

March 25, 2014 Proposed Rule (Amendments)
February 7, 2013 - Final Rule (Revisions)
December 23, 2011 - Proposed Revisions
March 21, 2011 - Final Rule
June 4, 2010 - Proposed Rule
January 2, 2009 - Advanced Notice of Proposed Rulemaking

March 25, 2014 - Proposed Rule (Amendments)

Proposed Rule

In the February 7, 2013 rule, EPA listed particular non-hazardous secondary materials as “categorical non-waste fuels” and procedures for adding additional materials to the list. Facilities burning these non-hazardous secondary materials do not need to evaluate them under the general case-by-case standards and procedures that would otherwise apply to non-hazardous secondary materials burned in combustion units.

This action proposes to add three materials to the list: (1) Construction and demolition (C&D) wood processed from C&D debris according to best management practices, (2) Certain paper recycling residuals, and (3) Creosote treated railroad ties that are processed and combusted in units designed to burn both biomass and fuel oil.

All comments on proposed rule should be submitted by June 13, 2014 and should be identified by Docket ID No. EPA-HQ-RCRA-2013-0110.

Frequent Questions

February 7, 2013 - Final Rule (Revisions)

The Commercial and Industrial Solid Waste Incineration (CISWI) Units: Reconsideration and Proposed Amendments; Non-Hazardous Secondary Materials that are a Solid Waste: Final Rule (PDF) (103 pp, 1.28 mb)

The NHSM part of the preamble begins on page 9135 of the Federal Register notice for the consolidated rulemaking.

This rule amends 40 CFR part 241, which was originally codified by the 2011 NHSM rule. The Agency re-examined that March 2011 NHSM rule and has finalized amendments and clarifications on certain issues on which EPA received new information, as well as specific targeted revisions that are appropriate in order to allow implementation of the rule as EPA originally intended.

These amendments clarify and provide direction to facilities applying the legitimacy criteria and emphasize the flexibilities already embodied in the rule. The final revisions also list several NHSMs as categorical non-wastes when used as a fuel and provides a process for the regulated community to request an EPA rulemaking that would identify additional materials as categorical non-waste fuels.

These changes include the following revisions:

Revised Definitions
The revisions include the following revised definitions:

"Clean cellulosic biomass,"
"contaminants,"
"established tire collection programs," and
"resinated wood."

Contaminant Legitimacy Criterion for NHSM Used as Fuels
EPA issued a revised contaminant legitimacy criterion for NHSMs used as fuels to provide additional details on how contaminant comparisons between NHSMs and traditional fuels may be made. Clarifications include:

The ability to compare groups of contaminants where technically reasonable;
the clarification that "designed to burn" means can burn or does burn, and not necessarily permitted to burn;
the ability to use traditional fuel data from national surveys and other sources beyond a facility’s current fuel supplier; and
the ability to use ranges of traditional fuel contaminant levels when making contaminant comparisons, provided the variability of NHSM contaminant levels is also considered.

Categorical Non-Waste Determinations for Specific NHSM Used as Fuels
EPA codified determinations that certain NHSMs are non-wastes when used as fuels. Based on all available information, the EPA has determined that the following NHSMs are categorically not a solid waste when burned as a fuel in combustion units:

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,
resinated wood,
coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse, and
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.

Rulemaking Petition Process for Other Categorical Non-Waste Determinations
EPA finalized a rulemaking petition process that provides persons with an opportunity to submit a rulemaking petition to the Administrator, seeking a categorical determination for additional NHSMs to be listed in §241.4(a) as non-waste fuels. The process for submitting a rulemaking petition to the Agency, as well as the factors a successful application must include, is listed in §241.4(b).
Other Materials for Which Additional Comment Was Not Requested
In the preamble text, EPA stated that it received information regarding other NHSMs that may be good candidates for non-waste determinations in a future rulemaking. These include: (1) paper recycling residuals (including old corrugated cardboard (OCC) rejects); and (2) construction and demolition (C&D) wood processed pursuant to best practices and produced and managed under the oversight of a comprehensive collection system or contractual arrangement. In addition, EPA noted that it had received information related to creosote-treated railroad ties and indicated areas where new information from the regulated community would be needed before the agency could determine whether to propose non-waste determination for this material.

For additional information on the revisions, refer to the factsheet and the rule linked below.

The NHSM revisions are finalized within a joint rulemaking under the Clean Air Act for commercial and industrial solid waste incinerators (CISWI). For the proposed NHSM revisions in the rulemaking package, refer to Section III. "NHSM Final Revisions". The targeted changes to the NHSM regulations are listed at the end of the document under "PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION UNITS".

Refer to the bottom of the page for directions to access information related to this final rule in the docket in Regulations.gov.

Information developed for the February 7, 2013 Final Rule:

Fact Sheet on NHSM | PDF (4pp, 81k) | Response to Comments Document

December 23, 2011 - Proposed Revisions

Title: The Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Proposed Amendments; Non-Hazardous Secondary Materials that are a Solid Waste

Proposed Revisions to the Identification of Non-Hazardous Materials That Are Solid Waste Final Rule and Proposed Emissions Standards for Commercial and Industrial Solid Waste Incinerators.

The Agency has re-examined the March 21, 2011 Non-Hazardous Secondary Material (NHSM) final rule and is proposing amendments and clarifications on certain issues on which EPA has received new information, as well as specific targeted revisions that are appropriate in order to allow implementation of the rule as EPA originally intended.

The proposed amendments and clarifications are being jointly proposed with the Commercial and Industrial Solid Waste Incinerators (CISWI) proposed rule under the Clean Air Act.

For the proposed NHSM revisions in the rulemaking package, refer to Section II "NHSM Proposed Revisions".

The targeted changes to the regulations are listed at the end of the document under "PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION UNITS".

Refer to the bottom of the page for direction in order to access information related to this proposal in the docket in Regulations.gov

Proposed Rule - Federal Register Notice | PDF (79pp, 460K)

Information developed for the proposed revisions to the Final Rules (NHSM and CISWI):
Fact Sheet on NHSM | PDF (2 pp, 57.4K) | Fact Sheet on CISWI (PDF) (4 pp, 27.31K)

March 21, 2011 - Final Rule

Title: Identification of Non-Hazardous Secondary Materials That Are Solid Waste

This Resource Conservation and Recovery Act (RCRA) final rule identifies which non-hazardous secondary materials are, or are not, solid wastes when burned in combustion units:

Units that burn non-hazardous secondary materials that are solid waste under RCRA would be subject to the section 129 Clean Air Act (CAA) requirements, and
Units that burn non-hazardous secondary materials that are not solid waste under RCRA would be subject to the section 112 CAA requirements.
(see details on CAA requirements)

Refer to the main NHSM page for details about the rule and implementation. Refer to the bottom of the page for direction on accessing supporting documents in Regulations.gov.

Final Rule - Federal Register Notice | PDF (97 pp, 687 KB)

Information developed for the 2011 NHSM Final Rule promulgation:
Final Rule Fact Sheet | PDF (2 pp, 236K) | Press Release | Frequent Questions

June 4, 2010 - Proposed Rule

Title: Identification of Non-Hazardous Secondary Materials That Are Solid Waste

The Identification of Non-Hazardous Materials That Are Solid Waste: Proposed Rule was signed April 29, 2010. The Federal Register Notice was published June 4, 2010.

Public hearings on the proposed rule and the interrelated Clean Air Act Rules were held during the comment period for the proposed rules. Refer to the bottom of the page for direction on accessing supporting documents in Regulations.gov.

Proposed Rule - Federal Register Notice

Information developed for the 2010 NHSM Proposed Rule Promulgation:
Fact Sheet | Press Release | Frequent Questions (PDF) (7 pp, 56.30K)

January 2, 2009 - Advanced Notice of Proposed Rulemaking

Title: Identification of Non-Hazardous Materials That Are Solid Waste

In 2009, the Agency received comments through an Advanced Notice of Proposed Rulemaking (ANPRM) on which non-hazardous secondary materials are or are not solid waste under RCRA. This assisted the Agency in developing standards under sections 112 and 129 of the CAA. Refer to the bottom of the page for direction on accessing supporting documents in Regulations.gov.

Advanced Notice of proposed Rulemaking - Federal Register Notice (PDF) (21 pp, 140K)

Supporting Documents for the NHSM Rulemakings and Docket Access:

Docket Access to Additional Supporting Documents and Related NHSM Rulemaking Documents

The supporting documentation for the NHSM rulemaking under docket # EPA-HQ-RCRA-2008-0329 provides information, which is publicly available, on a wide array of secondary materials potentially affected by this action. This is available through Regulations.gov.

To use Regulations.gov - In the Keyword or ID Search box, type in the docket number EPA-HQ-RCRA-2008-0329 and press "Enter" to receive search results.

In order to access materials specific to a particular rulemaking, restrict the date to the publication date range for the rule of interest.

For example, to access comments or supporting documents used to develop the 2011 NHSM Final Rule, restrict the "posted Date" to start after the June 4, 2010 proposed rule and ending on the March 21, 2011 publication date of the final rule.

In order to access comments and supporting documents for the proposed revisions to the final rule, search for docket entries on and after December 23, 2011.

In order to select a specific document, search regulations.gov by the document ID. The document ID numbers for the NHSM final and proposed rules are listed below:

1. EPA-HQ-RCRA-2008-0329-1981 - Final Rule Revisions (February 7, 2013)
2. EPA-HQ-RCRA-2008-0329-1843 - Proposed Revisions (December 23, 2011)
3. EPA-HQ-RCRA-2008-0329-1734 - Final Rule (March 21, 2011)
4. EPA-HQ-RCRA-2008-0329-0534 - Proposed Rule (June 4, 2010)
5. EPA-HQ-RCRA-2008-0329-0001 - Advanced Notice of Proposed Rulemaking (January 2, 2009)

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