EPA Announces Intent to Revise/Clarify Non-Hazardous Secondary Materials Rule

November 10, 2011
by BART CASSIDY
MGKF News Flash

In March 2011, EPA promulgated a series of regulations in response to court orders applicable to delayed air quality standards. EPA's initial efforts at promulgating maximum achievable control technology ("MACT") standards for boilers and other combustion units (the "Boiler MACT") and emission limitations for commercial and industrial solid waste incineration units (the "CISWI Rule") had been challenged by environmentalists as insufficiently stringent, and struck down by the Courts. EPA faced a Court-ordered deadline to promulgate replacement rules. When the Court rejected EPA's request for a further extension of those deadlines, EPA promulgated the revised Boiler MACT and CISWI Rule, published in the Federal Register in March 2011, but concurrently announced its intention to administratively stay both rules while EPA undertook to reconsider the regulatory requirements.

The applicability of the CISWI Rule depends upon the determination of whether a facility is combusting or incinerating a "solid waste." EPA therefore had proceeded on a parallel track to promulgate a separate rulemaking to define those non-hazardous secondary materials ("NHSM") that qualify as a solid waste when combusted. EPA promulgated its determinations in this respect within the NHSM Rule, also published in the Federal Register in March 2011. However, unlike the Boiler MACT and CISWI Rule, EPA determined not to stay or reconsider the NHSM Rule.

The NHSM rule distinguishes in the first instance among secondary materials based on whether the secondary material can be classified as a "traditional fuel." If in EPA's assessment the NHSM is not a traditional fuel, it is considered a solid waste. Nonetheless, such material may not be considered a solid waste at the point of combustion if it is sufficiently "processed" and satisfies "legitimacy criteria" prior to the point of combustion. The regulation itself provides very little information to guide the determination of whether specific material meets these standards. Further, the CISWI Rule imposes upon the owner/operator of the combustion unit the burden and obligation to establish that the NHSM is not a solid waste at the point of combustion, in order to avoid CISWI applicability.

Both prior to and since promulgating the NHSM Rule, EPA has received numerous comments, complaints and requests for clarification regarding the intended scope and implementation of the regulation. Although EPA has issued several letters to specific parties "clarifying" the effect and intent of the NHSM Rule as it relates to the CISWI Rule with respect to certain materials, the legal challenges to the NHSM Rule have continued. Similarly, political opposition to EPA's rulemaking approach is mounting.

Apparently in response to this pressure, the legal challenges and the numerous requests for clarification, EPA has now announced that it will undertake a rulemaking effort to clarify certain of the concepts underlying the NHSM Rule. EPA has reported its intention to publish, by the end of November, its proposed rulemaking in this context. As EPA proceeds with this effort, the Court has determined to stay the continued litigation concerning the NHSM Rule.