EPA Issues Proposed Rule to Identify Non-Hazardous Secondary Materials Burned in Combustion Units as Solid Wastes

August 8, 2010
Client Alert Newsletter August 2010

On June 4, 2010, the U.S. Environmental Protection Agency ("EPA") published a proposed rule in the Federal Register (the "Proposed Rule") to identify which non-hazardous secondary materials burned as fuels or ingredients in combustion units constitute solid wastes under the Resource Conservation and Recovery Act ("RCRA"). The determination of whether non-hazardous secondary materials constitute solid wastes under RCRA is important because it determines how combustion units are regulated under the Federal Clean Air Act ("CAA"). That is, combustion units that burn non-hazardous secondary materials that are classified as solid wastes under RCRA are regulated as commercial or industrial incineration units under Section 129 of the CAA. By contrast, combustion units that burn non-hazardous secondary materials that are classified as non-wastes under RCRA are regulated as commercial, industrial, or institutional boilers under Section 112 of the CAA. CAA Sections 112 and 129 impose different emission limits and other standards on affected units and EPA is proposing air emission requirements pursuant to these statutory provisions concurrent with the Proposed Rule.

The Proposed Rule would substantially narrow the current category of non-hazardous secondary materials that would be identified as non-wastes under RCRA. Specifically, under the Proposed Rule, non-hazardous secondary materials burned in combustion units are generally identified as solid wastes unless they meet certain exemption criteria. These criteria take into account a number of factors, including but not limited to: (a) whether the non-hazardous secondary materials remain within the control of the generator; (b) whether they are used as an ingredient in a manufacturing process; (c) whether they have been sufficiently processed; and, (d) whether they are considered discarded and indistinguishable from a fuel product. The comment period for the Proposed Rule closed on August 3, 2010.