Proposed Changes to the Non-Hazardous Secondary Materials That Are Waste (NHSM) Rule

On December 2, 2011, the EPA Administrator, Lisa P. Jackson, signed a notice and EPA is submitting it for publication in the Federal Register (FR). The proposed changes to the NSHM rule, include:

  • In the case of “clean cellulosic biomass,” EPA is identifying specific materials that EPA believes are included within the current definition and would thus be considered a traditional non-waste fuel, including: agricultural derived biomass, other crop residues (including vines, orchard trees, hulls, seeds), other biomass crops used for the production of cellulosic biofuels, hogged fuel, untreated wood pallets, wood pellets, and wood debris from urban areas.
  • Adding a process for an owner or operator of a facility to petition EPA to categorically list non-hazardous secondary materials as being a non-waste when used as a fuel, including allowing other relevant factors beyond those used in the original rule – EPA is proposing to create a rulemaking petition process that would provide persons an opportunity to submit a rulemaking petition to the Administrator, seeking a categorical determination for additional NHSMs to be listed as non-waste fuels. To be successful, the petitioner would need to demonstrate that the NHSM has not been discarded, and either meets the previously established legitimacy criteria, or, after balancing the legitimacy criteria with other relevant factors, the NHSM is not a solid waste when used as a fuel.
  • Identifying two secondary materials, resinated wood products and tires managed under the oversight of established tire collection programs, as non-wastes when used as a fuel – EPA is proposing to categorically list several NHSMs as not being solid waste when burned as a fuel in a combustion unit where the Agency has sufficient information to determine that discard is not occurring when these materials are being used as fuels.
  • Revising the legitimacy criteria to expressly allow the comparison of groups of contaminants and clarifying that contaminant comparisons may be made for any traditional fuel for which a combustion unit is designed to burn – EPA is clarifying that similar groups of pollutants (such as volatile organics, semi-volatile organics) can be compared rather than individual contaminants. The proposal also clarifies that in cases where a unit can burn traditional fuels from several categories, such as a boiler that can burn either coal or biomass, contaminant comparisons could be made using data from either fuel category at the combustor’s discretion. In other words, if a facility burns biomass in its combustion unit, but that same combustion unit could also burn coal, the facility could compare its secondary material to either traditional fuel.