Originally published as a Schiff Hardin Environmental Update newsletter

On March 21, 2011, the U.S. Environmental Protection Agency (“USEPA”) published a final rule identifying which non-hazardous secondary materials are “solid wastes” under the Resource Conservation and Recovery Act (“RCRA”) when used as fuels or ingredients in combustion units. This “solid waste” definition provided in the new rule guides the determination of whether a combustion unit is required to meet the emissions standards for solid waste incineration units issued under Section 129 of the Clean Air Act (“CAA”) or the emissions standards for commercial, industrial and institutional boilers issued under Section 112 of the CAA. Additionally, the final rule also finalizes USEPA’s definition of what comprise traditional fuels, and an expanded definition of “legitimacy criteria” established by USEPA to prevent “sham” recycling of materials which should properly be classified as waste, not fuel.

The rule defines most non-hazardous secondary materials burned in combustion units to be “solid wastes” under RCRA. However, the rule excludes certain categories of non-hazardous secondary materials from the definition of “solid waste” when used “legitimately” as a fuel or an ingredient in a combustion unit:

  • Materials that remain within the control of the generator and used as fuel;
  • Scrap tires managed by established tire collection programs and used as fuel;
  • Resinated wood used as fuel;
  • Materials used as ingredients in fuel;
  • Discards that have undergone processing to produce fuel or ingredient products to be used in fuel; and
  • Materials that are used as fuels for which a non-waste determination has been granted.

Finally, the rule clarifies that certain substances which were “traditional fuels” are not waste or secondary materials unless they are discarded prior to use, and thus can be used in combustion units. “Traditional fuel” materials include: (1) Fuels that have been historically managed as valuable fuel products rather than being managed as waste materials, including fossil fuels (e.g., coal, oil and natural gas), their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane and coke oven gas) and cellulosic biomass (virgin wood); and (2) alternative fuels developed from virgin materials that can now be used as fuel products, including used oil that meets certain specifications, currently mined coal refuse that previously had not been usable as coal, and clean cellulosic biomass.

The final rule is effective as of May 20, 2011. The final rule is available in the March 21, 2011 edition of the Federal Register, or electronically here.