## Part 241 Regulations

- The revisions pursuant to the final rule 1 (signed December 20, 2012) are indicated in red text.



### 1 PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION UNITS

Section Contents

Subpart A—General §241.1 Purpose. §241.2 Definitions.

Subpart B—Identification of Non-Hazardous Secondar y Materials That Are Solid Wastes When Used as Fuels or Ingredients In Combustion Units §241.3 Standards and procedures for identification of non-hazardous secondary materials that are solid wastes when used as fuels or ingredients in combustion units. §241.4 Non-waste determinations for specific non-ha zardous secondary materials when used as a fuel.

Authority: 42 U.S.C. 6903, 6912, 7429.

Source: 76 FR 15549, Mar. 21, 2011, unless otherwise noted. 1
(This will be updated when the regulatory amendm ents are published in the Federal Register.)

Subpart A—General

§241.1 Purpose. This part identifies the requirements and procedures for the identification of soli d wastes used as fuels or ingredients
in combustion units under section 1004 of the Resource Cons ervation and Recovery Act and section 129 of the Clean

Air Act.

§241.2 Definitions. For the purposes of this subpart:

Clean cellulosic biomass means those residuals that are ak in to traditional cellulosic biomass , including, but not limited to: agricultural and forest-derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, sawdust, trim, tree harvesting resi duals from logging and sawmill materials , hogged fuel, wood pellets, untreated wood pallets); urban wood (e.g., tree trimmings, stumps, and related forest-derived biomass from urban settings); corn stover and other biomass crops used specifically for the production of cellulosic biofuels ( e.g., energy cane, other fast growing grasses , byproducts of ethanol natural fermentation processes); bagasse and other crop residues (e.g., peanut shells , vines, orchard trees, hulls, seeds, sp ent grains, cotton byproducts, corn and peanut production residues, rice milling an d grain elevator operation residues); wood collected from forest fire clearance activities, trees and clean wood found in disast er debris, clean biomass from land clearing operations,
and clean construction and demolition wood. These fuels are not secondary materials or solid wastes unless
discarded. Clean biomass is biomass that does not contain contaminants at concentrations not normally associated with virgin biomass materials.

1 The regulations for non-hazardous secondary materials (NHSM) were initially promulgated under the 2011 NHSM final rule. The revisions noted in this document are based on the pre-publication version of the rule signed 12-20-12. Please refer to the official version in a forthcoming Federal Regi ster publication. For additional information on the NHSM rulemakings, including the entire 12-20-12 signed rule, see http://www.epa.gov/osw/nonhaz/define/rulemaking.htm

. Deleted: such as

Deleted: and

Deleted: ),

Deleted: energy

Deleted: (

Deleted: ),

Deleted: ),

## Part 241 Regulations

- The revisions pursuant to the final rule 1 (signed December 20, 2012) are indicated in red text.



### 2 Contained means the non-hazardous secondary material is stored in a manner that adequately prevents
releases or other hazards to human health and the envi ronment considering the nature and toxicity of the nonhazardous secondary material.

Contaminants means all pollutants listed in Clean Air Act sect ions 112(b) or 129(a)(4), with the following

three modifications:

(1) The definition includes the elements chlorine, fluo rine, nitrogen, and sulfur in cases where non-hazardous secondary materials are burned as a fuel and combustion w ill result in the formation of hydrogen chloride (HCl), hydrogen fluoride (HF), nitrogen oxides (NO x ), or sulfur dioxide (SO 2 ). Chlorine, fluorine, nitrogen, and sulfur

are not included in the definition in cases where non-haza rdous secondary materials are used as an ingredient and

not as a fuel.

(2) The definition does not include the following pollutants that are either un likely to be found in non-hazardous secondary materials and products made from such material s or are adequately measured by other parts of this definition: hydrogen chloride (HCl), chlorine gas (Cl 2 ), hydrogen fluoride (HF), nitrogen oxides (NO x ), sulfur
dioxide (SO 2 ), fine mineral fibers, particulate matter, co ke oven emissions, opacity, diazomethane, white phosphorus, and titanium tetrachloride.

(3) The definition does not include m- cresol, o-cresol, p-cresol , m-xylene, o-xylene, and p-xylene as individual contaminants distinct from the grouped pollutants total cresols and total xylenes.

Control means the power to direct the policies of the f acility, whether by the ownership of stock, voting rights, or otherwise, except that contr actors who operate facilities on behalf of a different person as defined in this
section shall not be deemed to “control” such facilities.

Established tire collection program means a comprehensive collection system or contractual arrangement that ensures scrap tires are not discarded and are handled as valuable commodities through arrival at the combustion facility. This can include tires that were not abandoned a nd were received from the general public at collection
program events.

Generating facility means all contiguous property owned, leased, or otherwise controlled by the nonhazardous secondary material generator.

Ingredient means a non-hazardous secondary material that is a component in a compound, process or product.

Non-hazardous secondary material means a secondary material that, when discarded, would not be identified as a hazardous waste under Part 261 of this chapter.

Person is defined as an individual, trust, firm, joint stock company, Federal agency, corporation (including government corporation), partnership, association, State, municipality, comm ission, political subdivision of a state, or any interstate body.

Processing means any operations that transform discarded no n-hazardous secondary material into a non-waste fuel or non-waste ingredient product. Processing includes, but is not limited to, operations necessary to: Remove or destroy contaminants; significantly im prove the fuel characteristics of the material, e.g., sizing or drying the material in combination with other operations; chemically improve the as-fired energy content; or improve the ingredient characteristics. Minimal operations that result only in modifying the size of the material by shredding do not constitute processing fo r purposes of this definition. Deleted: Contaminants means any constituent in non-hazardous secondary materials that will result in emissions of the air pollutants identified in Clean Air Act section 112(b) or the nine pollutants listed under Clean Air Act section¶ 129(a)(4)) when such non-hazardous secondary

materials are burned as a fuel or used as an ingredient, including those constituents that could generate products of incomplete combustion.¶

Deleted: in accordance with section 241.3(b)(2)(i) from the point of removal from the vehicle

## Part 241 Regulations

- The revisions pursuant to the final rule 1 (signed December 20, 2012) are indicated in red text.



### 3 Resinated wood means wood products (containing binders and adhesives) produced by primary and secondary wood products manufacturing . Resinated wood includes residues from the manufacture and use of resinated wood, including materials such as board trim, sander dust, panel trim , and off-specification resinated wood products that do not meet a ma nufacturing quality or standard

.

Secondary material means any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, of f-specification commercial chemical products or manufacturing chemical intermediates, post-industrial material, and scrap.

Solid waste means the term solid waste as defined in 40 CFR 258.2.

Traditional fuels means materials that are produced as fuels a nd are unused products that have not been discarded and therefore, are not solid wa stes, including: (1) Fuels that have be en historically managed as valuable fuel products rather than being managed as waste material s, 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, an d coke oven gas) and cellulosic biomass (virgin wood); and (2) alternative fuels developed from virgin materials th at can now be used as fuel products, including used oil which meets the specifications outlined in 40 CFR 279.11, cu rrently mined coal refuse that previously had not been usable as coal, and clean cellulosic biomass. Thes e fuels are not secondary materials or solid wastes unless

discarded.

Within control of the generator means that the non-hazardous secondary material is generated and burned in combustion units at the generating facility; or that such material is generated and burned in combustion units at different facilities, provided the faci lity combusting the non-hazardous sec ondary material is controlled by the generator; or both the generating faci lity and the facility comb usting the non-hazardous secondary material are under the control of the same person as defined in this section.

Subpart B—Identification of Non-Hazardous Secondary Ma terials That Are Solid Wastes When Used as Fuels or Ingredients In Combustion Units

§241.3 Standards and procedures for identification of non-hazardous secondary materials that are solid wastes when used as fuels or ingredients in combustion units. (a) Except as provided in paragraph (b) of this section or in §241.4(a) of this subpart , non-hazardous secondary
materials that are combusted are soli d wastes, unless a petition is submitted to, and a determination granted by,
the EPA pursuant to paragraph (c) of this section. The criteri a to be addressed in the petition, as well as the process for making the non-waste determination, ar e specified in paragraph (c) of this section.



### (b) The following non-hazardous secondary materials are not solid wastes when combusted: (1) Non-hazardous secondary materials used as a fuel in a combustion unit that remain within the control of the generator and that meet the le gitimacy criteria specified in paragraph (d)(1) of this section. (2) The following non-hazardous secondary materials th at have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator):

(i) [Reserved] (ii) [Reserved]

(3) Non-hazardous secondary materials used as an ingred ient in a combustion unit that meet the legitimacy criteria specified in paragraph (d)(2) of this section. Deleted: resin

Deleted: derived from

Deleted: and comprised of

Deleted: items

Deleted: and

Deleted: Regional Administrator

Deleted: (i) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs.¶ (ii) Resinated wood used in a combustion unit.¶

## Part 241 Regulations

- The revisions pursuant to the final rule 1 (signed December 20, 2012) are indicated in red text.



### 4 (4) Fuel or ingredient products that are used in a combustion unit, and are produc ed from the processing of discarded non-hazardous secondary materials and that m eet the legitimacy criteria specified in paragraph (d)(1) of this section, with respect to fuels, and paragraph (d)(2) of th is section, with respect to ingredients. The legitimacy criteria apply after the non-hazardous s econdary material is processed to produce a fuel or ingredient product. Until th e discarded non-hazardous secondary materi al is processed to produce a non-waste fuel or ingredient, the dis carded non-hazardous secondary material is considered a solid waste and would be subject to all appropriate federal, state, and local requirements.

(c) The Regional Administrator may grant a non-waste de termination that a non-hazardous secondary material that is used as a fuel, which is not managed within the co ntrol of the generator, is not discarded and is not a solid
waste when combusted. This responsibility may be retained by the As sistant Administrator for the Office of Solid Waste and Emergency Response if combustors are located in multiple EPA Regions and the petitioner requests that the Assistant Administrator proc ess the non-waste determination petiti on. If multiple combustion units are located in one EPA Region, the application must be subm itted to the Regional Administrator for that Region. The criteria and process for making such non-wa ste determinations includes the following: (1) Submittal of an application to the Regional Administrator for the EPA Region where the facility or facilities are located or the Assistant Administra tor for the Office of Solid Waste and Emergency Response for a determination that the non-hazardous secondary mate rial, even though it has been transferred to a third party, has not been discarded and is indis tinguishable in all relevant aspects from a fuel product

. The determination will be based on whether the non-hazardous secondary material that has been discarded is a legitimate fuel as specified in paragraph (d)(1) of this section and on the following criteria: (i) Whether market participants treat the non-hazardous secondary material as a product rather than as a solid waste; (ii) Whether the chemical and physical identity of th e non-hazardous secondary material is comparable to commercial fuels; (iii) Whether the non-hazardous secondary material wi ll be used in a reasonable time frame given the state of the market; (iv) Whether the constituents in the non-hazardous s econdary material are released to the air, water or land from the point of generation to the point just prio r to combustion of the secondary material at levels comparable to what would otherwise be released from traditional fuels; and (v) Other relevant factors. (2) The Regional Administrator or Assistant Administrator for the Office of Solid Waste and Emergency Response will evaluate the application pursu ant to the following procedures: (i) The applicant must submit an application for the non-waste determination addressing the legitimacy criteria in paragraph (d)(1) of this section and the re levant criteria in paragrap hs (c)(1)(i) through (v) of this section. In addition, the applicant must also show that the non-hazardous secondary material has not
been discarded in the first instance. (ii) The Regional Administrator or Assistant Administrator for the Office of Solid Waste and Emergency Response will evaluate the application and issue a dr aft notice tentatively granting or denying the application. Notification of this tentative decision will be published in a newspaper advertisement or radio broadcast in the locality where the facility combusting the non-hazardous secondary material is located, and be made available on the EPA's w eb site. (iii) The Regional Administrator or the Assistant Administrator for the Office of Solid Waste and Emergency Response will accept public comments on the tenta tive decision for 30 days, and may also hold a public hearing upon request or at his discretion. The Regional Administrator or the Assistant Administrator for the Office of Solid Waste and Emergency Response will issue a final decision after receipt of comments and after a hearing (if any). If a determination is made that the non-hazardous secondary material is a non-waste fuel, it will be retroactive and apply on the date the petition was

submitted. Deleted: combusting the non-hazardous secondary material is

Deleted: fuel.

Deleted:

,

Deleted: W

Deleted: at least

Deleted: the

## Part 241 Regulations

- The revisions pursuant to the final rule 1 (signed December 20, 2012) are indicated in red text.



### 5 (iv) If a change occurs that affects how a non-haza rdous secondary material meets the relevant criteria contained in this paragraph after a formal non-waste determination has been granted, the applicant must re-apply to the Regional Administrator or the Assistant Administrator fo r the Office of Solid Waste and Emergency Response for a formal determination that the non-hazardous secondary material continues to meet the relevant criteria and, thus

, is not a solid waste.

(d) Legitimacy criteria for non-hazardous secondary materials. (1) Legitimacy criteria for non-hazardous secondary mate rials used as a fuel in combustion units include the following: (i) The non-hazardous secondary material must be managed as a valuable commodity based on the following factors: (A) The storage of the non-hazardous secondary mate rial prior to use must not exceed reasonable time frames; (B) Where there is an analogous fuel, the non-haz ardous secondary material must be managed in a manner consistent with the analogous fuel or otherwise be adequately contained to prevent releases to the environment; (C) If there is no analogous fuel, the non-hazardous secondary material must be adequately contained so as to prevent releases to the environment; (ii) The non-hazardous secondary material must have a meaningful heating value and be used as a fuel in a combustion unit that recovers energy. (iii) The non-hazardous secondary material must contain contaminants or groups of contaminants at levels comparable in concentration to or lower than those in traditional fuel ( s ) which the combustion unit is designed to burn. In determining which tradit ional fuel(s) a unit is designed to burn, persons may choose

a traditional fuel that can be or is burned in the particular type of boiler, whether or not the combustion unit is permitted to burn th at traditional fuel. In co mparing contaminants between traditional fuel(s) and a non-hazardous secondary material, persons can use data for traditional fuel contaminant levels compiled from national surveys, as well as contaminant level da ta from the specific traditional fuel being replaced. To account for natural variability in contaminant levels, persons can us e the full range of traditional fuel contaminant levels, provided such comparisons also consider vari ability in non-hazardous secondary
material contaminant levels. Such comparison s are to be based on a direct comparison of the contaminant
levels in both the non-hazardous secondary material and traditional fuel (s) prior to combustion

. (2) Legitimacy criteria for non-hazardous secondary ma terials used as an ingredient in combustion units include the following: (i) The non-hazardous secondary material must be managed as a valuable commodity based on the following factors: (A) The storage of the non-hazardous secondary mate rial prior to use must not exceed reasonable time frames; (B) Where there is an analogous ingredient, the non-hazardous secondary material must be managed in a manner consistent with the analogous ingredient or otherwise be adequately contained to prevent releases to the environment; (C) If there is no analogous ingredient, the non-ha zardous secondary material must be adequately contained to prevent releases to the environment; (ii) The non-hazardous secondary material must pr ovide a useful contribution to the production or manufacturing process. The non-hazardous secondary material provides a useful contribution if it contributes a valuable ingredient to the product or intermediate or is an effective substitute for a commercial product. (iii) The non-hazardous secondary material must be us ed to produce a valuable product or intermediate. The product or intermed iate is valuable if: (A) The non-hazardous secondary material is sold to a third party, or Deleted: is

Deleted: to the

Deleted: itself

## Part 241 Regulations

- The revisions pursuant to the final rule 1 (signed December 20, 2012) are indicated in red text.



### 6 (B) The non-hazardous secondary material is used as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process. (iv) The non-hazardous secondary material must result in products that contain contaminants at levels that are comparable in concentration to or lower than t hose found in traditional products that are manufactured without the non-hazardous secondary material.

§241.4 Non-waste determinations for specific non-hazardous secondary materials when used as a fuel. (a) The following non-hazardous secondary materials are not solid wastes when used as a fuel in a combustion

unit: (1) Scrap tires that are not discarded and are manage d under the oversight of es tablished tire collection programs, including tires removed from vehicles and off-specification tires. (2) Resinated wood. (3) Coal refuse that has been reco vered from legacy piles and processed in the same manner as currentlygenerated coal refuse. (4) Dewatered pulp and paper sludges that are not discar ded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such mate rials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials.

(b) Any person may submit a rulemaking petition to the Administrator to identify additional non-hazardous secondary materials to be listed in paragraph (a) of this section. Contents and procedures for the submittal of the petitions include the following: (1) Each petition must be submitted to the Ad ministrator by certified mail and must include: (i) The petitioner's name and address; (ii) A statement of the petitioner' s interest in th e proposed action; (iii) A description of the proposed action, including (where appropriate) suggested regulatory language;
and (iv) A statement of the need and justification for the proposed action, including any supporting tests, studies, or other information. Where the non-hazardou s secondary material does not meet the legitimacy criteria, the applicant must explain why such non-haza rdous secondary material should be considered a non-waste fuel, balancing the legitimacy criteria with other relevant factors. (2) The Administrator will make a tentative decision to grant or deny a petition and will publish notice of such tentative decision, either in th e form of an advanced notice of proposed rulemaking, a proposed rule, or a tentative determination to deny the petition, in the Federal Regi ster for written public comment. (3) Upon the written request of any interested person , the Administrator may, at its discretion, hold an informal public hearing to consider oral comments on the tentative decision. A person requesting a hearing must state the issues to be raised and explain why written comments would not suffice to communicate the person's views. The Administrator may in any case d ecide on its own motion to hold an informal public hearing. (4) After evaluating all public comments the Administ rator will make a final decision by publishing in the Federal Register a regulatory amendm ent or a denial of the petition. (5) The Administrator will grant or deny a petition ba sed on the weight of evidence showing the following: (i) The non-hazardous secondary material has not been discarded in the first instance and is legitimately used as a fuel in a combustion unit, or if discarded, ha s been sufficiently processe d into a material that is legitimately used as a fuel. (ii) Where any one of the legitimacy criteria in s ection 241.3(d)(1) is not met, that the use of the nonhazardous secondary material is integrally tied to the industrial production process, that the nonhazardous secondary material is func tionally the same as the comparable traditional fuel, or other relevant factors as appropriate.