Part 241 Regulations

- The revisions pursuant to the final rule1

 (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 Secondary 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-hazardous 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 amendments are published in the Federal Register.) 

Subpart A—General 

§241.1 Purpose. 

This part identifies the requirements and procedures for the identification of solid wastes used as fuels or ingredients 

in combustion units under section 1004 of the Resource Conservation 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 akin 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 residuals 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, spent grains, cotton byproducts, corn and 

peanut production residues, rice milling and grain elevator operation residues); wood collected from forest fire 

clearance activities, trees and clean wood found in disaster 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 Register 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. 

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Part 241 Regulations

- The revisions pursuant to the final rule1

 (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 environment considering the nature and toxicity of the nonhazardous secondary material. 

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

three modifications:

(1) The definition includes the elements chlorine, fluorine, nitrogen, and sulfur in cases where non-hazardous 

secondary materials are burned as a fuel and combustion will result in the formation of hydrogen chloride (HCl), 

hydrogen fluoride (HF), nitrogen oxides (NOx), or sulfur dioxide (SO2). Chlorine, fluorine, nitrogen, and sulfur 

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

not as a fuel. 

(2) The definition does not include the following pollutants that are either unlikely to be found in non-hazardous 

secondary materials and products made from such materials or are adequately measured by other parts of this 

definition: hydrogen chloride (HCl), chlorine gas (Cl2), hydrogen fluoride (HF), nitrogen oxides (NOx), sulfur 

dioxide (SO2), fine mineral fibers, particulate matter, coke 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 facility, whether by the ownership of stock, voting 

rights, or otherwise, except that contractors 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 and 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, commission, political subdivision of a 

state, or any interstate body. 

Processing means any operations that transform discarded non-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 improve 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 for 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 rule1

 (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 manufacturing 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, off-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 and are unused products that have not been 

discarded and therefore, are not solid wastes, including: (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 

which meets the specifications outlined in 40 CFR 279.11, currently mined coal refuse that previously had not 

been usable as coal, and clean cellulosic biomass. These 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 facility combusting the non-hazardous secondary material is controlled by the 

generator; or both the generating facility and the facility combusting 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 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. 

(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 solid wastes, unless a petition is submitted to, and a determination granted by, 

the EPA pursuant to paragraph (c) of this section. The criteria to be addressed in the petition, as well as the 

process for making the non-waste determination, are 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 legitimacy criteria specified in paragraph (d)(1) of this section. 

(2) The following non-hazardous secondary materials that 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 ingredient 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 rule1

 (signed December 20, 2012) are indicated in red text. 

4

(4) Fuel or ingredient products that are used in a combustion unit, and are produced from the processing of 

discarded non-hazardous secondary materials and that meet the legitimacy criteria specified in paragraph 

(d)(1) of this section, with respect to fuels, and paragraph (d)(2) of this section, with respect to ingredients. 

The legitimacy criteria apply after the non-hazardous secondary material is processed to produce a fuel or 

ingredient product. Until the discarded non-hazardous secondary material is processed to produce a non-waste 

fuel or ingredient, the discarded 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 determination that a non-hazardous secondary material 

that is used as a fuel, which is not managed within the control of the generator, is not discarded and is not a solid 

waste when combusted. This responsibility may be retained by the Assistant 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 process the non-waste determination petition. If multiple combustion units are 

located in one EPA Region, the application must be submitted to the Regional Administrator for that Region. The 

criteria and process for making such non-waste 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 Administrator for the Office of Solid Waste and Emergency Response

for a determination that the non-hazardous secondary material, even though it has been transferred to a third 

party, has not been discarded and is indistinguishable 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 the non-hazardous secondary material is comparable to 

commercial fuels; 

(iii) Whether the non-hazardous secondary material will be used in a reasonable time frame given the 

state of the market; 

(iv) Whether the constituents in the non-hazardous secondary material are released to the air, water or 

land from the point of generation to the point just prior 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 pursuant 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 relevant criteria in paragraphs (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 draft 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 web site. 

(iii) The Regional Administrator or the Assistant Administrator for the Office of Solid Waste and 

Emergency Response will accept public comments on the tentative 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. 

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secondary material is

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Part 241 Regulations

- The revisions pursuant to the final rule1

 (signed December 20, 2012) are indicated in red text. 

5

(iv) If a change occurs that affects how a non-hazardous 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 for 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 materials 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 material prior to use must not exceed reasonable 

time frames; 

(B) Where there is an analogous fuel, the non-hazardous 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 traditional 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 that traditional fuel. In comparing 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 data from the specific traditional fuel being replaced. 

To account for natural variability in contaminant levels, persons can use the full range of traditional fuel 

contaminant levels, provided such comparisons also consider variability in non-hazardous secondary 

material contaminant levels. Such comparisons 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 materials 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 material 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-hazardous secondary material must be adequately 

contained to prevent releases to the environment; 

(ii) The non-hazardous secondary material must provide 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 used to produce a valuable product or intermediate. 

The product or intermediate 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 rule1

 (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 those 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 managed under the oversight of established tire collection 

programs, including tires removed from vehicles and off-specification tires. 

(2) Resinated wood.

(3) Coal refuse that has been recovered from legacy piles and processed in the same manner as currentlygenerated coal refuse.

(4) Dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and 

paper mills that burn a significant portion of such materials 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 Administrator by certified mail and must include:

(i) The petitioner's name and address;

(ii) A statement of the petitioner's interest in the 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-hazardous secondary material does not meet the legitimacy 

criteria, the applicant must explain why such non-hazardous 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 the form of an advanced notice of proposed rulemaking, a proposed rule, or a 

tentative determination to deny the petition, in the Federal Register 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 decide on its own motion to hold an informal public 

hearing.

(4) After evaluating all public comments the Administrator will make a final decision by publishing in the 

Federal Register a regulatory amendment or a denial of the petition.

(5) The Administrator will grant or deny a petition based 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, has been sufficiently processed into a material that is 

legitimately used as a fuel. 

(ii) Where any one of the legitimacy criteria in section 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 functionally the same as the comparable traditional fuel, or other relevant 

factors as appropriate.