NHSM 2011 Final Rule Regulations Showing the 2011 Proposed Rule Changes Tracked in Redline

1 of 7 PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION

UNITS

SUBPART A -- General

Sec. 241.1 Purpose.

241.2 Definitions.

SUBPART B – Identification of Non-Hazardous Secondary Materials that are Solid Wastes When Used as Fuels or Ingred ients In Combustion Units

Sec. 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.

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

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 fo rest-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 prod uction residues, rice milling and grain elevator operation residues); wood collected from forest fire clear ance 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.

Contaminants means all pollutants listed in Clean Ai r Act sections 112(b) and 129(a)(4),

with modifications outlined in this definition to reflect constituents found in non-hazardous secondary materials prior to combustion. The definition includes the following elemental contaminants that commonly form Clean Air Act section 112(b) and 129(a)(4) pollutants: antimony, arsenic, beryllium, cadmium, chlorine, chromium, cobalt, fluorine, lead, manganese, mercury, nickel, nitrogen, selenium, and sulfur. The definition does not include the followingClean Air Act section 112(b) and 129(a)(4) pollutants that are either unlikely to be found in nonDeleted: such as

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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 underClean Air Act section 129(a)(4)) when such nonhazardous secondary materials are burned as a fuel or used as an ingredient, including those constituents that could generate products of incomplete

combustion. ¶ ¶NHSM 2011 Final Rule Regulations Showing the 2011 Proposed Rule Changes Tracked in Redline

2 of 7 hazardous secondary materials prior to combustion 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, coke oven emissions, diazomethane, white phosphorus, titanium tetrachloride, m-cresol, o-cresol, p-cresol, m-xylene, o-xylene, and p-xylene.

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 non-hazardous secondary material.

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 shal l 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.

Generating facility means all contiguous property owned, leased, or otherwise controlled by the non-hazardous 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), pa rtnership, 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 ingr edient 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.

Resinated wood means wood products (containing resin adhesives) derived from primary and secondary wood products manufacturing and comp rised of such items as board trim, sander dust, and panel trim.

Secondary material means any material that is not the primary product of a manufacturing or commercial process, and can in clude post-consumer material, off-specification commercial chemical products or manufacturing ch emical intermediates, post-industrial material, Deleted: in accordance with section 241.3(b)(2)(i) from the point of removal from the vehicleNHSM 2011 Final Rule Regulations Showing the 2011 Proposed Rule Changes Tracked in Redline

3 of 7 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 so lid 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 natura l 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 f acility; or that such material is generated and burned in combustion units at differ ent 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 , nonhazardous secondary materials that are combusted are presumed to be solid wastes, unless a petition is submitted to, and a determination granted by, the Regional Administrator 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 mate rials 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 gene rator and that meet the leg itimacy 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 outs ide 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. (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 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.¶NHSM 2011 Final Rule Regulations Showing the 2011 Proposed Rule Changes Tracked in Redline

4 of 7 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 discar ded 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 used as a fuel, not managed within the control of the generator, is notdiscarded is not a solid waste when combusted. The criteria and process for making such nonwaste determinations includes the following: (1) Submittal of an application to the Re gional Administrator for the EPA Region where the facility combusting the non-hazardous secondary material is located 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 relevantaspects from a product fuel. The determination will be based on whether the nonhazardous secondary material 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 th e 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 will evalua te 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 will ev aluate the application and issue a draft notice tentatively granting or denying th e 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 EPA’s website. (iii) The Regional Administrator will accept public comments on the tentative decision for at least 30 days, and may also hold a public hearing upon request or at his discretion. The Regional Administ rator will issue a final decision after receipt of comments and after the hearing (if any). (iv) If a change occurs that affect s how a non-hazardous secondary materialNHSM 2011 Final Rule Regulations Showing the 2011 Proposed Rule Changes Tracked in Redline

5 of 7 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 for a formal determination that the non-hazardous secondary material continues to meet the relevant criteria and, thus 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 concentr ation 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 can 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 ranges of traditional fuel contaminant levels compiled from national surveys, as well as contaminant level data from the specific traditional fuel being replaced. 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 Deleted: fuels

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6 of 7 provides a useful contribution if it contribut es 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 (B) The non-hazardous secondary material is used as an effective

substitute for a commercial product or as an ingredie nt 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 ma nufactured 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 ar e managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification

tires. (2) Resinated wood.(b) Any person may submit a rulemaking petition to the Administrator to identify additional nonhazardous secondary materials to be listed in paragraph (a) of this section. Contents and procedures for submittal of the petitions include the following: (1) Each petition must be submitted to th e 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 mustexplain why such non-hazardous secondary material should be considered a nonwaste fuel, balancing the legitimacy cr iteria with other relevant factors. (2) The Administrator will make a tentative d ecision 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 te ntative determination to deny the petition, in the Federal Register for written public comment. (3) Upon the written request of any interest ed 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 Ad ministrator will make a final decision byNHSM 2011 Final Rule Regulations Showing the 2011 Proposed Rule Changes Tracked in Redline

7 of 7 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 non-hazardous secondary material is integrally tied to the industrial production process, that the non-hazardous secondary material is functionally the same as the comparable tr aditional fuel, or other relevant factors as appropriate.