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When the Boiler MACT rule was vacated in 2007, one key element in the court challenge was that many non-fossil fuel materials burned in industrial boilers should be classified as solid wastes and regulated accordingly.  Along with the recently proposed Boiler MACT and rules for commercial/industrial/solid waste incinerators (CISWI), EPA proposed criteria to determine whether non-hazardous secondary materials (NHSM) qualify as solid waste.  Under the proposal, “solid waste incineration units” are defined as units which burn “any solid waste material from commercial or industrial establishments.”

The proposed criteria for determining solid waste status include the whether the material:

  • Is a traditional fuel
  • Was initially discarded
  • Is managed with the control of the generator
  • Has been sufficiently processed
  • Meets the legitimacy criteria
    • Is managed as a valuable commodity
    • Has a meaningful heating value
    • Contains contaminants at levels comparable to or lower than traditional fuels which the unit is designed to burn

The rule defines “traditional fuels” as specific fossil fuels and specific clean cellulosic biomass materials.  NHSM are not considered solid wastes if they remain within the control of the generator and meet the three legitimacy criteria identified above.  Even if NHSM have been discarded, they can qualify as fuels if they meet the legitimacy criteria and have been sufficiently processed to remove or destroy contaminants and improve the fuel characteristics, energy content, and ingredient characteristics.

EPA has proposed a petition process for materials used as fuels outside the control of the generator.  To petition, the material must not be discarded and must be indistinguishable in all relevant respects from a fuel.  To qualify as fuel, the petitioner must demonstrate that the material is handled as a fuel in the market, that its physical and chemical identity is comparable to commercial fuels, that it will be used in a reasonable time frame, that its constituents will be released to the environment in levels comparable to traditional fuels, and other factors.

Materials specified by the rule as generally not solid waste include clean biomass, clean biofuel from solid waste, wood products and pulp & paper mill residuals, and TDF (where steel belts and wires have been removed), and on-spec used oil.  Materials that are generally defined as solid waste include painted wood,  some treated wood, whole or untreated tires, municipal sewage sludge, abandoned coal refuse, and contaminated construction and demolition debris. 

Industry may have concerns related to issues such as implementation of the legitimacy criteria, the level of processing required for previously discarded material, and the petition process which may allow states to make individual determinations.  The comment period was extended to August 3, 2010.