The Future of Secondary Materials as Fuel

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Courtesy of All4 Inc.

Many questions related to the regulatory status of facilities that use secondary materials as alternative fuels are anticipated to be answered in 2010.  In simple terms, if a combustion source uses a secondary material that is characterized as solid waste as an alternative fuel, then that source could be subject to a Clean Air Act (CAA) Section 129 standard.  If the same source used a secondary material that is not characterized as a solid waste, then that source could be subject to a CAA Section 112 standard.  While the details of the specific Section 112 and 129 rules can be complicated, the over-riding question relates to how individual secondary materials that are used as fuels are ultimately classified.

Introduction

Many questions related to the regulatory status of facilities that use secondary materials as alternative fuels are anticipated to be answered in 2010. In simple terms, if a combustion source uses a secondary material that is characterized as solid waste as an alternative fuel, then that source could be subject to a Clean Air Act (CAA) Section 129 standard. If the same source uses a secondary material that is not characterized as solid waste, then that source could be subject to a CAA Section 112 standard. While the details of the specific Section 112 and 129 rules can be complicated, the over-riding question relates to how individual secondary materials that are used as fuels are ultimately classified.

As we’ve previously reported in 4 The Record, the use of alternative and non-traditional fuels for heat and power generation continues to grow. A wide variety of non-hazardous secondary materials1 have been successfully permitted for use in boilers and industrial furnaces and have proven to be effective fossil fuel substitutes at numerous public, commercial, and industrial manufacturing facilities. However, the remand and vacatur of the Commercial and Industrial Solid Waste Incineration (CISWI) Definitions Rule on June 8, 2007 by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) could significantly influence how facilities that utilize alternative or nontraditional fuels are regulated under the CAA. Facilities that combust materials that are ultimately characterized as a “solid waste” under Subtitle D of the Resource Conservation and Recovery Act (RCRA) will be subject to regulations promulgated in accordance with Section 129 of the CAA. Facilities that combust materials that are not characterized as solid waste could be subject to regulation under Section 112 of the CAA. This article provides an overview of the solid waste and air quality issues that are currently being considered by U.S. EPA and outlined the Section 129 requirements that many facilities could be facing.

Background

The Commercial and Industrial Solid Waste Incineration (CISWI) Rule was promulgated on December 1, 2000, and set emission standards for CISWI units pursuant to Section 129 of the CAA. Following a voluntary remand of the CISWI Rule, U.S. EPA solicited comments on several key definitions in the CISWI rule including “solid waste,” “commercial and industrial waste,” and “CISWI unit.” U.S. EPA issued the “CISWI Definitions Rule” on September 22, 2005 after review and consideration of the public comments that were received. In the promulgated CISWI Definitions Rule, a “CISWI unit” was defined as “any combustion unit that combusts commercial or industrial waste (as defined in this subpart).” The rule further defined “commercial or industrial waste” as “solid waste (as defined in this subpart) that is combusted at any commercial or industrial facility using controlled flame combustion in an enclosed, distinct operating unit: whose design does not provide for energy recovery (as defined in this subpart); or is operated without energy recovery (as defined in this subpart).” This definition of commercial or industrial waste limited the applicability of the CISWI Rule to combustors that did not recover thermal energy for a useful purpose from the combustion of the material, thereby restricting rule applicability.

Following a petition for review of the CISWI Definitions Rule by environmental groups, the D.C. Circuit Court remanded and vacated the CISWI Definitions Rule on June 8, 2007. The D.C. Circuit Court2 determined that the Section 129 standards apply to any facility that combusts any commercial or industrial solid waste material, excluding available statutory exemptions3 and that U.S. EPA incorrectly excluded units that combust solid waste for the purposes of energy recovery from the CISWI Definitions Rule.

On January 2, 2009, U.S. EPA published an advance notice of proposed rulemaking (ANPR) seeking public comment and providing advanced notice of its intent to develop a definition for the term ‘‘solid waste’’ under RCRA for nonhazardous secondary materials that are used as a fuel or as ingredients in a manufacturing process4. The stated purpose of the ANPR is to solicit input to assist U.S. EPA in developing emissions standards under Sections 112 and 129 of the CAA, because of the CAA’s reference to the meaning of solid waste within the CAA as having the same meaning as solid waste under RCRA. A public meeting was held on January 28, 2010 in New Orleans to solicit additional public input regarding the identification of secondary materials that are solid wastes. A discussion handout that summarized U.S. EPA’s issues and concerns was provided at the meeting. U.S. EPA is facing an April 15, 2010 deadline for the proposed rule which corresponds to a court-mandated deadline for proposed Boiler MACT and CISWI rules. The deadline for final Boiler MACT and CISWI rules is December 16, 2010.

U.S. EPA estimates that up to 136,000 facilities (including industrial boilers, cement kilns, and power plants) combust secondary materials as alternative fuels. How U.S. EPA ultimately defines secondary materials that are solid wastes could have significant impacts on existing state-specific solid waste management programs and on facilities that combust secondary material as alternative fuels.

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