xvEPA
     United States
     Environmental Protection
     Agency
     EPA530-F-11-003

        Fact Sheet: Identification of Non-Hazardous Secondary Materials That Are Solid Wastes Final Rule

           EPA is issuing four rules that will provide substantial reductions in the release of hazardous air
     pollutants into the atmosphere, and provide substantial benefits to the many communities where these
     units are located.

           The four rules were developed together because of the interrelationship among them.

           Three of the rules establish emission standards under the Clean Air Act (CAA) for boilers and
     incinerators, while the other rule was developed under the Resource Conservation and Recovery Act
     (RCRA).

           The RCRA rule identifies which non-hazardous secondary materials are, or are not, solid wastes
     when burned in combustion units, such that:

            O      Non-hazardous secondary materials considered solid wastes under RCRA would be
                    subject to the section 129 CAA requirements

            O      Non-hazardous secondary materials not considered solid wastes under RCRA would be
                    subject to the section 112 CAA requirements

           Under the RCRA rule, traditional fuels, including historically managed traditional fuels (e.g. coal,
     oil, natural gas)  and "alternative" traditional fuels (e.g. clean cellulosic biomass) are not secondary
     materials and thus are not solid wastes

           In general, non-hazardous secondary materials burned in combustion units are identified as
     solid wastes unless:

            O      The material is used as a fuel  and remains within the control of the generator (whether
                    at the site of generation or another site the generator has control over) and it meets the
                    legitimacy criteria;

            O      The following materials have not been discarded in the first instance and meets the
                    legitimacy criteria when used as a fuel (by the generator or outside the control of the
                    generator): scrap tires removed from vehicles and managed under an established  tire
                    collection programs and  resinated wood residuals;

            O      The material is used as an ingredient in a manufacturing process (whether by the
                    generator or outside the control of the generator) that meets the legitimacy criteria;

            O      The material has  been sufficiently processed to produce a fuel or ingredient that meets
                    the legitimacy criteria; or

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EPA530-F-11-003
       O      Through a case-by-case petition process, it has been determined that material handled
               outside the control of the generator has not been discarded and is indistinguishable in
               all relevant aspects from a fuel product.

Background

      Congress added section 129 to the CAA in 1990 specifically to address emissions from burning
solid waste.

      In determining which emission standards combustion units that burn non-hazardous secondary
materials are subject to, section 129 of the CAA specifically states, that the term "solid waste" shall have
the meaning "established by the Administrator pursuant to RCRA."

      The Commercial and Industrial Solid Waste Incineration (CISWI) definitions rule ("Definitions
Rule"), which was issued in September 2005 pursuant to CAA section 129 requirements, excluded units
used to recover energy for a useful purpose from the definition of solid waste incinerators, and instead
these units were subject to the applicable CAA section 112 standards.

      The Definitions  Rule was subject to judicial challenge and vacated by the US Court of Appeals  for
the District of Columbia. The court concluded that EPA erred by excluding units that combust solid waste
for energy recovery from being subject to the CISWI standards. The court determined that the CAA
requires any unit that burns "any solid waste material at all," regardless of whether the material is being
burned as fuel, to be regulated under CAA section 129 as a "solid waste incineration unit." The court
also vacated and remanded the Boilers Rule, as the vacatur of the CISWI Definitions Rule would require
revision of the Boilers Rule.

      In response to the court's decision, EPA is issuing criteria which identify those non-hazardous
secondary materials used as fuels or ingredients in combustion units and whether they are or are not
considered solid waste.

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