On March 21, 2011, a final rule title “Identification of Non-Hazardous Secondary Material That Are Solid Waste” was published in the Federal Register. See, 76 Fed. Reg. 15456. The final rule does not as much identify that which is a solid waste as it identifies materials that are not solid waste. The effect of the rule is to determine whether combustion units should be regulated under Section 129 or Section 112 of the Clean Air Act (CAA) – solid waste is regulated under Section129 and non-solid waste under Section112. See, 76 Fed. Reg. 15610.

Under current regulations, certain materials (spent, sludges, by-products, specific chemical products and scrap) are solid waste when burned for energy recovery. See, 40 C.F.R. §261.2(c)(2). Materials are not solid waste when recycled through use or reuse as ingredients, as substitute products, or returned to the original process. See, 40 C.F.R. §261(e). The preamble of the final rule expands recycling by indicating that it includes burning for energy recovery. See, 76 Fed. Reg. 15468-69.

The new rule attempts to add clarity by distinguishing “traditional fuels” from non-hazardous secondary materials that are not solid waste when burned. The definition of traditional fuel includes that which has historically been considered a fuel in the past (e.g., fossil fuels) and alternate fuels (e.g., used oils that meet 40 C.F.R §2791.11 standards). Traditional fuels are neither secondary materials nor solid waste. Alternatively, under the rule, a secondary material is “any materials that is not the primary product of a manufacturing or commercial process, and can include post-consumer materials, off-specification commercial chemical products or manufacturing chemical intermediates, post-industrial material, and scrap.” See, 76 Fed. Reg. 15550; both definitions will be codified at 40 C.F.R. §241.2 when the rule becomes effective on May 20, 2011. The rule establishes six exceptions to the definition of solid waste for non-hazardous secondary materials when used legitimately as a fuel or ingredient in a combustion unit:

  1. Those that remain with the generator and meet the specified legitimacy criteria
  2. Scrap tires managed by established collection programs
  3. Resinated wood used as fuel
  4. Used as ingredient in a combustion unit
  5. Secondary materials that have been processed into a legitimate fuel
  6. Non-hazardous determinations

The “legitimacy criteria” is a very important test intended to ferret out sham recycling. Legitimate materials are not thrown away. See, 76 Fed. Reg. 15471. Legitimate fuels must: (1) be managed as a valuable commodity, (2) not be stored for an unreasonable time, (3) have a meaningful heating value, (4) be burned for heat recovery, and (5) contain equivalent or less contaminants compared to traditional fuels burned in a given combustion unit design. See, 40 C.F.R. §241.3(d). It should be noted that the EPA implies that the concept of legitimacy is important in hazardous waste determinations. See, 76 Fed. Reg. 15463.

In conclusion, the final rule adds definition to the question of non-hazardous solid waste combustion. The rule adds a definition for traditional fuel, which is neither a solid waste nor a secondary material. Traditional fuels will be subject to CAA §112 as well as certain non-hazardous secondary materials that meet exceptions from the definition of solid waste. Secondary materials that do not meet an exception will be classified as solid waste and be subject to CAA §129.