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EPA Revised Standards for C&I Solid Waste Incineration Units – Legal Analysis

11 February 2013

ByBen Messenger

EPA Revised Standards for C&I Solid Waste Incineration Units - Legal Analysis

The U.S. Environmental Protection Agency (EPA) has issued final changes to Clean Air Act standards for major and area source boilers and commercial/industrial solid waste incinerators (CIWSIs).

According to Washington D.C. based law firm, Bergeson & Campbell, P.C. (B&C), which specialises in representing the chemical industry, the final rule accomplishes two broad goals. It revises the Clean Air Act (CAA) emission limits for CISWIs, and it revises the definition under the Resource Conservation and Recovery Act (RCRA) of ‘nonhazardous secondary material’ (NHSM).

As to the CAA portion of the rule, the law firm explained that the EPA has revised certain emission limits under the CAA for CISWIs and other requirements for these units. The RCRA portion of the rule attempts to define clearly which nonhazardous wastes would be considered solid wastes when combusted.

According to the lawyers, the two portions of the rule work in tandem. When combusted, NHSMs that meet the definition of solid waste must be incinerated in CISWIs, while NHSMs that do not meet the definition of solid waste can be used as fuel in boilers (which are subject to less stringent standards under CAA).


The rule has been over a decade in the making. EPA first formerly declared (promulgated) standards for CISWIs in December 2000.

According to B&C, following a torturous eleven year path of litigation and rulemaking, in March 2011 the EPA promulgated final revisions to the CISWI standards, sparking a firestorm of opposition from stakeholders.

The law firm claimed that the EPA received over 50 petitions for reconsideration from industry, states, and environmental groups. Based on these petitions and EPA’s admission the March 2011 rule may have missed the mark, in May 2011 the agency postponed the effective dates of the March 2011 rule.

Then in December 2011, the EPA issued proposed revisions to the standards, which it believed reflected the additional comments and data it had received from stakeholders. The December 20, 2012, rule is EPA’s attempt to issue these revised standards in final.

The law firm explained that the controversy surrounding this rule is due in large part to its broad scope and estimated costs of compliance.

The EPA estimates that there are more than 1.5 million boilers and 106 CISWI units in the U.S. and that its March 2011 rule would impose annual costs of approximately $300 million.

However, according to B&C many industry stakeholders believed the rule would cost twice as much, if not more, and that the March 2011 standards would be virtually impossible to achieve.

Revisions to CISWI CAA Requirements

The lawyers said that the scope of the revisions continues to be broad and that the EPA defines a CISWI as:

A]ny distinct operating unit of any commercial or industrial facility that combusts, or has combusted in the preceding 6 months, any solid waste as that term is defined in 40 CFR part 241. If the operating unit burns materials other than traditional fuels as defined in §241.2 that have been discarded, and you do not keep and produce records as required by [40 C.F.R.] §60.2175(v), the operating unit is a CISWI unit. While not all CISWI units will include all of the following components, a CISWI unit includes, but is not limited to, the solid waste feed system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The CISWI unit does not include air pollution control equipment or the stack. The CISWI unit boundary starts at the solid waste hopper (if applicable) and extends through two areas: The combustion unit flue gas system, which ends immediately after the last combustion chamber or after the waste heat recovery equipment, if any; and the combustion unit bottom ash system, which ends at the truck loading station or similar equipment that transfers the ash to final disposal. The CISWI unit includes all ash handling systems connected to the bottom ash handling system.

According to the law firm the EPA believes that the revisions will ease the compliance burdens for owners and operators of CISWIs while continuing to improve protection of human health and the environment from emissions from these units. The agency estimates that the standards will avoid up to 8100 premature deaths, 5100 heart attacks, and 52,000 asthma attacks and that Americans will receive between $13 and $29 in health benefits for every dollar spent to meet the final standards.

The lawyers said that the EPA appears to have narrowed the scope of the rule and to have issued standards that likely will be more amenable to affected industries.

The EPA also extended the compliance deadlines in the final rule. Owners or operators of existing major source boilers will have until 2016 to come into compliance with the standards, while owners or operators of area source boilers subject to the rule must meet the new standards by March 21, 2014. Existing CISWIs have until 2018 to meet the revised standards.

Revisions to NHSM Regulations

B&C said that the RCRA portion of the rule attempts to define more clearly what nonhazardous wastes would be considered solid wastes when burned. This is an important distinction.

When burned, NHSMs which meet the definition of solid waste would have to be burned in CISWIs that are subject to stringent regulation under CAA Section 129. NHSMs that do not meet the definition of solid waste could be burned as fuels in boilers, which are subject to less stringent standards under CAA Section 112.

In the final rule, the law firm said that the EPA revised the standards at 40 C.F.R. Part 241, which identifies those NHSMs that are considered solid wastes when used as fuels or ingredients in CISWIs. NHSMs – defined as a secondary material that, when discarded, would not be considered a RCRA hazardous waste – that are combusted are generally considered solid waste (and thus must be burned in CISWIs), unless an EPA Regional Administrator grants a non-waste determination petition.

Despite all of the controversy surrounding this portion of the rule, the lawyers said that the EPA made slight revisions, and the bulk of those address so-called ‘legitimacy criteria.’ Under the final rule, several categories of NHSMs are not considered solid waste when combusted. These are:

  • NHSMs that are used as a fuel in a combustion unit and that remain with the control of the generator and that meet specified legitimacy criteria
  • NHSMs used as an ingredient in a combustion unit and that meet specified legitimacy criteria
  • Fuel or ingredient products that are used in a combustion unit and that are produced from the processing of discarded NHSMs
  • Scrap tires that are not discarded and that are managed under the oversight of established tire collection programs.
  • Resinated wood
  • Coal refuse that has been recovered from legacy piles and processed in the same manner as currently generated coal refuse
  • Dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials.

B&C added that the EPA also revised the definition of NHSM to ensure that materials that are traditional fuels are not considered solid waste. One of the more significant changes it made in the rule is to revise the definition of ‘clean cellulosic biomass.’

The law firm said that the EPA provides a list of clean cellulosic biomass materials that qualify as a traditional fuel (and not solid waste), described as materials that have not been altered, such that they contain contaminants at concentrations normally associated with virgin biomass materials. Specifically, the definition now reads as follows:

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 forest-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 production residues, rice milling and grain elevator operation residues); wood collected from forest fire clearance 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.

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