On A Tightrope Over Sludge: EPA Re-Revises Its Waste Rules Regarding Biomass And Other Alternative Fuels

On Dec. 2, EPA issued proposed rules elaborating on its definition of Non-Hazardous Secondary Materials (NHSM) in conjunction with revisions to its Commercial and Solid Waste Incinerator Unit (CWISW) regulations. By this proposal, EPA intends to clarify the types of alternative fuels, including biomass, that can be burned for energy recovery without the combustion unit being characterized as a solid waste incinerator and subject to more stringent emission controls. As a result, the proposal provides a significant opportunity for generators and users of alternative fuels to obtain EPA's determination that those fuels are not solid wastes and can be combusted for energy recovery in traditional boilers.

These revisions arise from a fundamental conflict between the EPA's desire to encourage the use of broader categories of fuels for energy generation and the tortuous definition of "solid waste" in the Resource Conservation and Recovery Act (RCRA). Under the Clean Air Act (CAA), any boiler using "solid waste" as fuel must be regulated as a "solid waste incinerator," thus subjecting the boiler to more stringent compliance standards than other industrial boilers. Because the EPA's regulatory definition of "solid waste" in its hazardous waste rules includes recycled materials burned for energy recovery, the EPA faced a significant quandary in how it could promote the use of nonfossil fuels like biomass.

In 2005 EPA originally proposed that an industrial boiler operated for thermal energy recovery could not be a solid waste incinerator, even if it burned material characterized as industrial or commercial waste. In NRDC v. EPA, 489 F. 3d 1250 (D.C. Cir. 2007) the U.S. Court of Appeals for the D.C. Circuit struck down this approach, holding that the EPA could not ignore the specific language of the CAA requiring facilities that burned "solid waste" to be regulated as incinerators.

After years of further discussion, the EPA issued final rules in March 2011 (76 Fed. Reg. 15465), which sought to exclude from the solid waste definition a category of Non-Hazardous Secondary Materials. EPA noted that there were a number of materials that had consistently been used for fuels (ranging from wood to coke oven gas), as well as a growing number of materials that were used as fuels due to improvements in technology and the evolving renewable energy market, including biomass and shredded tires. EPA reasoned that the former category of "traditional fuels" could not...