Identification of Non- Hazardous Secondary Materials That Are Solid Wastes EPA Proposed Rule April 30, 2010 Osman Environmental Solutions Harrisburg, PA ARIPPA Board of Directors Meeting May 3, 2010

Background Traditionally EPA has considered those units that combusted waste without heat recovery for the purpose of waste reduction to be incinerators, and those that combusted waste with heat recovery (apart from MSW units) to be boilers. Incinerators are subject to Section 129 of the Clean Air Act and Boilers are subject to Sections 111 and 112. In 2007, the DC District Court vacated and remanded EPA’s CISWI definition and ruled that the CAA required any combustion of Solid Waste be subject to Section 129 incinerator requirements.

EPA Response On April 30, 2010, EPA proposed 4 separate rules to address recent court decisions on combustion sources: NSPS and EG’s for CISWI Units Major Source Industrial Commercial and Institutional Boiler MACT Area Source Industrial Commercial and Institutional Boiler MACT Identification of Non-Hazardous Secondary Materials that are Solid Wastes The waste rule used the authority of the Solid Waste Disposal Act to remove a few materials from being considered as waste in order to avoid triggering CISWI for the combustion of these fuels.

Fossil Fuels and Their Derivatives (but not waste coal) Clean Cellulosic Biomass Materials Forest-Derived Biomass Green Wood Forest Thinnings Clean and Unadulterated Bark Sawdust Trim Tree Harvesting Residuals from Logging and Sawmill Materials Corn Stover Other Biomass Crops used Specifically for Energy Production Energy Cane Other Fast Growing Grasses Bagasse Other Crop Residues e.g., Peanut Shells Wood Collected from Forest Fire Clearance Activities Trees and Clean Wood Found in Disaster Debris Clean Biomass from Land Clearing Operations Traditional Fuels Which Are Not Solid Wastes When Burned In a Combustion Unit

Over-Riding Principles of Waste Determination To avoid being considered a waste, a secondary material must: Have never been discarded, or If having been discarded, must be processed into a legitimate non- waste product. Processing means any operations that transform discarded non-hazardous material into a new fuel or new ingredient product. Minimal operations, such as operations that result only in modifying the size of the material by shredding, do not constitute processing for purposes of this definition. Processing includes, but is not limited to, operations that remove or destroy contaminants; significantly improve the fuel characteristics of the material, e.g. sizing or drying the material in combination with other operations; chemically improve the as-fired energy content; and improve the ingredient characteristics.

Legitimacy Criteria Must Be Handled as a Valuable Commodity Must be managed in a manner consistent with the analogous fuel Must be adequately contained so as to prevent releases to the environment Must Have Meaningful Heating Value 5,000 BTU/lb satisfies the criteria Lower fuels may satisfy if the unit can cost effectively recover meaningful energy Must Contain Contaminants at Levels Comparable to Traditional Fuels All HAPs and Section 129 Pollutants (particulate matter, sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, dioxins and dibenzofurans) must have levels “comparable” to the traditional fuel. This is a fuel analysis requirement, not an emission requirement.

EPA’s Position on Legacy Waste Coal Legacy Waste Coal is a Waste Material because: 1.It has been discarded, and 2.The processing of the waste coal, including screening, blending, crushing and drying, constitutes “minimal processing” and does not meet the processing definition of the proposed regulation. EPA also suggests, but does not rule, that waste coal may fail to meet the legitimacy requirement related to contaminant levels. EPA also takes the position that K-fuel does meet the processing definition and would not be a waste if it met the legitimacy criteria. EPA also suggests that iron and steel slag may be non-wastes (as a material, not for combustion) due to the fact that they are removed by ripping and digging, followed by magnetic separation, crushing, further magnetic separation and finally sized by screening. They are then loaded and weighed in customer trucks subject to quality assurance and quality control for comparable virgin aggregate intended for the same use. EPA believes this represents adequate processing, but asks for more data before making this determination.

General EPA Approach to Waste/Combustion Issue 1.Traditional fuels, including fossil fuels and clean cellulosic biomass are not solid wastes when used in a combustion process for energy recovery. 2.Discarded materials burned for energy recovery are wastes unless they are processed to make a legitimate fuel. 3.Materials managed outside the control of the generator are wastes unless they are processed into non-waste fuel products. 4.Persons burning secondary materials which have not been discarded, that are not managed under the control of the generator (which are otherwise solid wastes) may petition EPA for a determination that the materials are not discarded. But they still must meet legitimacy criteria. 5.Secondary Materials are not solid wastes if they remain under the control of the generator and meet legitimacy criteria.

9 In addition to the primary approach discussed above, EPA is also proposing an alterative approach, which is broader in scope. In the alternative approach only the following materials would not be solid wastes: Traditional Fuels Non-hazardous secondary materials that remain within the control of the generator and meet the legitimacy requirement. Alternative Approach

10 EPA Examples of Waste and Non-Waste Waste Painted/treated wood Off-Spec Oil Whole Tires Legacy Coal Refuse CCR Sewage Sludge Chipped tires with metal Non-Waste Clean Biomass Spec-Oil Resinated wood residuals (generator control only) Pulp and Paper Sludges (generator control only) Currently generated coal refuse TDF with metals removed