The U.S. Environmental Protection Agency (EPA) creates many questions in its new rule, “The Identification of Non-Hazardous Secondary Materials that are Solid Waste” (to be codified at 40 CFR 241). This is a very recent rule with a very convoluted legal history. But in summary, it’s a rule to follow to make sure wood-derived fuel is just that—a fuel, and not a solid waste. As we go through the critical points of the rule to explain why this matters, keep in mind this rule is in the proverbial flux of litigation and potential revision. Nevertheless, answers are needed for how and when the rule will affect C&D operations.

C&D wood-derived fuel (C&Dwdf) has all of the characteristics of a traditional biomass fuel, but is a resource that would be wasted if not for C&D recyclers. It’s a resource that does not need to be grown or mined. With a little bit of processing, it can and does replace cultivated biomass crops and fossil fuels. C&Dwdf generates local tax dollars, creates jobs and provides greater independence for our country’s need for energy from the whims of foreign countries that control so much of the fuels we use every day. C&Dwdf reduces greenhouse gas emissions compared to fossil fuels, and reduces impacts to our landfills and the environment.

It’s important for C&D recyclers to continue growing and maximizing opportunities to provide our country and the world with wood-derived fuel. We think this new EPA rule lays down a path to follow that ensures C&D recyclers will continue to generate and provide C&Dwdf to energize our country’s economy and help the environment.

How did we get here?
The federal Clean Air Act (CAA) set in motion a number of regulations to limit air pollution from large combustion operations. Section 129 of the CAA establishes the framework for the regulation of new and existing “solid waste incineration units,” defined as “any unit combusting any solid waste material from commercial or industrial establishments or the general public.” Section 129 requires the EPA to set air pollution emission standards for nine different air pollutants. To set these standards, the EPA established categories under Section 129 for municipal waste combustors, commercial and industrial solid waste incineration units (CISWI) and sewage sludge incineration units. The EPA regulated other categories, including industrial boilers, utility boilers and cement kilns, under two separate sections of the CAA, Section 111, for criteria pollutants (known as New Source Performance Standards or NSPS) and under Section 112 for hazardous air pollutants (known as National Emissions Standards for Hazardous Air Pollutants or NESHAP, or Maximum Achievable Control Technology or MACT).

Historically, the EPA regulated boilers and kilns combusting solid waste for energy recovery purposes under Sections 111 (NSPS) and 112 (MACT). The EPA’s approach, however, was challenged in court, and the EPA reconsidered its position. The court stated a unit combusting “any solid waste material at all,” even for energy recovery purposes, must be regulated under Section 129.

The key issue of this legal debate then became what was meant by “solid waste” under Section 129. Section 129 simply states the term “solid waste” shall have the meaning established by the EPA pursuant to the Resource Conservation and Recovery Act (RCRA). To answer the question of what is a solid waste, the EPA issued on March 21, 2011, a new rule titled, “The Identification of Non-Hazardous Secondary Materials that are Solid Waste,” or NHSM. This rule is designed to prevent “sham” recycling where solid waste is disguised as a fuel and the real intent is to destroy the waste. Applying this new definition, if a boiler or kiln combusts material considered a “solid waste,” even if for energy recovery purposes, the boiler or kiln will be regulated under Section 129 (which is also called the new CISWI-Commercial and Industrial Solid Waste Incineration rule) rather than 111 and 112 (Boiler MACT and Cement MACT rules). So if a boiler or kiln burns solid waste, then its air pollution emissions will be restricted according to the very stringent rule of the new CISWI.

Boiler operator/owners are very interested to ensure the fuel they burn is not a solid waste because they do not want to be subject to air pollution emissions under the new CISWI.

How stringent is the new CISWI and why should I care?
While it may not seem significant to be regulated under CAA Section 129 (i.e., the new CISWI) rather than Sections 111 and 112 (NSPS and MACT), there is a big difference. While the same pollutants may be regulated, the EPA tends to establish more stringent emission limits under Section 129, often requiring more air pollution control technology as well as more air emissions monitoring and testing. For example, under the new EPA standards, a new industrial boiler firing waste biomass rather than non-waste biomass to produce energy would be subject to very different standards. The boiler burning non-waste biomass only needs to meet a PM limit whereas the same unit burning waste biomass would need to meet all of the limits listed in Table 1. Furthermore, existing boilers versus a new boiler burning non-waste biomass would not even have a limit for PM emissions under MACT.

The impact of this new rule on the C&Dwdf market is tremendous. If a company’s C&Dwdf is defined as solid waste under the new NHSM rule, the value of the C&Dwdf changes from a fuel commodity to a common waste and most boiler/kiln operators will not want to burn it. The cost to comply with CISWI will be financially impossible for many boiler operations, forcing them to shutdown or change to a non-waste fuel. If the fuel material is determined to be indeed, a fuel, boiler operators must still comply with other regulations for air pollution. However, the boiler and cement MACT compliance is generally less stringent than CISWI.

Combustion unit owner/operators that may become subject to the new CISWI rule are keeping a very close eye on the developments of the NHSM rule. The new NHSM rule applies to fuels and ingredients used in combustion units. The focus of this article is on C&Dwdf material as a fuel. The NHSM rule (40 CFR 241.3) provides three options of determining a material as a fuel:
Option 1) A material defined as “traditional” fuel,
Option 2) A discarded material that is processed and meets the “legitimacy” criteria, and
Option 3) A material that is petitioned to the EPA regional administrator.

Who’s responsible?
This determination and documentation are the responsibility of the combustion unit owner/operator and not the C&D recycler. But, the C&D recycler needs to work with the owner/operator using the fuel as means to build trust and partnership. The facility burning the C&Dwdf must rely on the C&D recycler for certain aspects of the documentation needed in their files. The owner/operator will need assistance with the determination process and to document the information needed under the EPA’s rules to confirm the material is a fuel and not a waste.

For example, the EPA’s new CISWI rule requires a facility to maintain records to demonstrate, through a self-certification, the NHSM being used does not constitute a solid waste based on the sufficiency of the material processing and the legitimate use of the material as a fuel. Alternatively, if the EPA grants a petition for a non-waste determination, a copy of the determination must be kept by the facility using the material. Similarly, the boiler MACT requires a facility’s responsible official to certify that no solid wastes were used in the boiler. While the burden is on the facility using the material to adequately document for the EPA’s purposes that the non-waste criteria are met, it is likely a facility purchasing a manufactured fuel would want similar certification from the supplier, enforceable through contract terms, to ensure the material qualifies as non-waste. The EPA has no paperwork prepared for this yet.

When does the rule take effect?
The effective date of the new NHSM rule is May 20, 2011, although the impact for certain facilities may be delayed for a few years. Any new boiler used for energy recovery constructed after June 4, 2010, would be subject to the boiler MACT or the new CISWI depending on its fuel choice, so it would need to know beginning May 20, 2011, whether the material it is using is considered solid waste or not. Any C&Dwdf suppliers for new boilers will need to assess the implications of the new definition immediately. On the other hand, suppliers for older facilities will have more time. Generally, existing boilers used for energy recovery and kilns constructed prior to June 4, 2010, would not be subject to the new CISWI until their state adopts the federal rule, the state establishes a “state plan,” and the EPA approves the plan. The compliance deadline may be no later than March 21, 2016, although the EPA has encouraged earlier deadlines, so you should monitor your state’s rules to know which date for sure.

Option 1) A “traditional” fuel?
The NHSM rule defines traditional fuel to specifically include “clean cellulosic biomass.”

Clean cellulosic biomass means those residuals akin to traditional cellulosic biomass such as forest derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill materials), corn stover and other biomass crops used specifically for energy production (e.g., energy cane, other fast growing grasses), bagasse and 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, 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. (40 CFR 241.2)

The EPA provides a possible avenue for C&D wood to meet option 1—to be defined as a ‘traditional” fuel. While the EPA clearly defines clean cellulosic biomass to include clean C&D wood, the EPA gives very little guidance and no restrictive definition as to what is meant by “clean.” You may think this absurd and you may have a point. But, the EPA appears to purposely avoid providing black and white limitations or boundaries for what is “clean” to allow a reasonable level of determination by generators and users of C&D wood.

What little guidance the EPA does provide on the definition of “clean” helps to make a few conclusions. Clean C&D wood knowingly originates from a separated source of non-treated and non-painted wood material, such as a stockpile of wood pallets, should be considered clean C&D wood.

However, this situation of collecting material from a known, separated source is rare. Most of the time, the C&D recycler collects wood materials from a broad range of sources that contain other materials. So from a practical perspective, it will be more difficult for a C&D recycler to know with certainty the C&Dwdf is as clean as virgin wood.

The EPA also puts forth the following statement:
…biomass from land clearing operations, and clean construction and demolition wood. ‘‘Clean’’ cellulosic biomass is cellulosic biomass that does not contain contaminants at concentrations not normally associated with virgin biomass materials. (76 Fed. Reg. 15478)
It is clear from the above statements and the EPA’s definition of “clean cellulosic biomass” that the EPA intends for “clean C&D wood” to have contaminant concentrations similar to concentrations normally associated with virgin biomass materials. This contaminant issue is a cornerstone issue to defining a material to not be a solid waste.

As an example, C&Dwdf generated from only non-painted and non-treated wood that is virtually identical to virgin wood would be considered clean cellulosic biomass and could be used as a traditional fuel under option 1. If the C&Dwdf contains, for example, treated and painted wood with contaminants such as chromium, copper, arsenic and lead at levels higher than in virgin wood (See section: which contaminants to compare) then the C&Dwdf would not be considered “clean” or traditional, and option 1 would not be available. Option 2, however, would still potentially allow the material to be used as a fuel.

Given the ambiguity of the EPA to clearly define “clean” C&D wood, we caution option 1 has the potential for controversy and is the more difficult route to use for determination by the owner/operator of the combustion unit than option 2. The documentation needed to confirm that C&Dwdf to be determined a fuel is far more practical and documentable under option 2.

Option 2) Can C&Dwdf be defined as processed and meet “legitimacy” criteria?
Option 2 should apply well to C&D wood. The option requires the C&Dwdf be “sufficiently processed” and meet a list of criteria, called the “legitimacy” criteria. The title “legitimacy” comes from the concept that use of the fuel is legitimate and not sham recycling. NHSM meeting this test is considered reclaimed, resulting in a “new” product that has not been discarded, and therefore not a solid waste.

What does “sufficiently process” mean?
The first part of the option 2 test is whether the NHSM has been “sufficiently processed.” The rule defines processing to mean operations that “transform” a NHSM into a legitimate fuel, including but not limited to (a) operations that remove or destroy contaminants, (b) operations that significantly improve the fuel characteristics of the material such as sizing or drying the material in combination with other operations, and (c) operations that chemically improve the as-fired energy content. Essentially, the NHSM (e.g., C&D wood that does not meet the definition of clean cellulosic biomass) is used as a raw material to manufacture a fuel. The EPA specifically stated “minimal” operations that result only in changing the size of the material such as through shredding or chipping would not constitute sufficient processing for purposes of this rule. The properties of the new product created through the necessary manufacturing process must provide the end user with assurances that the new product (i.e, the manufactured fuel, an EPA term) will consistently satisfy the legitimacy criteria. One example of sufficient processing for biomass, including C&D materials, is gasification where a chemical production process converts the carbonaceous material into a synthesis gas that could be used for energy production or other chemical manufacturing processes. The manufactured synthesis gas is a new fuel product. C&D materials processed into fuel pellets for easy transportation and used as a fuel would also be considered a new product.

For C&Dwdf—typically the material is sorted for removal of unwanted materials, such as metals, and the material is shredded to size. If this is the case, the C&D operator should feel comfortable to document that the material has been “processed” as defined in the NHSM rule. The EPA gave a similar example of sufficient processing for scrap tires where the tires are shredded and the steel belt material is removed.  

What are the “legitimacy criteria”?
The legitimacy criteria follow a logic chart provided by the EPA. If the material is processed there are three criteria that need to be addressed to determine whether the material is a legitimate fuel. The material must be managed as a valuable commodity, have significant heating value, and have comparable levels of contaminants as fuels the combustion unit was designed to burn. For C&Dwdf the most critical of these three criteria is ensuring the contaminant levels are comparable.

Managed as Valuable Commodity—From the time a NHSM is processed to generate a fuel until the time it is combusted, it must be managed as a valuable product and stored within a reasonable time frame. If the manufactured fuel is similar to a traditional fuel, it should be managed in a similar manner. If there is no analogous traditional fuel because of different physical or chemical properties so that it would be inappropriate to manage them in the same way, the manufactured fuel would need to be “contained” to prevent release or adverse impacts to human health and to the environment. The CMRA reported to the EPA that the value of C&Dwdf is approximately $25 to $30/ton, although that figure varies across the country. Certainly once a C&D operation goes to the trouble of processing the biomass to effectively manufacture a fuel product, it will be managed like a valuable commodity, and sold to the user just like a traditional fuel. As well, the CMRA has developed C&Dwdf specifications to provide categorization of the fuel which increases the marketability and valuation of C&Dwdf transactions.

Significant Heating Value as a Fuel—The manufactured fuel must be used to recover energy and not merely combusted to destroy the material. The EPA generally considers a manufactured fuel with an energy value greater than 5,000 Btu/lb (as fired) to have a meaningful heating value. For manufactured fuels with a lower energy content, a company may demonstrate to the EPA the heating value is meaningful in that particular situation, such as where use of the manufactured fuel lowers the facility’s fuel costs that it would otherwise incur. Another example is where a utility boiler using a manufactured fuel with a lower heating value is able to produce electricity for a profit. The EPA simply wants to avoid operations where use of a manufactured fuel is really being done as a means of disposing of the material. C&Dwdf should easily meet this requirement since its heating value is rated between 7,000 to 8,200 Btu/lb.

Comparable Contaminant Levels—For C&Dwdf, this criterion is the most important. While the owner/operator of the combustion unit is responsible for this determination, the C&D recycler providing C&Dwdf can assist in this determination. We should first review the criterion before discussing ways the C&D recycler can assist. The C&Dwdf contaminant concentrations must be at levels comparable to or lower than those in traditional fuel products the combustion unit is designed to burn.

The EPA criterion:
The non-hazardous secondary material must contain contaminants at levels comparable in concentration to or lower than those in traditional fuels which the combustion unit is designed to burn. Such comparison is to be based on a direct comparison of the contaminant levels in the nonhazardous secondary material to the traditional fuel itself. (40 CFR 241.3(d)(1)(iii))

Again, the EPA wanted to ensure the manufactured fuel is not being combusted in whole or in part for the purpose of disposing of unwanted materials—sham recycling.

There are three specific and critical words or phrases in criterion that need to be discussed.
A) Contaminants
B) Comparable
C) Combustion unit is designed to burn

Contaminants
EPA defines “contaminants” to mean any contaminant that results in the emission of the 188 hazardous air pollutants listed under CAA Section 112 or the nine pollutants regulated under CAA Section 129.

Contaminants means any constituent in non-hazardous secondary materials that will result in emissions of the air pollutants identified in Clean Air Act section 112(b) or the nine pollutants listed under Clean Air Act section 129(a)(4)) when such non-hazardous secondary materials are burned as a fuel or used as an ingredient, including those constituents that could generate products of incomplete combustion. (40 CFR 241.2)

Comparable
The contaminant concentrations of the manufactured fuel would be compared to any traditional fuel that can be or is burned in the particular type of boiler. The EPA states:

“We [EPA] are not defining comparable to mean ‘‘equivalent to or lower than’’ or ‘‘no higher than’’ the level of the contaminant in the traditional fuel. Rather, EPA is generally defining ‘‘comparable to or lower than’’ to mean contaminants can be present in nonhazardous secondary materials within a small acceptable range, or at lower levels, relative to the contaminants found in the traditional fuels.” (76 Fed. Reg. 15481)

The EPA purposefully does not define “small acceptable range.” This range remains undefined. C&Dwdf can be compared to
traditional fuels with knowledge that a particular contaminant concentration could be above that of the traditional fuel by some “small” amount.

Combustion unit design
The traditional fuels that a combustion unit is designed to burn are not limited to just the fuels typically burned. Most boiler operators use only a few traditional fuels for reasons more related to cost than the design of the combustion unit. The combustion unit design should be reviewed to determine all the possible fuels that the designer of the unit considered. For example, though a boiler operator has only fired coal and No. 6 oil in a boiler, the boiler manufacturer could have designed the boiler to use, all grades of oil, petroleum coke and wood. Therefore, the boiler owner/operator needs to first carefully review all types of traditional fuels the unit is designed to burn. Once the owner/operator determines all the traditional fuels can burn, the next step is to consider which contaminants need to be reviewed. See Table 2 for a complete list of all traditional fuels.

Which contaminants to compare?
The contaminants compared, as discussed above, need to be only the contaminants in the processed fuel that result in emissions of the 188 HAPs or the nine pollutants under Section 129. The EPA requires a “direct comparison of the contaminant levels in the NHSM to the traditional fuel itself,” in an effort to ensure there is no resultant increase in air emission levels associated with the use of NHSM as fuels.  

“We [EPA] also believe requiring non-hazardous secondary material have contaminants at concentrations that are comparable to or lower than traditional fuels would ensure that the burning of any non-hazardous secondary material in combustion units will not result in increased releases to the environment that could impact the health and environment of the local community.” (76 Fed. Reg. 15466)

To determine the NHSM contaminant levels for use in the comparison, the owner/operator should determine if and how often the C&Dwdf should be sampled and analyzed. To date, the EPA has given no concise guidance to owners/operators to assess which data to be used for comparison. There is a large amount of data available for contaminants in C&Dwdf and traditional fuels such that actual sampling and analyses of C&Dwdf should not be needed. As a conservative measure, we offer a possible sampling and analysis process to be used for the comparison.  

A possible sampling procedure for the C&D recycler could be to sample their stockpile of processed C&Dwdf semi-annually followed by analysis of the sample (typical analysis turnaround time is three to five days; faster for additional cost). Cost of analysis depends on the contaminants selected to be analyzed. The contaminants to be analyzed could be made through agreements with the C&Dwdf users. Analytical costs for the suggested compounds below is around $600. The timing of the analysis is critical because if the results show contaminants above levels comparable to traditional fuels, then the C&D recycler could review its source materials and document changes to their process to establish corrective actions (e.g., retrain sorters to remove painted wood). The C&D recycler would not send the batch of sampled C&Dwdf until the results are confirmed with the owner/operator to be comparable. If needed, the C&D recycler would implement corrective actions and re-sample and analyze. The C&D recycler could repeat this process until the contaminants are comparable. The payment and responsibility of such sampling and analysis could be part of contract between the parties. Shipments delivered after the analysis is completed could include a copy of the analysis to the C&Dwdf user. The analysis methods should performed by NELAC-certified laboratories (National Environmental Laboratory Accreditation Conference).    

For the comparison, the contaminant listing below includes possible contaminants in a traditional boiler fuel that could result in air emissions of the listed pollutants. This listing is a suggested list only; each facility-specific list should be determined by the owner/operator.

Proximate/Ultimate Analysis
Chlorine    Sulfur
Heat content    Ash content    Fluorine

EPA Method 6061b
Antimony    Arsenic
Beryllium    Cadmium
Chromium    Lead    
Mercury   

Where are data on traditional fuels?
The contaminant levels, as discussed above, need to be compared in the C&Dwdf to contaminant levels for all of the traditional fuels that a unit is designed to burn. To reiterate, it is critical to understand that the comparison should include all the fuels the unit could burn under its design—not necessarily what it is currently capable of burning or is burning. Units designed to burn coal are also typically designed and capable of burning other similar solid fuels like petroleum coke. And even when considering coal, the range of coal available to a unit is often unlimited. Some owner/operators may obtain coal from within the U.S. or from overseas. The broad range of all possible coals and other potential fuels should be considered in obtaining data on the contaminants. There are many sources of data on coal contaminants. The EPA provided some data sets of coal in the preamble of the NHSM rule. And there are databases available of coal contaminants, such as the USGS (http://energy.er.usgs.gov/products/databases/CoalQual/index.htm).

Given the list of traditional fuels above is long and could include other fuels that meet the definition of a traditional fuel, it is imperative the owner/operator first determine the list of traditional fuels to be reviewed based on the unit’s design and then search for all possible data on the levels of contaminants in those traditional fuels.

Option 3) Why petition the EPA?
For NHSM not meeting the first two options, the EPA has established a third option which is an administrative process for seeking a formal determination that a NHSM used as a fuel in a combustion unit is not discarded and is not a solid waste. A facility interested in using a NHSM that would otherwise be considered a solid waste may petition the EPA regional administrator. States or private entities may also submit petitions on behalf of others, including for example, a whole class of users of a specific NHSM within a state. The applicant must demonstrate that the NHSM has not been discarded (meaning not abandoned, disposed of, or thrown away) even though the material might have been transferred from the original generator to a third party before being used as a fuel.

In deciding whether to grant or deny an application, the EPA must consider the following five criteria:

• Whether market participants treat the NHSM as a fuel rather than a waste;
• Whether the chemical and physical identity of the NHSM is comparable to commercial fuels;
• Whether the NHSM will be used within a reasonable time frame given the state of the market;
• Whether the constituents in the NHSM that are released to the air, water, or land (from the point of generation to the point of combustion) are at levels comparable to what would otherwise be released from traditional fuels; and
• Any other relevant factors.

The EPA has no deadline within which to make a decision on petitions that are submitted. Once the EPA makes its initial decision, it will publish a notice in a local newspaper (or issue a radio broadcast) in the facility’s area as well as on the EPA’s website with an opportunity to provide comments prior to its final decision. The EPA may also hold public hearings if requested. The EPA will maintain the authority to make these decisions, without delegating that authority to the states. The EPA recognizes, however, final decisions should be made prior to issuance of any related state air permits. The EPA plans to make its decisions available to the public through an online database, which should help support national consistency and minimize redundant efforts.

What is likely to happen to the NHSM rule?
The EPA has no current actions proposed to modify the NHSM rule. However, the EPA is reconsidering the changes to new CISWI rules and the new boiler MACT rules, which were all issued on the same day. Changes to these rules are not likely to impact the NHSM rule, although it could impact the degree to which facilities attempt to avoid applicability of the CISWI rule, for example. Also, the many open-ended issues in the NHSM rule are in hot debate not only at the federal level but among the state agencies that are supposed to implement the CISWI and MACT rules based on the NHSM rule and new definition. Our hearts go out to them to better define such issues as “what is comparable,” “small acceptable range,” “de minimis,” and “clean.” So keep alert for the next stage in this on-going saga from EPA.

Max Lee, Ph.d., and PE, is principal engineer and president of Koogler and Associates, Inc., Gainesville, Fla. He can be reached at 352-
377-5822; This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Angela Morrison is an attorney with Hopping Green & Sams, Tallahassee, Fla., and can be reached at 850-425-2258; This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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