Where We are on the EPA’s NHSM Rule

By William Turley, associate publisher & Editor

In the last issue of C&D World, Max Lee, Phd, from Koogler & Associates, wrote an excellent article that explained the then newly released Non Hazardous Secondary Materials (NHSM) rule from the EPA. The rule negatively affects the use of C&D wood biomass by putting an extra layer of regulation on the market. While a bit technical as to why, mostly it involves whether the fuel meets a vague legitimacy criteria outlined in the rule.

The CMRA, through its CMRA Issues & Education Fund, has received clarification on the rule to determine its effect on C&D recycling, with most of it bad because any boiler using the fuel would have to go through a “petition process” with a local EPA regional office. No program was set up for this at the time of the rule; no one knew how it would be done, and who knew if and how it would be implemented fairly and evenly. This stage of work was mostly done by Gary Sondermeyer of Bayshore Recycling representing the CMRA I&E and working in connection with the NSWMA.

We then discovered there was a coalition developed of several large associations that had the same concerns the CMRA did about the new rule. The CMRA I&E joined that coalition (See CMRA News, p. 4).

In conjunction with that large group, the CMRA was represented at three key meetings on the issue with EPA staff. Lee traveled to the EPA’s Washington D.C. headquarters to discuss the technical issues of C&D biomass and how the rule would curtail that market; in June, I meet with several top EPA officials to present our views on why the rule is wrong; and in early July, Sondermeyer went to a meeting with Robert Perciacepe, the second in command at the EPA, to support having the EPA stay the rule until it can be fixed internally, or reopened for comment and changes to allow the use of all secondary materials as fuel sources in order to reduce dependence on fossil and other fuels.

The EPA indicated it probably won’t do the stay. However, the agency now realizes its rule will negatively affect several fuels, from tires to waste oil to C&D wood, and has said that was not its intent. In the NHSM rule, there is a requirement that if a secondary material has contaminants levels below that of a “traditional fuel,” then that fuel does not have to go through the onerous petition process. As an example, C&D wood has contaminant levels well below the traditional fuel coal, except for one or two spikes in lead and chlorines, then it would not qualify for exemption from the petition process. But now the EPA is proposing a solution whereby if the secondary material fuel has total contaminant levels in total below the traditional fuel a boiler is also designed to use, then that fuel would be exempt from the petition process.

This would work for C&D biomass. But it is probably not compliant with federal rulemaking requirements, and the so-called environmental community, led by Sierra Club, would sue the EPA and get that solution stopped in its tracks.

Speaking of suing, the CMRA I&E has joined a coalition of other associations affected by the NHSM rule to retain Susan Bodine, a former EPA deputy administrator, to provide legal guidance and actions as needed on the issue.

What is next? The CMRA I&E, which is funded by donations raised mostly during its fundraiser at C&D World, will continue to monitor and take actions on this situation as it evolves. This is why recyclers donate to the fund, so the CMRA can respond to problems like this. It is also why there is a CMRA and CMRA I&E to represent the views of C&D recyclers (we are also working on the fly ash rule in recycled concrete, a whole other issue.) They are the only groups dedicated to C&D recyclers, and why your support of the organizations, through donations but also attendance at C&D World, March 25-27, 2012, in Nashville, is so important. See you then.