TERU Focus Report - EPA Waste & Combustion Rules

EPA Releases Key Rulemakings that Dramatically Impact Direct Combustion

February 26, 2011 --




The US Environmental Protection Agency (EPA) has a Plan: they intend to actually enforce provisions of the Clean Air Act. To do so, they need to set quantitative standards against which industrial operations may be measured. The EPA has been working on implementation standards for years. All of that diligent effort is now “coming to fruition” in a series of inter-related regulatory actions called Rulemakings that establish both performance-based and prescriptive standards. In order to set such standards for emissions, other areas of law must also be addressed. In particular, the definitions of what is and is not a “waste” needed to be revised. Four new emissions standards established under the Clean Air act have been issued (and immediately set into a “refresh” cycle). These Rules include the area source Boilers Rule, the major source Boilers Rule, the solid waste incinerator emissions CISWI Rule and the SSI Rule for incineration of sewage sludge. These rules are based, in part, on which non-hazardous “secondary materials” or residuals from other enterprises are considered solid wastes under the federal solid waste re-definition NHSM rule. Each of the four emissions rules, along with the solid waste re-definition rule, is addressed below with the proper hyper-links to allow access to the EPA’s source documents.


Following release for review of most of these Rules in April of 2010, the EPA experienced a veritable firestorm of public comment; over 4,800 stakeholders responded. The EPA petitioned the federal court last December for more time to do another extended lap of the Public Review circuit. The court said (paraphrased), “No. Put the Rules out. You’ve got 30 days.” So the EPA has complied and the same day as the Final Rules showed up in the Federal Register, EPA initiated a “Reconsideration Process”, per all the legal protocols.


The EPA’s rulemakings are based on the idea that although there is certainly going to be a cost to Industry (which is carefully NOT assessed), the public health benefits surely will out-weight the damage to Business. At the front of this concern is the revelation that dirty industrial operations are sited where property values are lowest, and that this astoundingly coincides with where our poorest communities are trying to exist. There is a long-standing “Environmental Justice” (EJ) problem needing attention; this EJ adjustment drives much of the current Rulemaking spree. The EPA concurrently has released a Summary of EJ Impacts for this newly issued suite of Rules.


Final NHSM Rule


The EPA released the Final Rulemaking for identification of Non-Hazardous Secondary Materials (NHSM) that are solid wastes. This Resource Conservation and Recovery Act (RCRA) final rule identifies which non-hazardous secondary materials are, or are not, solid waste when burned in combustion units.


Under the rule: (1) Units that burn non-hazardous secondary materials that are solid waste under RCRA would be subject to the section 129 Clean Air Act (CAA) requirements, and (2) Units that burn non-hazardous secondary materials that are not solid waste under RCRA would be subject to the section 112 CAA requirements.


The Rulemaking could re-categorize some of California’s large-scale BioPower plants as Solid Waste Incinerators. It essentially eliminates de minimis in feedstock: if any amount of material is used as fuel that is federally designated a “Waste” under this redefinition, the facility stands the risk of being subjected to the full weight of RCRA standards and enforcement as a Solid Waste Incinerator. One of the first actions will likely be a NESHAPs Title V New Source Review (NSR).


The Final Rule has been “softened” compared to earlier versions, in general providing exceptions where feedstock can be shown to never have entered the waste stream, or where a per-case assessment shows that pre-processing has created a beneficial fuel from what was previously a waste. Exemptions are identified by the EPA where:

·         Material used as a fuel that remains within the control of the generator (whether at the site of generation or another site controlled by the generator) and meets the legitimacy criteria;

·         Scrap tires removed from vehicles and managed under established tire collection programs, and resinated wood residuals;

·         Material used as an ingredient in a manufacturing process (whether by the generator or outside the control of the generator) that meets the legitimacy criteria;

·         Material that has been sufficiently processed to produce a fuel or ingredient product that meets the legitimacy criteria; or

·         Material that has been determined through a case-by-case petition process to not have been discarded and to be indistinguishable in all relevant aspects from a fuel product.


Many detailed “Materials Characterization Papers” are provided by fuel type, detailing the classification of materials. Three categories of Biomass are addressed: (1) Agricultural residues and food scraps, (2) Animal manures and the gaseous fuels generated from them; and Forest derived biomass and Pulp and Paper Residues. Three sources of Construction and Demolition debris are presented, including potential fuels from construction, disaster debris, and vegetative over-burden generated during land-clearing.


Final Rulemakings do not become law until published in the Federal Register; a pre-publication version of this Final Rule has been issued for reference. Additional information and supportive materials are available at www.Regulations.gov: In the Keyword or ID Search box, type in the docket number EPA-HQ-RCRA-2008-0329.


New Clean Air Act Standards


Responding to a court order denying another time extension, the EPA has issued four inter-related final Rules that establish final Clean Air Act standards for boilers and certain types of incinerators.


2 Boiler MACT Rules -The Final Rules requiring Maximum Achievable Control Technologies (MACT) for Boilers separately address Major Sources and Area Sources. Section 129 of the Clean Air Act requires emissions standards for 9 pollutants from incinerators including Commercial/Industrial Solid Waste Incinerators (CISWI). The nine pollutants include: Cadmium, Carbon Monoxide, Dioxins/Furans, Hydrogen Chloride, Lead, Mercury, Oxides of Nitrogen, Particulate Matter, and Sulfur Dioxide. Large and smaller sources are treated in the same way. Section 112 of the Clean Air Act requires emissions standards for boilers and process heaters. 


Major sources emit 10 tons of any one toxic air pollutant or 25 tons of all toxic air pollutants each year.  Emissions standards based on the MACT must be set for all emitted toxic air pollutants Area sources are smaller and may be regulated based on less stringent generally available control technology (GACT).  Exception is made for certain pollutants (e.g., mercury, polycyclic organic matter), which must have MACT standards.


CISWI Rule- Separate emissions standards are set for Commercial / Industrial Solid Waste incinerators (CISWI rule). Currently, the EPA notes 88 solid waste incinerators that will be subject to the new emissions standards. The emission limits will require reductions for 85 of the 88 currently operating CISWI. The units will need to comply no later than three years after the EPA approves a state plan to implement these standards, or by February 21, 2016, whichever is earlier. However, the parallel NHSM Final Rule could re-designate BioPower facilities as Solid Waste Incinerators, if those plants use waste-sourced fuels that are not exempted. Additional details are found on the EPA’s Combustion website.


A CISWI unit is defined as any device that is used to burn solid waste at a commercial or industrial facility. Examples of CISWI units include:

·         units designed to discard solid waste;

·          energy recovery units designed to recover heat that combust solid waste; and

·          waste burning kiln that combust solid waste in the manufacture of a product.


As with each of the Rules finalized, various changes have been made since last April in response to stakeholder comments. Key among these are:

·         Further sub-categorization of the Energy Recovery Units (ERUs) designation, creating two separate sub-categories for Solid ERUs and for liquid ERUs;

·         Increased limits placed on fuel switching provisions to prevent sources from switching more frequently than every six months (to avoid bouncing between boiler and CISWI categories);

·         Removal of specifically-defined “cyclonic burn barrels” from the definition of an incinerator; and

·         Provision of a process for waiving civil penalties for emissions during truly unavoidable malfunctions.


SSI Rule - New Source Performance Standards and new emissions guidelines were also released governing Sewage Sludge Incinerators (the SSI rule). An SSI unit is an incinerator or direct combustion device used to burn dewatered sewage sludge; these are typically located at wastewater treatment facilities. The final rules cover two categories of incinerator types: multiple hearth (MH) and fluidized bed (FB).


The April 2010 version of the rules has been revised to reflect the overwhelming stakeholder response; key changes include:

·         Clarifying that the applicability of this rule applies only to sources that combust sewage sludge at wastewater treatment facilities treating domestic sewage sludge;

·         Revising the subcategories for new multiple hearths (MH) to be consistent with the subcategory for existing MH;

·         Revising the baseline emissions, costs, and impacts based on new information received. This revision resulted in a determination that the beyond-the-floor emission limits for mercury for the MH subcategory were no longer cost-effective; and

·         Revising the requirements to no longer require opacity for sources subject to parametric monitoring and annual testing.


Reconsideration Process


The day the new Rules appeared in the Federal Register, EPA Administrator Lisa Jackson formally announced initiation of a reconsideration process for all but the SSI Rule; the announcement contains detailed contact information for each EPA section responsible for the Final Rules, and examples of the highly technical issues prompting reconsideration. The announcement constitutes a pre-publication version which will be published in the Federal Register in the near future.


The Administrator’s announcement explains the Reconsideration in this way: “We recognize that certain issues of central relevance to these rules arose after the period for public comment or may have been impracticable to comment upon. Therefore, we believe that reconsideration is appropriate under section 307(d)(7)(B) of the Clean Air Act. While we have taken final action on the rules identified above, and believe that the final rules reflect reasonable approaches consistent with the requirements of the Clean Air act, some of the issues identified in the comments raise difficult technical issues that we believe may benefit from additional public involvement.”


EJ Impacts of CISWI, NHSM and Boiler Rules


Environmental Justice (EJ) concerns lie at the heart of Rulemakings finalized this month by the EPA. The EPA justifies their recent Final Rules largely by arguing that social health cost savings are greater than industrial control costs, on a national basis.


The agency has just released a comprehensive assessment of EJ-associated issues, in their “Summary of Environmental Justice Impacts for the Non-Hazardous Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source Boiler NESHAP, and the 2010 Area Source Boiler NESHAP”.


Main conclusions are:

1)     Emissions changes from affected combustion units are unlikely to lead to adverse and disproportionate impacts for low-income and minority populations;

2)     Increases in emissions associated with the diversion of non-hazardous secondary materials away from their current fuel or ingredient uses are minimal compared to the emissions reductions resulting from the rules. Thus, in net terms, the emissions impacts of the rules are unlikely to lead to adverse and disproportionate impacts for low-income and minority populations; and

3)     Low-income and minority populations located near waste management facilities (not including boilers) are disproportionately high relative to the national average.


The document brings in much of the emissions assessment data upon which the Rules are based, and thus is a critical reference for all who would engage in the agency’s “reconsideration process” on those Rulemakings.




The EPA is doing this in pieces, but planning things in grand sweeps. In case you haven’t noticed, the EPA doesn’t think too highly about Incineration, or any other use of Direct Combustion when it comes to conversion of waste and/or biomass into combined heat and power (CHP). In case you REALLY haven’t been paying attention, you may not have noticed that the EPA thinks there are, indeed, cleaner ways to accomplish the CHP goals, with newer, better technology. Push this down, that pops up: EPA favors gasification and pyrolysis over direct combustion, and with good reason. With incineration, you “render to ash”. With non-combustion gasification, if managed right, you can accomplish Recovery of our precious resources, instead of Disposal.


In their assessment of Dioxins and similar deadly toxins, the EPA uses the phrase, “incremental mitigation”. Roughly translated, that means we need to take out an old dirty one, and replace its function with a clean new one. We all see that this Uber Alles program has been working for Cars and Trucks. Should we be surprised that the EPA wants to replicate the gains in cleaning up transport emissions in our industrial Waste and Biomass management sector?


But the Devil, as we know, is in those pesky details of HOW the program is implemented. Watch closely, folks: stuff like this takes a HUGE amount of money to impose. And those dollars are not likely to all come from our cash-strapped Uncle Samuel (also known as we, the taxpayers). You mess up, you gonna pay. Big time.


If you are Combusting, think Retro-fit with non-combustion thermal conversion, and pray you have enough change left to get in front of these new regulatory hammers.



© Teru Talk by JDMT, Inc 2011. All rights reserved.

You are free to reprint and use this report as long as no changes are made to its content or references and credit is given to the author, Michael Theroux. http://www.terutalk.com

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