EPA Working on Proposed Rule to Expand Categorical Exclusions for Waste Fuels

By Anthony Adragna  


The Environmental Protection Agency confirmed July 15 it has begun work on a proposed rule that would expand the types of materials regulated as fuels rather than as solid wastes when burned in boilers or solid waste incinerators.

According to the agency, the proposed rule will be issued in December and has been under development since late April. EPA declined to provide additional details on the rulemaking process.

The new proposal has been long anticipated since the agency promulgated the nonhazardous secondary materials rule under the Resource Conservation and Recovery Act in the Feb. 7 Federal Register (78 Fed. Reg. 9112 ; 40 C.F.R. pt. 241).

In a red-line version of the rule that showed changes made during the regulatory review process of the White House Office of Management and Budget, the rule text was altered to identify other “good candidates” for categorical exclusions for regulation as fuels rather than solid wastes. Those “recycling residual” materials included items such as old corrugated cardboard rejects, construction and demolition wood, and creosote-treated railroad ties (28 DER A-3, 2/11/13).

Solid wastes are regulated more strictly under Section 129 of the Clean Air Act, while fuels are subject to regulations under Section 112.

In the rule text, EPA said it “expect[s] to propose categorical listings in 40 C.F.R. 241.4(a) in the near future” for old corrugated cardboard rejects and construction and demolition wood.

Lisa Jackson, former EPA administrator, signed the nonhazardous secondary materials rule in late December 2012. The rule specifically excluded resinated wood, coal refuse that has been recovered from legacy piles, scrap tires that are not discarded and are managed by established tire collection programs, and dewatered pulp and paper sludges from being regulated as solid wastes (246 DER A-29, 12/26/12).

Comfort Letters in Interim

EPA has issued nearly 20 comfort letters in the past two years to affirm its intent to regulate certain materials as fuels rather than as solid wastes under the agency's nonhazardous secondary materials rule to give companies regulatory certainty as it prepares the proposed rule with categorical exclusions.

The agency most recently clarified that a composite material called an “alternative to coal” can be treated as a fuel rather than a solid waste when used in certain kilns, incinerators, and boilers (93 DER A-14, 5/14/13).

Environmental and industry groups filed petitions for review of the nonhazardous secondary materials rule with the U.S. Court of Appeals for the District of Columbia Circuit in early May (91 DER A-41, 5/10/13).


Materials on rulemaking on categorical exclusions for waste fuels are available at http://yosemite.epa.gov/opei/RuleGate.nsf/byRIN/2050-AG74#1.