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Final Rule: Identification of Non-Hazardous Secondary Materials That Are Solid Waste

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Rule Summary

This Resource Conservation and Recovery Act (RCRA) final rule established part 241 of title 40 of the Code of Federal Regulations (CFR) and identifies which non-hazardous secondary materials (NHSMs) are, or are not, solid wastes when burned in combustion units:

  • Units that burn NHSMs that are solid waste under RCRA would be subject to the section 129 Clean Air Act (CAA) requirements, and
  • Units that burn NHSMs that are not solid waste under RCRA would be subject to the section 112 CAA requirements.

Public hearings on the proposed rule and the interrelated CAA rules were held during the comment period for the proposed rules.

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Rule History

On January 2, 2009, EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) to solicit comment on which NHSMs that are used as fuels or ingredients in combustion units are solid wastes under RCRA. This assisted the Agency in developing standards under sections 112 and 129 of the CAA.

The meaning of “solid waste” as defined under RCRA is important, because it determines whether a combustion unit is required to meet emissions standards for solid waste incineration units issued under section 129 of the CAA or emissions standards for commercial, industrial and institutional boilers issued under CAA section 112.

CAA section 129 states that the term “solid waste” shall have the meaning “established by the Administrator pursuant to [RCRA].” On June 4, 2010, EPA proposed a definition of non-hazardous solid waste that would be used to identify whether non-hazardous secondary materials burned as fuels or used as ingredients in combustion units are solid waste. EPA also proposed that non-hazardous secondary materials that have been discarded, and are therefore solid wastes, may be rendered products after they have been processed (altered chemically or physically) into a fuel or ingredient product.

On March 21, 2011, EPA promulgated the base NHSM regulations titled “Identification of Non-Hazardous Secondary Materials that are Solid Waste” (often referred to as the “NHSM final rule”). The NHSM final rule provides the standards and procedures for identifying whether NHSMs are solid waste under the RCRA when used as fuels or ingredients in combustion units.

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Additional Resources

Federal Register (FR) Notice

Final rule - March 21, 2011 supporting documents:

Information Developed for the 2010 NHSM Proposed Rule Promulgation:

Resources for the January 2, 2009 ANPRM: