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Rules proposed by the United States Environmental Protection Agency (EPA) pertaining to boiler emissions and to the definition of what is considered a “non-waste fuel” have turned into a battleground issue with several industry sectors on one side and some environmental advocacy organizations on the other.

Within its re-consideration of the Resource Conservation and Recovery Act (RCRA) and the Boiler MACT (Maximum Achievable Control Technology) standards, the EPA has turned to the topic of defining non-hazardous secondary materials (NHSM) and what can be considered “clean cellulosic biomass” or “non-waste fuels.”

For companies whose business model involves collecting, preparing or consuming discarded materials in a waste-from-energy application, it is feared that certain revisions to these rules will cause some existing business models to grind to a halt.

In December 2011, the EPA announced modifications or clarifications to some of these rules, in response to comments following the draft of the rules that had been released in March 2011. (This December version is posted at http://www.epa.gov/air quality/combustion/actions.html.)

It appears likely that 2012, like 2011, will be a year of uncertainty and actual or threatened lawsuits surrounding this issue, as two constituencies with vastly different viewpoints fight for what they want.
 

Eye on Emissions
The EPA rule on what designates clean cellulosic biomass when combusted drew comments from a wide range of industry sectors that feared the creation of a significant barrier to a large-volume scrap wood end market if the new rule excluded wood scrap or was otherwise vague.

In a December 2011 fact sheet summarizing language changes made by EPA between March 2011 and December 2011 (based on public comments received), the EPA included the following paragraph:

“Clarifying that certain materials are already included within the scope of biomass, that is considered a traditional fuel under the NHSM rule - EPA is revising several definitions that were included in the final rule. In the case of ‘clean cellulosic biomass, EPA is identifying specific materials that EPA believes are included within the current definition and would thus be considered a traditional non-waste fuel, including: agricultural derived biomass, other crop residues (including vines, orchard trees, hulls, seeds), other biomass crops used for the production of cellulosic biofuels, hogged fuel, untreated wood pallets, wood pellets, and wood debris from urban areas.”

Speaking to Construction & Demolition Recycling (www.CDRecycler.com) magazine in September 2011, before that language change had been proposed by the EPA, recycler Jason Haus of DemCon, Shakopee, Minn., voiced the concerns of those involved in the wood scrap-to-energy supply chain.

“Wood is the largest product we recover out of the waste stream,” said Jason Haus. “If they come down hard on that rule, all processors are going to have to either not recover that wood anymore (because it doesn’t fit under EPA’s acceptable parameters), or we have to go through their process and testing procedures to have it accepted as an acceptable fuel. It’s going to be a pretty cumbersome process, I think,” remarked Haus, who in addition to being co-owner of a recycling company is a board or committee member of both the Construction Materials Recycling Association (CMRA) and the National Demolition Association (NDA).

The comment period on the RCRA final rule, as well as EPA’s Boiler MACT (Maximum Achievable Control Technology) rule, sparked a vigorous reaction from an alliance of industry groups who touted what they viewed as their important role in diverting materials such as wood, tires or mixed plastic from the landfill and instead extracting energy value from them.

These allied industry groups found support on Capitol Hill, where in late August 2011, House Majority Leader Eric Cantor (R-Va.), included the Boiler MACT rule among his “Top 10 Job-Destroying Regulations” in a memo sent to colleagues.

“People need to understand that there has been a lot of investment in this, and it’s one of the largest parts of the [waste] stream,” says Haus.
 

Upon Further Review
After the vigorous debate (and while a judicial review process was underway in a federal district court), on Dec. 23, 2111, the Federal Registry published the EPA’s reconsideration of its final rules pertaining to “National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers” and for “Major Sources” in the “Industrial, Commercial, and Institutional Boilers and Process Heaters” category.

“This proposed rule regulates industrial, commercial, and institutional boilers and process heaters located at major sources of hazardous air pollutants (HAP),” states the 75-page article summarizing the “major sources” rule modifications. “Waste heat boilers and process heaters and boilers and process heaters that combust solid waste, except for specific exceptions to the definition of a solid waste incineration unit outlined in section 129(g)(1), are not subject to this proposed rule,” the Federal Registry notice also states on page 3 of the 75-page notification.

HAP Section 129(g)(1) has itself caused uncertainty within the energy-from-waste supply chain, as recyclers and boiler operators have tried to determine how EPA compliance and enforcement officers will interpret this section. (The text of this regulation can be found by searching the phrase Section 129(g)(1) on the www.federalregister.com website.)

The major discarded materials sub-categories identified by the rule under the heading “Which Non-Hazardous Secondary Materials Are or Are Not Solid Wastes When Used in a Combustion Unit,” include sub-categories titled: Materials Within the Control of the Generator; Scrap Tires; Resinated Wood; Ingredients; Discards; Non-Waste Determination.

In a fact sheet released by the EPA to accompany the new rules, the agency listed the following as the first of several “key changes based on new information and public comment: The creation of a solid fuel category instead of separate biomass and coal subcategories for particulate matter, mercury, and hydrogen chloride.”

Combined, the December rules modifications point to some acceptance of the continued use of discarded materials for energy creation aspects.

But with the likelihood of legal challenges to the December modifications and the unpredictable twists and turns that regulations can take, 2012 seems poised to be another year of uncertainty from a regulatory viewpoint for many operators in the energy-from-waste sector.

The author is editorial director of Renewable Energy from Waste and can be contacted at [email protected].