The U.S. Environmental Protection Agency (EPA) has issued a final rule exempting from regulation as solid wastes resinated wood, coal refuse that has been recovered from legacy piles, scrap tires, and dewatered pulp and paper sludges when those items are used as fuel in boilers or solid waste incinerators. 78 Fed. Reg. 9,111 (2/7/13).

Signed December 20, 2012, in conjunction with Clean Air Act (CAA) rules covering related heating units, the rule establishes an application process for categorical exclusion of additional materials and has revised the “contaminant legitimacy criterion” to provide more detail for comparing nonhazardous secondary materials with traditional fuels. In issuing the revised rule, EPA suggested that some recycled paper as well as wood from construction and demolition, when burned for energy recovery, may be appropriate candidates for future exclusion from the definition of solid waste.

Issued simultaneously are a series of final changes to CAA rules for commercial and industrial solid waste incineration. In addition to conforming those rules to the non-waste determinations, these rules lift an effective date extension that had been in effect since March 2011, during EPA’s reconsideration period for earlier issued rules covering those units. All aspects of the new rules are subject to challenge in court until April 8, 2013.