In its massive new industrial boiler rules (issued January 31, 2013), EPA singled out “manufacturers of motor vehicle parts and accessories” as one of the most affected industry types. On February 7, 2013, EPA issued a new rule that could significantly affect facilities with boilers. This is the highly controversial “non-hazardous secondary materials” (NHSM) rule. Boilers that use fuels that the NHSM rule defines as a “solid waste” will be subjected to rigid incinerator (“CISWI”) standards under Clean Air Act (CAA) §129, while boilers using fuels that escape the solid waste designation are regulated under CAA §112 “NESHAP” or “MACT” standards.

The great majority of industry parties consider the CAA §112 NESHAP regime far preferable to the CAA §129 CISWI regime. As the NHSM rule has evolved over the last few years, industry advocates have urged EPA to craft the rule in a manner that lets many fuels “out” of the NHSM solid waste definition. Industry advocates have met with much success in their efforts, and the new final NHSM rule provides many more “out” opportunities than the rule that EPA originally proposed.

The new NHSM rule’s processes for getting fuel material “out,” however, are quite detailed and complex. Facilities must take care to fully comply with all of the rule’s arcane requirements or risk inadvertently falling into the CISWI regime.

The new NHSM rule provides four ways a secondary material (when combusted) can escape a solid waste designation. Either: 1) it meets one of the “easy out” categories as a “traditional fuel” or a “categorically determined non-waste”; 2) it meets several “legitimacy criteria” and remains within the “control of the generator”; 3) the material does not remain within the generator’s control but undergoes a sufficient degree of “processing” before combustion and meets the legitimacy criteria; or 4) U.S. EPA approves the exemption under one of its administrative processes.