Materials Management Section

1. Materials Management Section M. Gavin Adams, Chief Materials Management Section ADEM Land Division Solid Waste Management Impacts Proposed 112/129 MACT Rules A&WMA – Southern Section Annual Meeting & Technical Conference Renaissance Riverview Plaza Hotel– Mobile, Alabama August 3 – 6, 2010 adem.alabama.gov

2. Materials Management Section Presentation Details • Brief Review of History – How we got here • CAA and the Court • CAA and (RCRA) Solid Waste Inter-relationship • Combustion of Non-Hazardous Secondary Materials (NHSM) • Advance Notice of Potential Rulemaking (ANPRM) • Revisions from ANPRM to Final - Alternative Approach • Ability to Petition • Standard of Processing for NHSM’s • ADEM Comments and SW Impacts (TDF) adem.alabama.gov

3. Brief History • 1990- Section 129 of the CAA was specifically added to address emissions from solid waste combustion. • In determining which emissions standards apply, when burning NHSM, the term “solid waste” shall have meaning established by Administrator pursuant to RCRA. • The CISWI definitions rule issued Sept. 2005, excluded energy recovery units from definition of SW incinerators, making them subject to section 112 instead of 129. adem.alabama.gov

4. Rationale for Vacatur • Partially based upon previous court challenges, NRDC challenged this rule in DC Circuit Court. The Court vacated the rule, stating that the statute required any unit that combusts “any solid waste material at all” to be classified as a solid waste incineration unit. • The Court also vacated the Boiler MACT Rule in the same decision. • So how are these decisions affecting the CAA rules relevant to RCRA (SW)? adem.alabama.gov

5. CAA and RCRA • In response to vacatur and remand of CISWI and Boiler MACT, EPA must now establish under RCRA, which NHSM’s are solid waste, and will accomplish that through a revised definition of solid waste. • If a NHSM is determined to be a solid waste by definition, the unit combusting the material is a solid waste incineration unit, regardless of the combustion device (129). • If the NHSM is not a solid waste by definition, a unit combusting that material must be regulated pursuant to 112. adem.alabama.gov

6. EPA Proposal • NHSM must be determined to be, or not to be, a solid waste to determine CAA applicability. • EPA is proposing a definition of solid waste to be used to identify whether NHSM used as fuels or as ingredients in combustion are solid waste. • Current definition from RCRA: • “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities. adem.alabama.gov

7. ANPRM January 2009 • The Advanced Notice of Potential Rulemaking (ANPRM) relating to the definition of solid waste was issued in January 2009. • The ANPRM proposed the following not be solid wastes: • NHSM that are under the control of the generator and that meet Legitimacy Criteria for fuel use. • NHSM meeting Legitimacy Criteria and utilized as ingredients in a manufacturing process. • Discarded NHSM that meet Legitimacy Criteria and are “sufficiently processed”. • NHSM not in control of the generator granted a “non-solid waste determination” following petition to the EPA Regional Administrator. adem.alabama.gov

8. Legitimacy Criteria • To be considered legitimate, NHSM must: • Be handled as a valuable commodity • Have meaningful heating value and be used as a fuel in a combustion unit that recovers energy, and; • Contain contaminants at levels comparable to or lower than those in traditional fuels. adem.alabama.gov

9. “Sufficiently Processed” • ANPRM stated that if a NHSM is processed into a legitimate fuel or ingredient product, then the processed material would not be a discarded material. The ANPRM specifically mentioned Tire Derived Fuel (TDF) as an example. However, what exact level of processing would be required to yield TDF was not clear. adem.alabama.gov

10. “Control of the Generator” • The ANPRM proposed that NHSM in combustion must remain in control of the generator to be regulated under 112. • On-site uses by generator, and materials managed without being discarded would comply. • NHSM combusted outside the control of the generator would not be solid waste if processed into a legitimate non-waste fuel OR granted non-waste determination pursuant to the petition process. adem.alabama.gov

11. Control of the Generator • Specifically stated as being considered not discarded (control of the generator) were scrap tires collected at tire dealers and transferred to a 3rd party, provided they were managed pursuant to state tire programs. adem.alabama.gov

12. Petition Process Would provide for administrative process for a formal non-waste determination for a specific NHSM application, certifying non-discard status, value, comparative emissions and that the material is not a solid waste. • Regional EPA Administrator would evaluate and issue draft notice approving/denying. • Determination based on discard, legitimacy and the following: • Market participants handle as fuel vs. waste • Comparable chemical and physical identity • To be utilized in a reasonable timeframe, based on market conditions • Constituent releases to air, land, water from generation to end-use is comparable to traditional fuels • Other relevant factors adem.alabama.gov

13. Differences in Notice from ANPRM • In the interim between ANPRM and June 4, 2010 Federal Register Notice, several changes were made to the proposal, some vastly different and greatly impacting use of some NHSM. • Again, focusing on scrap tires and their use as fuel as a specific example, the revised proposal greatly affects that use. adem.alabama.gov

14. Differences in Notice from ANPRM adem.alabama.gov

15. Differences in Notice from ANPRM In Summary, in the ANPRM, whole scrap tires, collected in Alabama under the state scrap tire regulatory program would either not be a solid waste or could be petitioned to be excluded and thus used as fuel under 112. Discarded tires (illegal stockpiles) sufficiently processed would not be solid waste. With the June 4 Notice, whole tires under regulatory program still would be solid waste since they would be considered discarded. Shredded tires as TDF would be solid waste unless processed with wire removed to ASTM Standard 6700-01. There would remain a petition process to the EPA Regional Administrator. adem.alabama.gov

16. Alternative Approach • If the June 4th Notice was not an abrupt enough departure from the ANPRM, it also included an “Alternative Approach.” • The Alternative Approach went further in requiring NHSM to not only remain in control of generator, meet legitimacy criteria and be highly processed, but removed the ability to petition for exclusion. • Absolutely no consideration would be given for materials that do not completely meet the above conditions even when providing better fuel value than traditional fuels and also resulting in lower emissions. adem.alabama.gov

17. What is the Concern for SW? • Other than potential differing emissions requirements, units combusting NHSM that are determined to be solid waste face two distinct challenges. • First, facilities who have invested in feed systems, controls and other capital intensive systems to allow for the combustion of NHSM, now find that they are to be labeled as “Solid Waste Incinerators” for the same activity they have been doing for years or decades. • Secondly, 129 contains specific requirements including operator training, pre-construction site assessments and monitoring not required under 112 ($$$). • The question is how will the proposed rule affect the future use of NHSM and current materials management programs. adem.alabama.gov

18. What is the Concern for SW? • The ANPRM did not consider whole tires used as TDF and collected pursuant to state tire regulatory programs as solid waste. Other tires could (cleanup) be petitioned to not be considered a solid waste. • The June 4th Notice removed the exemption for regulated tires, increased level of processing to ASTM 6700-01 standard (relatively wire free and maximum size) but retained petition ability. • The Alternative Approach eliminated the petition process. Cement kilns using whole tires as TDF now have no option to avoid 129. adem.alabama.gov

19. ADEM Comments to Docket • ADEM submitted comments to Docket#EPA-HQ-RCRA-2008-0329 on July 19, 2010. • Comments focused on three areas: effect on state SW management programs, proposed definition of SW, and effect on current and future beneficial use applications of NHSM. • Of particular concern and focus was the effect on the current state regulatory program guiding the use of scrap tires as fuel. adem.alabama.gov

20. General Comments to Docket • 96.5% of scrap tire beneficial use in Alabama is TDF, the majority being whole tires used by cement kilns. • Process does not require processing especially to ASTM standards and wire removal would negate benefits to clinker formation. • Eliminating this use, coupled with no current viable alternative would result in landfilling of these tires. • Since Alabama does not ban whole tires from disposal, and without sufficient market alternatives, illegal dumping could increase. • Costs for site remediation would also increase. adem.alabama.gov

21. General Comments to Docket • Through case law, and as done previously, EPA does have flexibility to define “discard”. • For example in Safe Food and Fertilizer v. EPA, the court held that EPA had this discretion even when material is transferred between industries. • As to petition process, we strongly support the process, and that it be delegated to states with solid waste programs. adem.alabama.gov

22. General Comments to Docket • One of the stated goals of the proposal is to lower emissions. • TDF, including whole tires without belt removal is comparable or preferable to the use of coal as a fuel. adem.alabama.gov

23. ADEM Comments to Docket • While other NHSM may result in increased emissions, classifying TDF as SW based on terms such as “discard”, “control of the generator” and “legitimacy criteria” is not consistent with the proposed goal. • EPA should retain the ability to review NHSM and base waste classification on scientific evaluation of each material versus traditional fuels. adem.alabama.gov

24. ADEM Comments VII.C.4. • EPA’s proposal would classify disaster debris and construction lumber as meeting legitimacy criteria, even when no longer in control of the generator. This conflicts with classifying TDF as solid waste because it is no longer in control of the generator. • EPA states that the amount of processing necessary may vary by material, but rejects no or minimal processing, while accepting sizing or drying “in combination with other operations” (not clearly defined). This would greatly impact biomass separated at a disposal site being simply ground or size reduced and then shipped for use as fuel. adem.alabama.gov

25. ADEM Comments to Docket • Comments were specifically requested on why not to consider tires collected under state programs as discarded. • Alabama’s program requires tires to be manifested from generation to disposal or end-use. Usage quantities and time limits are required by permit. Generators may choose to retain tires or have them enter this system. • Some NHSM not classified as SW under the proposal do not have anything close to this level of control and management. adem.alabama.gov

26. ADEM Comments VII.D.4.b. • Rationale for Processing states: • Material must undergo sufficient processing that it produces either a new fuel or ingredient product • Product must satisfy product criteria based on type of combustion unit • Material must ensure material consistently meets needs of end use according to specifications. adem.alabama.gov

27. ADEM Comments VII.D.4.b. • Whole tires provide cement kilns consistency of fuel product while not requiring processing. In fact, feed systems for this specific material are designed to satisfy needs of the end user. • Processing provides no further benefits to the user nor results in emissions reductions when compared to traditional fuel (coal). • We also believe, even if retaining petition process, requiring this material to undergo such a process is burdensome and unnecessary. • Processing required should be scientifically dependant on combustion unit and emission control equipment. adem.alabama.gov

28. ADEM Comments to Docket • Section VII.E., discusses the Alternative Approach. This approach is not supported by the Department. Primarily that a NHSM (TDF) combusted for energy recovery and that does not result in increased emissions could be rejected outright with benefit of a review on a scientific basis. adem.alabama.gov

29. ADEM Comments Section IX. • Section IX. Costs and Benefits of Proposed Rule is of great concern. • States have invested in scientifically based statutes, regulations and management programs. • State beneficial use, source reduction and recycling programs would be greatly affected. • Industries properly regulated and in compliance for a long standing process now would face economic burdens without resulting in tangible benefits (emissions from TDF). • Remediation programs (6.3 million scrap tires in Alabama since 2005) focusing on beneficial use and recycling would be greatly affected (95%). adem.alabama.gov

30. Conclusion • Since the 1980’s, EPA (and groups behind activities leading to this proposal) has promoted the waste management hierarchy as the ultimate waste management approach, providing the greatest gains in environmental protection. • The preference for reuse/recycling as a preferred option to disposal is readily apparent and has been a cornerstone of environmental regulation for decades.Through RCRA, this approach promotes the beneficial use of secondary materials, while ensuring human health and environmental protection. • EPA’s own statements in the NPRM recognize the importance of this activity not only recovery of valuable resources but in contributing to emissions reductions. Therefore, the proposal subjects some materials to a higher standard without a strong scientific basis. adem.alabama.gov

31. Conclusion • The proposed rule would negate years of work by EPA and the states (beneficial use, RCC). • The proposal’s “shotgun-type” approach in classifying materials as solid waste does not allow consideration of the benefits of individual NHSM to traditional fuels in both fuel value and emissions reductions. • The removal of ability to petition for materials that provide the stated benefits of the proposal is shortsighted. • Preference for biomass and other alternative fuels should not be the basis for applying terms such as “discard”, “control of the generator” and “sufficient processing” differently to such materials. adem.alabama.gov

32. Contact Information M. Gavin Adams, Chief Materials Management Section ADEM Land Division mga@adem.state.al.us tiremail@adem.alabama.gov 334-271-7988 adem.alabama.gov adem.alabama.gov