Boiler or Incinerator and Secondary Materials that are Solid (Not Hazardous) Wastes

It's almost never easy to fathom federal environmental regulations and this held true when a set of regulations was recently issued by the U.S. EPA. On December 20, 2012, the Agency issued a series of rules, primarily under the Clean Air Act, to address emissions from sources generally classified as boilers or incinerators. Part of the regulatory package also included revisions to standards and procedures enacted under authority of the Resource Conservation and Recovery Act ("RCRA") that will determine whether non-hazardous secondary materials constitute waste when burned in such units. The waste issue associated with these units is a part of a long-standing effort by the EPA in order to characterize various secondary materials as being either wastes or non-waste fuels. The determination is aided by the recent rule regarding Non-hazardous Secondary Materials ("NHSM" for the acronymically inclined), which refines existing RCRA rules defining a solid waste, and which effectively serves to determine whether a unit would be regulated by applicable standards for boilers or as an incinerator. If the combustion material is considered to be a waste under the NHSM rule, the burning unit will be characterized as an incinerator and regulated as a Commercial and Industrial Solid Waste Incinerator ("CISWI"). Other rules in the package impose emission standards and operating requirements for CISWIs and for various classifications of boilers. Boilers classed as major sources of emissions will be required to meet the accompanying Major Source Boiler MACT (Maximum Achievable Control Technology). Those classified as "area sources" are also affected, but have somewhat different standards under a separate MACT standard. Finally, the compliance deadlines, along with the rules applicable to these separate units, will be different. As a requirement, major source boilers will need to be in compliance in early 2016, while smaller, area-source boilers have an initial compliance date of March 21, 2014. In order to achieve compliance standards, the right to request an additional year is available. With respect to incinerators, there are a couple of factors that could apply which are dependent on EPA action, but the latest compliance deadline is anticipated to be in 2018. For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

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