Foley Partner Richard G. Stoll and Associate Catherine M. Basic presented the Webinar, “EPA’s New Non-Hazardous Secondary Materials Rule,” hosted by Bloomberg BNA. The Environmental Protection Agency issued the Non-Hazardous Secondary Materials (NHSM) rule under the Resource Conservation and Recovery Act in December 2012. Published in the Federal Register February 7, the highly controversial rule defines which secondary materials combusted as fuels (such as used oil and plastics, wood trimmings, and scrap tires) will be ‘‘solid waste’’ for purposes of triggering incinerator standards under the Clean Air Act. Facilities (such as boilers, process heaters, and cement kilns) using fuels the NHSM rule defines as solid waste are regulated under Clean Air Act § 129’s standards for Commercial and Industrial Solid Waste Incinerators (CISWIs), while facilities using fuels that escape the solid waste designation are regulated under Clean Air Act §112 NESHAP or MACT standards.
The great majority of industry parties consider the NESHAP regime far preferable to the 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 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 EPA originally proposed.
The Webinar included:
- Analysis on the background and function of the NHSM rule, including which types of facilities may be regulated as incinerators under CISWI standards
- An outline of the basic framework of the new NHSM rule
- Comparison of the final version of the rule with more “out” opportunities to earlier versions
- Evaluation of when “comfort” might be obtained
- Discussion on the likelihood of follow-up litigation challenging the new NHSM rule
