SBA Soliciting Information on EPA Boiler Rules

The SBA Office of Advocacy is actively soliciting information from small businesses regarding the impact of a set of pending EPA regulations. You may have been hearing about boiler rules as the businesses that will be impacted are very concerned. We have approximately a 30-day window to collect information as the EPA seeks to revise and improve the final rules.

You can find background on the issue and SBA specific questions about the proposed rules are below.  Our primary focus is on the NHSM rule (non-hazardous secondary materials rule). Secondary materials are what remain after an industrial or other process. These materials are often burned in boilers as fuel – thus displacing the use of fossil fuels such as coal, oil or natural gas. The use of secondary materials is a form of recycling that avoids the expense of land filling or the expense of paying for a substitute fossil fuel.

This is not a new practice but the pending rule of designating which materials are waste and which are non-waste has significant financial impact on many businesses – most specifically cement kilns, steel mills, paper mills and any manufacturers who burn secondary materials for heat or for a manufacturing process, as well as dairy farms and other venues who are burning manure for heat.  This would also include companies trying new recycling processes for energy production.

There is a specific set of questions we would like to pose to these impacted businesses (see attached if you are interested in the detail) but my request of you is simply for outreach suggestions. If you can forward me names of trade associations, individuals, engaged chambers etc that may be impacted by or concerned about these rules, I would be deeply grateful.  Alternatively, please feel free to forward this email and attachment directly to any interested parties.

Contact:  Jennifer Clark | Regional Advocate, Region X – AK, ID, OR, WA | SBA Office of Advocacy | 2401 Fourth Avenue, Suite 400, Seattle, WA 98121 | p 206/553-0390 | f 202/481-2275 | jennifer.clark@sba.govwebsitelistserv | blog | Facebook | twitter |



The Boiler Rules

EPA has been developing a series of rules to cover industrial, commercial, and institutional boilers and incinerators.  These rules are the Major Source Boiler Rule, the Area Source Boiler Rule, the Commercial/Industrial Solid Waste Incinerator (CISWI) Rule, and the Identification of Non-Hazardous Secondary Materials that are Solid Waste (NHSM) Rule.  EPA issued all four rules as final in March under a consent decree that EPA (and industry) believed did not allow sufficient time to respond to all public comments.  Thus, EPA issued new proposals last Friday to revise and improve these final rules.  Our focus now is on the NHSM Rule.


Non-hazardous secondary materials are materials that are left over after an industrial or other process.  In many cases these materials are burned in boilers as fuel.  This fuel displaces other fossil fuels, such as coal, oil and natural gas.  This use of secondary materials is a form of recycling that avoids the expense of sending these secondary materials to a landfill, and paying for substitute fuel.

If the material is determined to be a “non-waste,” then the burning of the material is regulated under the industrial boilers rule.  If the material is determined to be a “solid waste,” then the boiler is regulated as a commercial industrial solid waste incinerator (CISWI), which is regulated under a separate, more stringent air pollution standard.

  • EPA’s failure to designate certain fuels as non-wastes would require disruption of manufacturing processes at many sites, including cement kilns, steel mills, paper mills and other manufacturing.
  • Although industry has been burning these secondary materials for decades, EPA now believes these some of these materials are solid wastes, because it believes that this waste material is being burned for the purpose of discarding it, rather than used for energy combustion.
  •  The proposed rule does designate clean biomass, including sawmill and forest by-products, clean construction and demolition materials, and resinated wood by-products, and coal refuse  as non-wastes since EPA concludes that these materials are not being discarded.
  • We have asked EPA to make the same designation for (1) off-specification used oil, (2) pulp and paper processing residuals, (3) scrap tires in stockpiles, (4) animal manure, (5) treated wood, and (6) pulp and paper sludges.  We don’t see a clear difference between these wastes and the ones proposed by EPA.
  • EPA does propose a petition process for individual facilities to request a “non-waste” determination.  This could require separate petitions for the same material by up to 10 Regional Administrators, instead of a single categorical determination by the EPA Administrator.


 In the NHSM proposal, EPA states that  “the Agency recognizes that there may be other NHSMs that should also be considered non-waste fuels, based on a balancing of the legitimacy criteria with other relevant factors.”  The agency seeks information to support a categorical designation for the material, in lieu of a petition by individual facilities, which would save considerable resources for the Agency and petitioners.

We would like to receive the following specific information to support a non-waste designation for the secondary fuels that we have identified, and any other non-waste fuels used by small businesses.

(1)   Whether market participants treat the non-hazardous secondary material as a product rather than as a solid waste;

(2)   Whether the chemical and physical identity of the nonhazardous secondary material is comparable to commercial fuels;

(3)   Whether the non-hazardous secondary material will be used in a reasonable time-frame given the state of the market; and

(4)   Whether the constituents in the non-hazardous secondary material are released to the air, water or land from the point of generation to the point just prior to combustion of the secondary material at levels comparable to what would otherwise be released from traditional fuels.

As part of the overall consideration of the above “legitimacy factors,” and “other relevant considerations,” EPA is also interested in:

(1)   Existence of  contracts that establish material specifications and handling requirements;

(2)   Whether the combustion unit is constructed specifically to combust secondary materials;

(3)   Whether the combustion of secondary materials is an integral part of  the manufacturing process;

(4)   How the secondary material is handled at each site, where it is prepared for use, stored, or combusted.

We also want to learn about the financial hardship that would result if EPA did not grant the non-waste determination.  How much secondary material would be landfilled as the cheaper alternative to burning at units that meet the more expensive CISWI limits?  How much fossil fuels would need to be combusted to replace the secondary material?  What are the related costs and environmental impacts from the failure to treat this material as non-waste?  These can be provided on an individual facility basis, or industry-wide estimates.

Request for Information :

Please provide information  directly to Kevin Bromberg, at  (202-205-6964).   We’ll be accumulating this information over the next several weeks.