Gossman Consulting, Inc.
November 1994

Review of EPA's Sham Recycling "Policy"
Jim Woodford
This month's issue of HWF Notes re-examines "EPA's Sham Recycling Policy." How did this "policy" come about and what is the current state of affairs?

EPA originally published what came to be known as their Sham Recycling Policy March 16, 1983. It was published in the Federal Register as, "a memorandum providing enforcement guidance regarding whether burning low energy hazardous wastes for ostensible energy recovery purposes can be considered to be legitimate recycling activity within the meaning of 40 CFR 261.6(a)(1)." (48 FR 11157 3-16-83)

This policy also intended to help determine whether or not the recycling activity was exempt from regulation. The EPA provided additional clarification by stating, "While this guidance sets out general rules, they may vary in particular cases, depending upon individual circumstances." (48 FR 11157 3-16-83)

It is of significant interest to note that the initial enforcement directive from this guidance was aimed at "fuels destined for use in non-industrial (i.e. residential, commercial and institutional) boilers. These boilers typically are of relatively small size, achieve relatively low fuel efficiency, temperature, and resident times, lack emission controls, and receive limited maintenance." (48 FR 11158 3-16-83)

It was in this enforcement guidance memorandum under "General Distinctions Between Burning as Legitimate or Sham Recycling" that the concept of 5,000 Btu/lb, as the lowest heating value for wood, was introduced as a waste fuel guidance benchmark.

Four years later, the "Burning of Hazardous Waste in Boilers and Industrial Furnaces, Proposed Rule and Request for Comment." was published in May, 1987. In the preamble to the proposed rule EPA stated, "To ensure that hazardous waste typically destined for incineration because of its low heating value was not burned in a boiler or industrial furnace, ostensibly for energy recovery but actually to avoid the cost of incineration, the Agency developed a sham recycling policy. . . . That policy held that if a hazardous waste having less tha[n] 5,000 to 8,000 Btu/lb heating value were burned in a boiler or industrial furnace, it was not burned for its fuel value but rather to avoid the cost of incineration." (52 FR 16985 5-6-87)

It is in this summary statement that EPA varies from the March 16, 1983 Enforcement Guidance in a significant manner. The Purpose section of the March 16, 1983 Enforcement Guidance states, "This memorandum provides guidance to determine when burning hazardous waste or hazardous waste-derived fuels in boilers [emphasis added] will be considered legitimate recycling under 40 CFR 261.6(A)(1)."

There is absolutely no mention of industrial furnaces in the entire memorandum. It is clear that EPA greatly extended the stated reach of the original March 16, 1983 Enforcement Guidance memorandum by maintaining that not only were "non-industrial (i.e. residential, commercial and industrial) boilers" included, but that industrial furnaces were included as well. No explanation was provided as to the logic for suddenly including industrial furnaces.

It is pertinent to note that not only did the Enforcement Guidance cover only "non-industrial (i.e. residential, commercial and industrial) boilers" but that the fuels intended to be covered were such fuels as fuel oil and other "virgin or unadulterated secondary fuels" as evidence by the following Enforcement Guidance language: "In determining if [blended fuels] contain low energy wastes, we intend to concentrate on the fuel's organic contaminants content. If fuels contain significant concentrations of low energy organic contaminants not ordinarily present in virgin or unadulterated secondary fuels, (emphasis added) this should be sufficient to determine that these toxicants were added as wastes."

EPA further expands the magical inclusion of industrial furnaces later in the BIF proposed rule as follows: "The policy was published in the March 16, 1983, Federal Register and states that EPA considers any hazardous waste that has less than 5,000 to 8,000 Btu/lb heating value, as generated, to have minimal heating value relative to commercial fuels. Thus, when such low heating value waste is burned in any enclosed device using controlled flame combustion--including boilers and industrial furnaces--it is considered to be incinerated . . ." Not only did EPA add industrial furnace language for the first time, but effectively encompassed the world of controlled flame combustion as well.

Subsequently, in the "Burning of Hazardous Waste in Boilers and Industrial Furnaces, Supplement to proposed rule." (54 FR 43718 10-26-89), EPA reiterated the modified version of the March 16 sham recycling guidance by stating, "On March 16, 1983, EPA published an Enforcement Guidance (FR 11157) which provided guidance on burning low energy hazardous waste, ostensibly for energy recovery, in boilers and industrial furnaces. This guidance has been referred to as EPA's Sham Recycling Policy. This policy stated that when hazardous waste having a heating value less than 5,000 Btu/lb is burned in boilers and industrial furnaces, EPA generally considers the practice to be burning for destruction (i.e. incineration) rather than exempt burning for energy recovery." Again, industrial furnaces were not included in the March 16, 1983 enforcement guidance contrary to what this 1989 citation inaccurately states.

Consequently, within this statement two years after the BIF rules were first proposed, EPA continues to perpetuate the incorrect notion that industrial furnaces were specifically included in the March 16, 1983 sham recycling enforcement guidance. It is also of interest to note (and clearly favorable to BIFs since they didn't choose 8,000 Btu/lb) that by this October 26, 1989 supplement to the proposed BIF rule, EPA had obviously settled on 5,000 Btu/lb as the lower limit for a legitimate fuel. Be reminded, however, that the 5,000 Btu/lb was offered as guidance in 1983, not promulgated regulation. Even if one is willing to accept that the sham recycling policy was properly developed, it was supposedly superseded by the BIF rules two years later. (56 FR 7134 2-21-91)

In the final BIF rules, EPA states that, ". . . after certification of compliance, a BIF may burn hazardous waste (other than waste fed solely as an ingredient or solely for material recovery) with a heating value lower than the 5,000 Btu/lb limit generally considered heretofore to be the minimum for a legitimate hazardous waste fuel. Although the Agency considers such burning to be treatment [emphasis added] we believe that conformance with the emissions standard upon certification of compliance under §266.103(c) will ensure protection of human health and the environment." (56 FR 7183 2-21-91) §266.103(a)(5) addresses Burning hazardous waste solely as an ingredient. and §266.103(a)(6) addresses Restrictions on burning hazardous waste that is not a fuel. Hazardous waste is burned solely as an ingredient if it meets either of the following criteria:

In both §266.103(a)(5) & (6), the two criteria of 5,000 Btu/lb and 500 ppm by weight of 261 appendix VIII compounds can be altered by bona fide treatment. A thorough search of the regulations coupled with a call to the RCRA hotline has revealed that there is no definition of bona fide except for Agency verbal guidance of "anything but simple blending." It is intriguing to note that in 56 FR 7183 2-21-91, EPA has stated that the burning of hazardous waste with, "heating value lower than the 5,000 Btu/lb limit generally considered heretofore to be the minimum for a legitimate hazardous waste fuel." is an activity whereby "the Agency considers such burning to be treatment . . ." The question then begs to be asked; is this considered to be bona fide treatment? The lack of definitive statutory language makes this an intriguing Catch 22 scenario.

Current state of affairs

Despite the fact that the BIF rules clearly abolish the effects of any "sham recycling policy" after Certification of Compliance is completed, EPA regional representatives continue to refer to use of waste materials containing less than 5,000 Btu/lb as treatment. Unfortunately, this logic is working its way into CKD and clinker considerations as well. In essence, EPA continues to use convoluted logic to enforce their "sham recycling policy," which was questionably a legal "policy" in the first place, and which clearly did not include cement kilns.

Surprisingly enough, here is a clear case of enforcement guidance that smoothly turned into a "policy", without following proper procedure. It is highly questionable if it was ever a legal policy in the first place. And even now that the BIF rules have effectively abolished the so called "policy", it continues to haunt cement kilns as they discuss Recertification of Compliance (ROC) testing and/or Trial Burn testing. It just confirms that industry needs to be ever vigilant for future effects of seemingly innocuous EPA language, whether or not it appears to affect cement kilns. This vigilance is particularly pertinent as EPA prepares to rule on CKD and continues to move forward with such documents as the municipal waste combustor regulations, CETRED and the dioxin reassessment report.