In other words uncontained gas is not a RCRA waste. Historically, the Agency viewed gas moved through pipelines as uncontained and therefore a nonwaste. This was a critical interpretation for many industries that move various process and natural gases, notably landfill methane, through pipelines for combustion as fuel in boilers. But in response to comments on the proposed rule to identify nonhazardous materials that are solid waste (the NHSM rule), the Agency made a troubling statement:
“[W]e are unable to find any Agency reasoning supporting previous EPA interpretations that only gases in containers may be considered ‘contained.’ Based on the facts of this case, EPA cannot see how gaseous secondary material that is generated in any particular system and is somehow sent to a gas-fired boiler, even through a pipeline, can be considered an ‘uncontained gas.’
This even assumes that ‘uncontained gas’ is not covered under the definition of solid waste, which EPA does not concede in this rulemaking. This would mean that a clean gas-fired boiler could still burn under CAA 112 secondary material that is handled through a seriously leaking pipeline, has little to no real fuel value, and is full of dirty contamination, simply because the material is not a ‘contained gas’ under the definition of solid waste. EPA rejects any such formulation.”
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CAA or RCRA?
While hardly a model of clarity, the statement does seem to indicate that a gas transported through a pipeline would be considered a nonwaste only if it possesses high heating value and is managed as such—i.e., not allowed to be lost “through a seriously leaking pipeline.” With that concern in mind, was the Agency saying that it would consider gas transported in pipelines as contained and therefore a RCRA waste? If that was the case, the boiler combusting the gas, which was subject to CAA national emissions standards for hazardous air pollutants (CAA Section 113), would now be viewed as an incinerator subject to more burdensome RCRA regulations.
The statement resulted in several meetings between industry groups and EPA officials who run the RCRA programs. Those meetings were followed by at least two letters to the groups in which Suzanne Rudzinski, director of EPA’s Office of Resource Conservation and Recovery, attempted to clarify the intent of the controversial statement as well as the Agency’s position on the combustion of gaseous material.
In one of the letters, Rudzinski says, again somewhat evasively, that the statement was given in response to a request that the EPA provide a definition of contained gaseous material in the NHSM rule, an action the Agency did not believe was necessary, she wrote. But more pertinent to industry concerns, Rudzinski also stated, much more clearly, that the “EPA was not changing any of its previous positions regarding what constitutes a ‘contained gaseous material’ for purposes of defining the term ‘solid waste’ under RCRA.”
The concerns about EPA’s possible shift were such that the White House’s Office of Information and Regulatory Affairs (OIRA) issued its own document explaining in detail how the Agency has, for decades, regarded both landfill gas and gas transported to a combustion device as uncontained.
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Rudzinski emphasizes in one of her letters that there is an important condition to the designation of landfill gas as a fuel not subject to RCRA. Specifically, and again in line with its historical interpretations, the EPA does not regard landfill gas and sewage digester gas as traditional fuels. Instead, the Agency views such gases as commodity fuels. This means that the gas must qualify as a fuel under EPA’s legitimacy criteria. In practical terms, the permitting authority would need to determine on a case-by-case basis if the gas meets three conditions:
- The gas must be managed as a valuable commodity.
- The gas must have a meaningful heating value and be used as a fuel in a The gas must contain contaminants at levels comparable to or lower than the concentrations in traditional fuels the combustion unit is designed to burn.
As Rudzinski indicates, EPA-authorized permitting agencies will likely be more disposed to recognizing the legitimacy of landfill gas as a fuel if the regulated business can provide evidence that it has been “processed”—at a minimum, “filtered, dewatered, and compressed.”