EPA Administrator Lisa Jackson recently wrote in a letter to Senator Olympia Snowe (R-ME) that EPA will promulgate a rule revision that will define biomass as a fuel subject to its boiler maximum achievable control technology (MACT) rule, rather than a nonhazardous waste subject to its rule for commercial and industrial solid waste incinerators (CISWI). 

The letter was sent in response to the Senate’s consideration of S. 1392, which would treat “all forms of biomass” as fuel, including resinated wood and treated wood. S. 1392 has the backing of 35 Senators, including 11 Democrats. The House version of the legislation delaying the boiler MACT rule is nearly identical, but does not contain several of the biomass provisions that are in S. 1392. That version passed the House October 13 by a vote of 275-142. 

This past summer, EPA released a guidance document clarifying that “many secondary materials were never intended to be defined as non-hazardous waste.” The forest products industry, however, continues to push for legislation or rulemaking, saying more than a guidance document is needed. 

In her letter, Administrator Jackson promises that EPA will revise several aspects of the waste definition, including “clarification” that several materials “within the scope of biomass” are considered fuels. The letter also promises that the rule will include a process for companies to ask EPA to define other materials as fuel through a case-specific petition process. S. 1392 contains a similar provision. 

The letter does not promise a timetable for the rule revision. 

For more information on S. 1392 and federal rulemaking, please contact Steve O’Day (soday@sgrlaw.com) or Phillip Hoover (pehoover@sgrlaw.com).