Message Information Date 03117/2010 12:43 PM From James Pew

<jpew@earthjustice.org> To LisaPJackson/DCIUSEPA/US@EPA

cc Subject Wendy Blake/DC/USEPAIUS@EPA; Patricia Embrey/DC/USEPAIUS@EPA;

Lisa Garcia/DCIUSEPA/US@EPA; Lisa HeinzerlingIDC/USEPA/US@EPA; Charles Lee/DCIUSEPAIUS@EPA ; Gina McCarthy/DC/USEPA/US@EPA; Richard Ossias/DC/USEPA/US@EPA; Steve PageIRTPlUSEPAIUS@EPA ; Mathy StanislausIDC/USEPAIUS@EPA; Bob SussmanlDC/USEPA/US@EPA; Peter Tsirigotis!RTPIUSEPA/US@EPA Non-hazardous solid wastedefinition Message Body Dear Administrator Jackson: attached is a letter fromnational public health and environmental groups regarding EPA's forthcoming rulemaking to define non-hazardous solid waste. Like the March 10 letter fromcommunity groups that you received last week, this letter seeks your help to ensure that the proposed definition does not undermine EPA's good work to protect public health and the environment fromthe effects of toxic air pollution. If you have any questions about the letter or the issues it discusses, please do not hesitate to contact me. Sincerely, JimPew James S. Pew Staff Attorney Earthjustice 1625 Massachusetts Avenue, NW Washington, D

.C. 20036 (202) 667-4500 (phone) (202) 667-2356 (fax)

March 17 2010letter reDef Non-Haz SolidWaste Of

OEX Processing Information Processed Date: Processed By PO Office Category: Message CountMarch 17. 2010

Administrator Lisa Jackson Environmental Protection Agency Aricl Rios Building 1200 Pennsylvania Avenue, N.W . Washington, DC 20460 Dear Administrator Jackson: 

### On behalf of national environmental and public health organizations, we write to seek your help on an issue ofgreat importance to communities across the country. As you may know, 

### EPA's Office of Solid Waste and Emergency Response (OSWER) is scheduled to propose its first ever regulatory definition ofnon-hazardous solid waste by April 16,just days before the 40`h anniversary of the EPA and Earth Day. We are deeply concerned that OSVJER's proposed definition ofsolid waste will exempt and deregulate thousands ofindustrial facilities that burn 

### their waste on site fromany significant obligation tocontrol the toxic air pollution they create. This critical definition will determine whether industrial facilities that burn spent 

### solvents, plastics, used oil, sludges and other industrial wastes in on-site incinerators are required tocontrol the toxic air pollution they generate, or are allowed to release it - uncontrolled - into 

### nearby communities. Weare concerned that theproposed definition could cover, at most, the waste burned at only a tewhundred industrial facilities. Thousands of American communities 

### located near other industrial facilities that burn theirwaste in on-site incinerators would be denied badly needed relief fromthe devastating health effects that the toxic pollution generated 

### by these waste-burning facilities cancause. To make matters worse. such a definition would encourage even more industrial facilities to burn their waste in unregulated on-site incinerators - adding to the burden oftoxic pollution and discouraging recycling and responsible waste 

### disposal alternatives. As Congress recognized when it adopted the 1990CleanAir ActAmendments, the uncontrolled or poorly controlled combustion of solidwastecan result in significant emissions of toxic metals such as mercury and cadmium, persistent and highly carcinogenic organic pollutants such as dioxins, acid gases, and particulate matter . 42 U .S.C. § 7429(a)(4) . So concerned was Congress with the hazards caused by this pollution that it ordered EPAto issue highly protective emission standards, monitoring requirements, operator training requirements andsiting requirements for all units combusting such waste no later than November 15, 1994. 42 U.S.C . § 7429(a)(1)(D) .These standards still do not exist . Much ofthis 15-year delay resulted frommisguided

attempts by previous administrations to exempt incinerators that recover energy fromthe Clean Air Act's incinerator requirements. When that deregulatory scheme was finally reviewed by the D .C. Circuit under the prior administration, that Court rejected it as flatly unlawful . NRDCu. EPA, 489 F.3d 1250 (D.C. Cir. 2007) . In the last days ofthe Bush administration, however, EPA sought to resuscitate the same rejected approach by issuing an advanced notice ofproposed rulemaking (ANPRM) that effectively excluded waste burned for energy recovery fromthe definition of"solid waste" under RCRA. It is that approach that we are deeply concerned will govern EPA's upcoming proposal . The definition of solid waste advanced in the ANPRM contravened both the CleanAir Act and RCRA forreasons that are explained in comments submitted by Earthjustice and Sierra Club and summarized in a letter that more than 85 community groups submitted to OSWER Assistant Administrator Mathy Stanislaus last August. Any definition of' solid waste that excludes plastics, spent solvents and other industrial wastes that are burned for energy - either on-site or off-site - would exempt thousands of industrial facilities fromprotective emission standards. For example, it would exclude as many as 1,700 chemical plants that may burn spent chemicals and other wastes in on-site incinerators, allowing those incinerators to be operated without any significant pollution control, operating, or monitoring requirements. Although the combustion ofwaste chemicals in uncontrolled or poorly controlled incinerators would almost certainly send toxic air pollution into nearby communities, the people in those communities would be unable even to learn the identity and quantity oftoxins to which they were being exposed, much less protect themselves and their families by demanding that pollution control and monitoring equipment be installed
. Further, by promulgating a definition that allows industrial waste to be burned on-site in uncontrolled incinerators, EPAwill make on-site incineration more attractive than recycling or safer disposal methods
. A narrow definition of waste also would exacerbate the challenges facing States that need to reduce PM2_5 and ozone pollution to comply with national ambient air quality standards
. By significantly reducing the number of facilities that are subject to Clean Air Act emission standards, it will force States to seek larger cuts lromfewer facilities. It would be very difficult for EPA to issue a final definition ofsolid waste that is protective and legally defensible if the only definitions the agency proposes are narrow and deregulatory
. Indeed, issuing only narrow definitions in the proposal could preclude EPA from issuing a broad definition in the final rule even ifthe agency, ultimately concludes that a broader and more protective definition is required
. At a minimum, such an approach could result in substantial delay by necessitating a supplemental proposal and another round ofpublic comment. It bears emphasis that the solid waste definition is an integral part ofEPA's air toYics standards for industrial incinerators that are nowmore than 15 years overdue and subject toa December 16, 2010 court-ordered deadline that already has been extended repeatedly. Further delay of' these standards - as would likely result fromthe need for a supplemental proposal - would violate the court order and would severely prolong and exacerbate the exposure to toxic pollution in communities who already have waited far too long for reliefthat Congress intended EPA to have put in place by 1994.We urge you to keep all of EPA's options open by including the approach to defining

solidwaste definition we recommended in comments on the ANPRM, alongwith any other options EPA may choose to propose. We believe our recommended approach is the only one that is appropriate, protective and legally defensible. We also believe that proposingonly narrow definitions ofsolid wastewould conflict directly with the commendable goals and priorities that you have set for EPA, especially your welcome regard for environmentaljustice. ,A deregulatory waste approach would put public health at risk in communities all across the country. We wish to express our appreciation to OSWERAssistant Administrator Mathy 

### Stanislaus for meetingwith many of~us and hearing our concerns. We hope to furtherdiscuss this important issue with himandhis staff in thefuture. However, because ofthe issue's urgency and the health consequences to so rnany people in so many communities, we ask for your help to prevent an outcome that would be tragic and completely unnecessary. Sincerely, Charles DConnor President and CEO American Lung Association Frank O'Donnell President Clean Air Watch John f7eCock President Clean Water Action Trip Van Noppen President 

### Earthijustice Margie Alt Executive Director Environment America Fred Krupp President Envirunmental Defense Fund Frich Pica President Friends of the EarthPhil Radford

Executive Director Greenpeace USA Frank Gill President National Audubon Society Thomas C

. Kiernan President National Parks Conservation Association Frances Reinecke President Natural Resources Defense Council Peter W'ilk, MD Executive Director Physicians for Social Responsibility Michael Rrune Executive Director Sierra Club



### cc: email WendY Blake Patricia Embrey Lisa Garcia Lisa Heinzerling Charles Lee 

### Gina McCarthy Richard Ossias Steve Page 

### Mathy Stanislaus Robert Sussman Peter Tsirigotis