Message Information 

Date 03117/2010 12:43 PM 

From James Pew <jpew@earthjustice .org> 

To LisaP Jackson/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 waste definition 

Message Body 

Dear Administrator Jackson: attached is a letter from national public health and environmental groups 

regarding EPA's forthcoming rulemaking to define non-hazardous solid waste . Like the March 10 letter 

from community 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 

from the 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, 

Jim Pew 

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 Solid Waste Of 

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March 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 of great 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 of non-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 of solid waste will exempt and deregulate thousands of industrial facilities that burn 

their waste on site from any significant obligation to control 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 

to control the toxic air pollution they generate, or are allowed to release it - uncontrolled - into 

nearby communities. We are concerned that the proposed definition could cover, at most, the 

waste burned at only a tew hundred industrial facilities . Thousands of American communities 

located near other industrial facilities that burn their waste in on-site incinerators would be 

denied badly needed relief from the devastating health effects that the toxic pollution generated 

by these waste-burning facilities can cause . 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 of toxic pollution and discouraging recycling and responsible waste 

disposal alternatives . 

As Congress recognized when it adopted the 1990 Clean Air Act Amendments, the 

uncontrolled or poorly controlled combustion of solid waste can 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 EPA to issue highly protective 

emission standards, monitoring requirements, operator training requirements and siting 

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 of this 15-year delay resulted from misguided attempts by previous administrations to exempt incinerators that recover energy from the 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 . NRDC u. EPA, 489 F .3d 1250 (D.C . Cir. 2007) . In the last days of the Bush administration, however, EPA sought to resuscitate the same rejected approach by issuing an advanced notice of proposed rulemaking (ANPRM) that effectively excluded waste burned for energy recovery from the 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 Clean Air Act and RCRA for reasons 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 from protective 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 of toxins 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, EPA will 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 lrom fewer facilities . 

It would be very difficult for EPA to issue a final definition of solid 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 if the 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 of public comment. It bears emphasis that the solid waste definition is an integral part of EPA's air toYics standards for industrial incinerators that are now more than 15 years overdue and subject to a December 16, 2010 court-ordered deadline that already has been extended repeatedly. Further delay of' these standards - as would likely result from the 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 relief that 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 

solid waste definition we recommended in comments on the ANPRM, along with 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 proposing only narrow 

definitions of solid waste would conflict directly with the commendable goals and priorities that 

you have set for EPA, especially your welcome regard for environmental justice. ,A deregulatory 

waste approach would put public health at risk in communities all across the country . 

We wish to express our appreciation to OSWER Assistant Administrator Mathy 

Stanislaus for meeting with many of~us and hearing our concerns . We hope to further discuss 

this important issue with him and his staff in the future . However, because of the 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 D Connor 

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 Earth 
Phil 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