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November 17, 2009 

The Honorable Lisa Jackson 

Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

Dear Administrator Jackson : 

On January 2, 2009 the Environmental Protection Agency (EPA) published in the 

Federal Register, Vol. 74 No. 1, an Advanced Notice of Proposed Rulemaking (ANPRM) 

for the identification of non-hazardous materials that are not solid waste when 

combusted. This ANPRM is in direct response to a D.C. Circuit Court of Appeals 

decision, NRDC v. EPA, 489 F.3d 1250 (D .C . Cir. 2007). Under that decision, any 

material that EPA defines as "solid waste" under its authorities for non-hazardous waste 

(Resource Conservation and Recovery Act (RCRA) Subtitle D; see also, Section 

129(g)(6) of the Clean Air Act (CAA)) would trigger applicability of "solid waste 

incineration" standards set under Section 129 of the CAA. 

We are concerned that EPA may propose a rule under RCRA that would impose 

new barriers to environmentally sound resource conservation and recovery. Because we 

understand that EPA's proposal would exclude "processed" or shredded tires from the 

new Subtitle D definition of solid waste, we are specifically concerned about how that 

proposal may affect the use of whole scrap tires as a non-hazardous alternative fuel, 

particularly in cement kilns If whole tires (regardless of origin) were not excluded from 

the new definition, any cement kiln that used such a "solid waste" material as fuel would 

be subject to CAA § 129 standards in addition to the numerous highly protective 

standards to which cement kilns are already subjected. These standards would 

unnecessarily make compliance very burdensome and impose excessive costs. 

The result of such regulation will provide an incentive for cement kiln operators 

to avoid using any fuel that would subject their kilns to these inappropriate standards. 

We believe that this would be contrary to what EPA is trying to achieve, as EPA has long 

recognized the substantial environmental and economic benefits of using energy-bearing 

secondary materials as fuels in industrial processes. 

The greatly expanded use of scrap tires as alternative fuel in industrial devices 

such as cement kilns has been instrumental in dramatically increasing the recycling rate 

of scrap tires from 11% in 1990 to 87% by 2005 . Tire-derived fuel facilities in the state 

of Oklahoma utilize over 50 % of the state of Oklahoma's waste tires for energy 

recovery. Not only is this a good recycling practice that conserves our natural resources, 

it also frees up much needed landfill space by removing tires from the waste stream, 

prevents the concentration of pests such as rats and mosquitos, and resolves the fire threat 

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that piles of used tires present. This practice is an environmental and economic success 

story that should not be discouraged. 

Cement kiln operators nationwide are utilizing technologies that enable the use of 

whole scrap tires as fuel . These technologies avoid the significant cost of shredding and 

are a particularly economically efficient method for managing scrap tires. Of the roughly 

40 U.S. cement plants that use scrap tires for energy recovery, 29 of them use whole tires. 

Excluding only shredded or processed from the definition of "solid waste" tires will 

discourage the reuse of tires as alternative fuel and will drive cement kiln operators to 

consume more fossil fuels instead. 

This proposal would also preclude the recovery of discarded tires from landfills 

and illegal disposal sites because state scrap tire recovery programs rely almost 

exclusively on cement kilns that use whole tires as fuel . To encourage cleanup of 

illegally disposed tires, some states, including Oklahoma, require users of scrap tires to 

acquire a certain percentage of their tires from land disposal sites. It would severely 

damage many if not all of these programs if cement kilns would no longer use whole tires 

as fuel . 

We believe that the inclusion of whole tires in the definition of "solid waste" for 

Subtitle D purposes and consequently CAA Section 129, may be based on the need for 

factual information which we may be able to provide. EPA and the cement industry 

working cooperatively is the best chance to avoid counter-productive results. We realize 

that RCRA's definition of solid waste includes "discarded material" (RCRA § 1004(27)) 

and that whole tires placed in piles might be deemed to have been discarded at the time 

they were placed there. But just because a material has been discarded in the past 

(whether legally or illegally), there is no reason to assume that it must be deemed 

"discarded" forever, particularly when a valuable and beneficial use is found for it. 

Additionally, including whole tires in the exclusion will not prevent states from 

regulating solid waste. The Oklahoma Department of Environmental Quality wrote in an 

April 13, 2009, letter to the EPA, that "A state's ability to regulate solid waste under their 

own authority is not prohibited by the proposed Federal Rule . If tires were not 

considered a solid waste we would still be able to regulate tires either through our tire 

statute or as a public nuisance." 

Tire-derived fuel facilities, especially cement kilns, are a great recycling story in 

Oklahoma and throughout the nation . EPA should develop a balanced, environmentally 

sound proposal that endorses the current practice of recovering energy from whole tires 

while ensuring that Congress' intent for RCRA and CAA is honored. 

We hope that you keep our concerns in mind as you continue to develop a 

proposed rule . We would appreciate an update on this rule by November (two weeks 

from signed day) . If you have any questions, please contact Matthew Hite on the Senate 

EPW staff at (202)224-6328. 
Thank you for your service to our great country. 

Sincerely, 

Rep. ary