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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


WASHINGTON, D.C. 20460

THE ADMINISTRATOR 

The Honorable Olympia J. Snowe 

United States Senate 

Washington, D.C. 20510 

Dear Senator Snowe: 

Thank you for your letter regarding the U.S. Environmental Protection Agency's Non Hazardous 

Secondary Materials rule. Given our shared goals of protecting air quality and public health, I am 

grateful for your efforts to help businesses thrive and create jobs without endangering the health of the 

American people. It is crucial that we continue to find solutions without undermining the Clean Air Act 

or delaying public-health protections that have been legally required for decades. 

Based on your feedback, as well as the comments of industry, the agency will initiate rulemaking 

proceedings to revise the NHSM rule. The EPA expects this process will produce a final rule that would 

provide certainty to industry by codifying provisions to avoid creating disincentives for burning clean 

materials, such as biomass, for fuel, while preserving the public-health protections required by the Clean 

Air Act. 

This rulemaking will be conducted on the same time line as the reconsideration of the Boiler and 

Commercial and Industrial Solid-Waste Incinerator rules under the Clean Air Act. As you know, the 

EPA initially proposed and finalized the NHSM rulemaking.to identify units that would be subject to the 

Boiler and CISWI rules. The Clean Air Act rules were required to be issued under an order from the 

U.S. District Court for the District of Columbia in Sierra Club v. EPA (No. 1:01 CV01537). These rules 

were mandated by the Clean Air Act amendments of 1990, but were not promulgated by the statutory 

deadline. The EPA is committed to listening to stakeholders' concerns and to addressing those concerns 

in a responsible manner that is consistent with the law, the science and the agency's mission. 

Specifically, the EPA intends to propose the following provisions: 

• Clarification that certain materials are already within the scope of biomass that is a traditional 

fuel under the current regulation, including the following materials as well as any others that fit 

the definition: 

o Agricultural and forest-derived biomass; 

o Bagasse and other crop and tree residues; 

o Biomass crops, vines and orchard trees; 

o Hogged fuel, including wood pallets, sawdust and wood pellets; 

o Wood debris from forests; 

o Wood debris from urban areas, if clean; and 

o Cellulosic biofuels

Internet Address (URL) • http://www.epa.gov


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• A process for an owner or operator of a facility to petition the Administrator for a determination, 

based on a balancing of the legitimacy criteria and such other relevant factors that the 

Administrator may identify, that a nonhazardous secondary material is not a solid waste when 

used as a fuel or an ingredient in a combustion unit. Under such a process, if the EPA were to 

identify any such material as nonwaste, the EPA would be making a national determination and 

individual persons would not be required to make an individual showing that the nonhazardous 

secondary material is not a waste. 

• A list of secondary materials in the regulatory text, including resinated wood products, which are 

nonwastes when used as a fuel or an ingredient in a combustion unit, based on a balancing of the 

legitimacy criteria and such other relevant factors that the Administrator may identify. These 

materials may be identified as nonwaste because, based on an assessment of the specific 

circumstances of the material stream, the agency may conclude that the combustion of the 

materials does not constitute discard. 

• Revise the legitimacy criteria to expressly allow the comparison of groups of contaminants and 

clarify that contaminate comparisons may be made for any traditional fuel for which a 

combustion unit is designed to burn. 

I look forward to continuing to work with you on this and other issues. Should you have any questions, 

please feel free to contact me or your staff may contact Arvin Ganesan, Associate Administrator for the 

Office of Congressional and Intergovernmental Relations, at ganesan.arvin@epa.gov or (202) 564-

4741.

fsa P. Jackson 

Administrator