June 8, 2012

The Honorable Mathy Stanislaus

Assistant Administrator

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

Ariel Rios Federal Building

1200 Pennsylvania Ave., NW

Washington, DC 20460

Re: The Regulatory Status of Gases that are not Contained in a Container

Dear Assistant Administrator Stanislaus: 

We would like to bring to your attention an issue of significant concern to all of the undersigned 

representatives of manufacturing facilities, energy generation facilities, waste management

facilities, and wastewater treatment plants. We recently learned that EPA is refusing to advise 

state regulators that gases that are not contained in a container are not solid wastes, 

notwithstanding the Agency’s long-standing position that such gases are not solid wastes; the 

April 13, 2011, letter from Suzanne Rudzinski, Director, Office of Resource Conservation and 

Recovery to Tim Hunt, American Forest & Paper Association; and the preamble discussion of 

this issue in the December 23, 2011, Reconsideration and Proposed Amendments to the 

Commercial and Industrial Solid Waste Incineration (CISWI) Rule and the Non-Hazardous 

Secondary Materials (NHSM) Rule.

EPA created confusion over the regulatory status of gases that are not contained in a container in 

a response to comments document accompanying the March 2011 NHSM Rule. Realizing its 

mistake, EPA clarified the status of such gases in both the April 13, 2011 letter and the 

December 23, 2011, preamble. In these documents, EPA affirmatively states that the “burning of 

gaseous material, such as in fume incinerators (as well as other combustion units, including air 

pollution control devices that may combust gaseous material) does not involve treatment or other 

management of a solid waste (as defined in RCRA section 1004(27).” 

Following release of the April 13, 2011 letter, the regulated community thought the issue of what 

is a contained gas was settled. However, we now learn that it may not be. Notwithstanding this 

letter, it is our understanding that EPA has refused to clarify to North Carolina air pollution 

control regulators that the burning of gaseous fuel derived from landfill gas and the combustion 

of gases in flares is not the burning of a solid waste. As a result, North Carolina has determined 

that such burning may be the combustion of a solid waste, suggesting that a flare would have to 

meet CISWI standards and a gaseous fuel would have to meet the processing and legitimacy 

criteria of the NHSM Rule. 
The Honorable Mathy Stanislaus

June 8, 2012

Page 2

For example, in addition to confusion over permits for landfills, we are aware of one title V 

permit application for a flare in North Carolina that has been halted over this issue. The subject 

permit application is for temporary short-term incineration of HVLC gases (2-3 weeks). Without 

an alternative source of control during this one-time maintenance event, the facility would have 

to cease operation and the cost of lost production revenue could be as much as $6 million. Add 

to that the repercussions of potential loss of customers looking elsewhere for product when the 

manufacturing facility is down and the effects could be permanent. Further, if the state extends 

its new interpretation of “contained gaseous materials” to the primary units that control these 

types of gases, then facilities all over the state may have to shut down. Finally, if this state and 

others apply the same interpretation to all combustion of gases, the implications across all 

manufacturing sectors will be enormous. See the attached email exchanges with North Carolina 

regulators. 

Also attached is a May 2, 2012 Questions and Answers document that is posted on the North 

Carolina web site. As you can see from this document, North Carolina relies on both an August 

5, 2011, letter from Suzanne Rudzinski to Sue Briggum of Waste Management, as well as the 

response to comments document accompanying the March 21, 2011 Non-Hazardous Secondary 

Materials Rule to reach the conclusion that gases that are not contained in a container may still 

be solid wastes. The attached documents highlight the importance of clarifying that all gases are 

not solid wastes unless combusted while in a container. EPA needs to clarify that this is the 

position of the Agency not only under the Clean Air Act, but also under RCRA. 

Please be aware that EPA’s unwillingness to provide clarification to state regulators regarding 

the RCRA status of gaseous materials is an issue that goes far beyond landfill gas. As 

demonstrated by the reaction of North Carolina regulators, discussed above, a statement by EPA 

that one gas that is not contained in a container is a solid waste brings into question the status of 

all such gases, and the regulatory status of the units in which they are combusted. 

It is our understanding that some at EPA have attempted to distinguish landfill gas from other 

uncontained gases by referencing the attached March 6, 1986, letter from Marcia Williams, 

Director, Office of Solid Waste, to Mr. Lanier Hickman, Executive Director, Governmental 

Refuse Collection and Disposal Association. However, that letter provides no basis for an EPA 

determination that landfill gas is a solid waste when combusted. In fact, in Volume U of the 

RCRA Definition of Solid Waste Compendium, this letter is included in the subtopic “uncontained gases” so it is clear that EPA has not interpreted this letter as authority for determining 

that landfill gas is solid waste.

Instead, the 1986 letter responds to a question regarding the regulation of gaseous emissions 

from both hazardous and non-hazardous waste landfills. The letter asserts the authority to 

regulate such emissions, relying on 3004(n) and 4004(a) of RCRA. 

Section 3004(n) is stand-alone authority for EPA to promulgate regulations controlling air 

emissions from hazardous waste treatment, storage, and disposal (TSD) facilities. This section 

of RCRA does not identify such emissions as solid wastes and the authority granted under this 
The Honorable Mathy Stanislaus

June 8, 2012

Page 3

section of the statute is completely independent of EPA’s authority over solid wastes. EPA 

regulations promulgated under this authority do not purport to identify gases as solid wastes. 

Section 4004(a) is stand-alone authority for EPA to promulgate regulations establishing criteria 

for sanitary landfills. This section of RCRA does not discuss gaseous emissions, much less 

identify them as solid wastes. EPA regulations promulgated under this section of RCRA require 

the control of explosive gases and compliance with the Clean Air Act. They do not purport to 

identify gases as solid wastes. If EPA now believes that this section of RCRA represents a 

determination that gases generated in landfills are solid wastes, then landfills would have to 

cease flaring methane gas, unless the flares comply with the 2000 CISIW Rule. 

This issue has enormous consequences for the undersigned sectors of our nation’s economy. 

Thousands of facilities are operating today based on EPA’s interpretation of the definition of 

contained gaseous material in the April 13, 2011, letter to Tim Hunt. This interpretation is now 

being called into question and EPA cannot let the present ambiguity continue. Should EPA 

define a gas that is not in a container a solid waste, then EPA will shut down significant portions 

of the manufacturing sector, disrupt the management of sanitary landfills and wastewater 

treatment plants, and potentially eliminate the future ability of communities and facilities to 

derive energy from landfill gas as well as biogas generated during wastewater treatment. The 

same consequences will result from EPA inaction and refusal to clarify what constitutes a 

contained gas. 

Given the fact that this issue is impacting pending permit applications, we respectfully urge you 

to immediately make it clear to state regulators and the regulated community in the forthcoming 

CISWI and NHSM rules that, for all gases, neither a combustion device nor a conveyance such 

as a pipe or duct that delivers gas to a combustion device constitutes a container, and that a gas 

that is not contained in a container cannot be considered a solid waste under RCRA and is not 

subject to regulation under the Clean Air Act Section 129 incinerator rules when combusted. 

Thank you for your consideration of this issue. 

Sincerely, 

American Chemistry Council

American Coke and Coal Chemicals Institute 

America Forest & Paper Association

American Foundry Society

American Iron and Steel Institute

American Petroleum Institute

American Wood Council

Brick Industry Association

Celanese Corp.

Council of Industrial Boiler Owners 

Delaware Solid Waste Authority
The Honorable Mathy Stanislaus

June 8, 2012

Page 4

KapStone Paper and Packaging Corporation

Manufacturers and Chemical Industry Council of North Carolina

National Association of Clean Water Agencies

National Solid Wastes Management Association

Portland Cement Association

Rubber Manufacturers Association 

The County Sanitation Districts of Los Angeles County

Utility Solid Waste Activities Group

Waste Management

cc: Robert Perciasepe, EPA

Suzanne Rudzinski, EPA

James Berlow, EPA

Peter Tsirigotis, EPA

David Cozzie, EPA

Kevin Neyland, OMB

Dominic Mancini, OMB

Kevin Bromberg, SBA

Attachments:

NC Email on Landfill Gas, April 26, 2012 from Sheila Holman

NC Landfill Gas Q&A, May 2, 2012

NC Email on Flares, June 1, 2012 from Donald Vandervaart