American Environmental Hea lth Studies Project (AEHSP) 

### · Arbor Hill Environmental Justice Corp. 

### · Blue Ridge
Environmental Defense League 

### · Buckeye Environmental Network 

### · California Safe Schools 

### · Central Texas Zero

Waste Alliance 

### · Chemical Weapons Working Group 

### · Citizens Against Ruining the Environment (C.A.R.E.) 

### · Citizen's Coalition for a Safe Community 

### · Citizens' Environmental Coalition 

### · Citizens for a Clean Environment 

### · Citizens for a Clean Environment, Inc

. 

### · Citizens for Environmental Justice 

### · Citizens League for Environmental

Action Now 

### · Clean Air Coalition of WNY 

### · Clean Air Council 

### · Clean New York 

### · Clean Water and Air Matter 

### ·

Coalition for Clean Air 

### · Coalition for a Safe Environment 

### · Community Advocates for Safe Emissions (CASE) 

### · Community In-Powerment and Development Association 

### · Connecticut Fund for the Environment 

### · Don't Waste
Arizona, Inc. 

### · Dooda (NO) Desert Rock 

### · Downwinders at Risk 

### · Earth Island Institute 

### · Earthjustice 

### · El Comite
para el Bienestar de Earlimart 

### · Empire State Consumer Project 

### · Environment and Human Health, Inc. 

### ·

Environmental Justice Resource Center 

### · Finger Lakes Zero Waste Coalition 

### · For a Better Bronx 

### · Gaia Defense
League 

### · Galveston-Houston Association for Smog Prevention Mothers for Clean Air 

### · GASP/Groups Allied to
Stop Pollution 

### · Global Alliance for Incinerator Alternatives 

### · GrassRoots Recycling Network 

### · Green Delaware 

### ·

Greenaction for Health and Environmental Justice 

### · Greenwich Citizens Committee, Inc 

### · Group Against Smog and
Pollution, Inc. 

### · Haverhill Environmental League 

### · Huron Environmental Activist League 

### · Illinois Citizens for

Clean Air & Water 

### · Kentucky Environmental Foundation 

### · Kentucky Resources Council, Inc. 

### · Legal
Environmental Aid Foundation (LEAF) of Indiana, Inc. 

### · Local Action Columbia 

### · Louisiana Environmental Action
Network/Lower Mississippi Riverkeeper 

### · Mercury Free Wisconsin 

### · Michigan Citizens Against Toxic Substances
(MCATS) 

### · Michigan Energy Alternatives Project 

### · Montanans Against Toxic Burning 

### · Natural Resources
Defense Council (NRDC) 

### · NC Coastal Federation 

### · Neighbors Against the Burner 

### · Neighbors for Neighbors 

### · New York Public Interest Research Group (NYPIRG) 

### · North Channel Concerned Citizens Against Pollution 

### ·

Northwest Environmental Advocates 

### · Oregon Chapter of Physicians for Social Responsibility 

### · Parents Against

Lindane 

### · Protect All Children's Environment 

### · Puerto Rico College of Physicians and Surgeons, Environmental and

Public Health Committee 

### · Residents for Alternative Trash Solutions (RATS!) 

### · Respiratory Health Association of
Metropolitan Chicago 

### · Safe Food and Fertilizer 

### · SEED (Sustainable Energy & Economic Development)

Coalition 

### · Selkirk, Coeymans, Ravena Against Pollution (SCRAP) 

### · Sevier Citizens for Clean Air and Water, Inc. 

### ·

Sierra Club 

### · Silicon Valley Toxics Coalition 

### · Sound Resource Management 

### · Sugar Law Center for Economic &

Social Justice 

### · T.e.j.a.s 

### · Texas Campaign for the Environment 

### · Tri-Valley CAREs 

### · Valley Watch, Inc. 

### · W.
Haywood Burns Environmental Education Center 

### · Waste Not 

### · Waste Not! Frederick 

### · WE CAN! Working
Effectively for Clean Air Now 

### · West Valley Citizens Air Watch 

### ·

August 18, 2009

Assistant Administrator Mathy Stanislaus Office of Solid Waste and Emergency Response U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460

Dear Assistant Administrator Stanislaus:

Communities across the country, including the heavily impacted communities of Baton Rouge, Louisiana; Port Arthur, Texas; and Wilmington, California need your help. Residents of these communities, including members of our organizations and their ch ildren, already are exposed to far more than their fair share of toxic air pollu tion, and suffer from elevated rates of cancer,asthma, and other devastating adverse health e ffects as a result. Greatly exacerbating this problem are thousands of commercial and industrial facilities that burn waste

― including discarded tires, solvents , and industrial sludges

― in facilities that operate right next to homes, churches, schools, and playgrounds.

Congress intended all facilities that burn waste to meet the Clean Air Act’s highly protective requirements for controlling the pollution that wa ste combustion generates. Yet almost twenty years after those provisions were enacted, the co ntrols they require are still not in place.

We know that powerful industry groups would lik e to keep this loophole as it is. They are strongly recommending that EPA issue a definition of non-hazardous “solid waste” under the Solid Waste Act that will permanently exempt thousands of waste combustion units from Clean Air Act requirements. We urge you to resist these groups’ pressure and issue a definition of solid waste that respects both the Solid Waste Ac t and the Clean Air Act and that provides our communities with long-overdue protection from the toxic effects of unregulated waste
incineration. We believe that this issue is one where fundament al principles of environmental justice are at play.

BACKGROUND

Non-Hazardous Solid Waste Incineration At Commercial And Industrial Facilities.

Across the country, thousands of commercial an d industrial facilities burn wastes, including tires, tire chips, waste coal, spent solvents, used oil, plastics and indus trial sludges. Some of these wastes contain significantly higher levels of mercury, lead, chromium, zinc, and other toxic metals than fossil fuels contain. Some contain highe r levels of chlorine. Further, some are more difficult to burn than fossil fuels, and facilitie s that use them do not achieve the degree of
combustion that could be achieved with fossil fuel s. Consequently, the f acilities that burn these wastes emit more hazardous air pollutants and more particulate matter. In particular, they emit more toxic metals such as mercury, lead and ch romium, more toxic organic pollutants such as dioxins, polychlorinated biphenyls, polyaromatic hydrocarbons, ben zene, and styrene, and more hydrochloric acid. Community residents, includi ng children, are exposed to this toxic pollution and its effects on a daily basis.

Legal Background.

The need for your office to promulgate a defini tion of non-hazardous solid waste stems not from
the Solid Waste Act but from the Clean Air Act. The Clean Air Act defines as a “solid waste incineration unit” any facility th at burns any solid waste and, for these units, it requires EPA to set special standards tailored to control the pollu tion that burning waste generates. The Clean Air Act then provides that “solid waste” shall have the meaning established by EPA under the Solid Waste Act, an approach intended to provide for consistent approaches to solid waste and
solid waste incineration under both statutes.

Under the Bush administration, EPA attempted to ex empt facilities that burn waste at industrial and commercial plants from the Clean Air Act’ s incinerator requirements by defining industrial
and commercial waste incineration units to exclud e facilities that allege dly recover energy from

2waste combustion. The D.C. Circuit held EPA’s action to be flatly unlawful, finding that the Clean Air Act unambiguously requires incinerator st andards for any facility that burns any solid waste regardless of whether it recovers energy. NRDC v. EPA , 489 F.3d 1250, 1257-1258 (D.C. Cir. 2007). The Court noted in pa rticular that by expressly enum erating the four types of unit that it wanted to exempt from § 129 standards (hazardous waste combustors, metals recovery facilities, certain “qualifying” small power production and co-gener ation facilities, and some “air curtain incinerators”) Congress had made entirel y clear that it did not intend EPA to create a broader exemption. Id. at 1255, 1258.

EPA’s unlawful definition led the D.C. Circuit to vacate two Clean Air Act rules that are crucial to protecting the public from toxic air pollution: (1) EPA’s § 112 rule to control emissions of hazardous air pollutants from industrial and comme rcial boilers and process heaters; and (2) EPA’s § 129 rule to control emissions from commercial and industr ial incinerators. Id. at 1262. Significantly, Congress required EPA to issue th e former rule by November 15, 2000 and the latter by November 15, 1994. By November 15, 2009, Americans will have been deprived of the protection that Congress intended th ese rules to provide for nine and fifteen years respectively. As a result, their exposure to toxic pollution — and to the risk of cancer, birth defects and other devastating adverse health eff ects such pollution can cause — ha s been greatly prolonged and
increased.

Need For A Definition Of Solid Waste That Respects Congress’ Intent.

Now EPA needs to promulgate a definition of solid waste under the Solid Waste Act, something it has never done, so that the agency can determin e which commercial and industrial facilities are incinerators subject to regulation under the Clean Air Act’ s incinerator provisions in § 129 and which are subject to regulation under the Act’s general provisions for hazardous air pollutants in § 112. To a large extent, your decision on this issue will determine whether the toxic pollution from waste burning facilities is ad equately controlled. Accordingl y, it is crucial that you issue a protective definition of solid waste that implemen ts Congress’ intent in both the Clean Air Act
and the Solid Waste Act.

The most important difference between § 112 a nd § 129 is that § 129 requires protective
“MACT” standards for all facili ties that combust solid waste wh ereas § 112 requires protective MACT standards only for “major” sources. Signif icantly, the major source threshold in § 112 is very high. A source is “major” onl y if it has the potential to emit ten tons per year of any single hazardous air pollutant (HAP) or twenty-five tons per year of any combination of HAPs, considering controls. Thus, ma ny major industrial opera tions that are significant and dangerous sources of toxic pollution are not “major” under § 112, and MACT standards are not required for them. In particular, it is likely that thousands of boilers and pr ocess heaters are being used to burn waste and allegedly generate energy at chemical plants, paper mills, and other significant industrial polluters that fall shor t of the major source threshold.

There are other important differences as well. All standards under § 129 mu st be reviewed after promulgation to ensure that they adequately protect public health bu t, under § 112, only MACT standards need to be reviewed. In addition, st andards under § 129 must (1) require monitoring of actual emissions as necessary to protect publ ic health and the environment; (2) include requirements for operator training and certificat ion and prohibit the ope ration of sources by

3people who have not met these requirements; and (3), establish siting requirements for any new facilities that will minimize potenti al risks to public health and th e environment on a site specific basis. Section 112 does not require any of these safeguards.

Congress was well aware of the differences between § 129 and § 112 when it enacted both provisions in the Clean Air Act amendments of 1990. In particular, Congress was aware of the extraordinary threats to public health and the en vironment that burning wa stes presents, and it enacted § 129 to address these threats. As noted above, Congress made entirely clear that it did not intend to exempt facilities that burn waste from § 129 standards merely because they allegedly recover energy from the process.

EPA has not yet proposed a definition of non-hazar dous solid waste but, in the last days of the Bush administration, the agency issued an a dvanced notice of proposed rulemaking (ANPRM) that essentially sought to circumvent the D.C. Ci rcuit’s decision and recreate the exemption from § 129 requirements for units that burn waste for energy recovery. We urge you to abandon that ANPRM and to propose a definition of solid waste that respects C ongressional intent in both the
Clean Air Act and the Solid Waste Act.

Although we do not wish to focus on the ANPRM in this letter, we note that it advances two types of argument for the overly narrow defin ition of solid waste that it provides: (1) policy arguments regarding the benefits of burning wast e for energy recovery; and (2) legal arguments about how that definition allegedly can be squared with the definition of solid waste in the Solid

Waste Act.

The policy arguments in the ANPRM are squarely at odds with Congre ss’ plainly expressed
intent in the Clean Air Act. Furt her, they ignore the very real injury that burning waste without § 129’s protections does to people living in communities across America.

In addition, the policy arguments in the ANPRM i gnore that many of the wastes at issue can be recycled rather than burned. Recycling such wastes in permitted facilities does not damage public health and the environment to the same degree as burning them. Yet, by effectively exempting the burning of solid wastes from the Cl ean Air Act protections that Congress intended to govern such burning, the solid waste defini tion in the ANPRM woul d create incentives for burning and disincentives for recycling efforts.

Finally, the legal arguments in the ANPRM are not that the Solid Waste Act requires the
ANPRM’s narrow definition of solid waste but mere ly that it gives EPA discretion to issue such a narrow definition. We strenuously disagree th at the ANPRM definition comports with the Solid Waste Act or the Clean Air Act. But EPA – at a minimum – has discretion to promulgate a definition of solid waste that is more protective of public health, more en couraging of recycling,
and more in accord with the Congressional intent underlying § 129 of the Clean Air Act.

The undersigned groups are glad that EPA is, once again, under leadership that shares our goals of vigorously protecting public health and the en vironment, respects science, and respects our
nation’s environmental laws. We understand that EPA has heard extensively and almost exclusively from interests who want a narrow de finition of non-hazardous solid waste that will

4maximize the types of waste burning that can be exempted from Clean Air Act § 129 controls. We wish to convey the extraordinary importan ce of this issue to many communities, including communities already facing acute environmental just ice concerns. We would like to meet with you to provide our perspective on how a more prot ective definition of solid waste would protect public health and better serve the purposes of the Clean Air Act and the Solid Waste Act.

Sincerely,

Nancy Alderman Kathy Andria American Bottom Conservancy Fairview Heights, Illinois Environment and Human Health, Inc. North Haven, Connecticut

Bradley Angel Brent Baeslack Haverhill Environmental League Haverhill, Massachusetts Greenaction for Health and Environmental
Justice San Francisco, California

Nidia Bautista Nina Bell
Northwest Environmental Advocates Portland, Oregon Coalition for Clean Air Sacramento, California

John Blair Becky Bornhorst and Sue Pope
Downwinders at Risk Dallas, Texas Valley Watch, Inc. Evansville, Indiana

Katherine Bourbeau Judy Braiman Empire State Consumer Project Rochester, New York Finger Lakes Zero Waste Coalition Geneva, New York

Stephen M. Brittle El Brown Don't Waste Arizona, Inc. Dooda (NO) Desert Rock Chaco Rio, New Mexico Phoenix, Arizona

Travis Brown Robert D. Bullard
Environmental Justice Resource Center Atlanta, Georgia Neighbors for Neighbors Lexington, Texas

Suzie Canales Linda Christopher GrassRoots Recycling Network Cotati, California Citizens for Environmental Justice Corpus Christi, Texas

Nancy E. Cohen Ellen Connett St. Paul/Minneapolis, Minnesota Waste Not Canton, New York

5Paul Connett, PhD Tammy Cromer-Campbell WE CAN! Working Effectively for Clean Air

Now Longview, Texas American Environmental Health Studies Project (AEHSP) Canton, New York

Elizabeth Crowe Kathleen A. Curtis
Clean New York Albany, New York Kentucky Environmental Foundation Berea, Kentucky

Sheila Davis Teresa DeAnda El Comite para el Bienestar de Earlimart Earlimart, California Silicon Valley Toxics Coalition San Jose, California

Danielle Diamond Joyce M. Eden West Valley Citizens Air Watch Cupertino, California Illinois Citizens for Clean Air & Water Crystal Lake, Illinois

Marian Feinberg Kim Ferraro

For a Better Bronx Legal Environmental Aid Foundation (LEAF) of Indiana, Inc. Valparaiso, Indiana Bronx, New York

Paul V. Ferrazzi Tom FitzGerald Kentucky Resources Council, Inc. Frankfort, Kentucky Citizen's Coalition for a Safe Community Culver City, California

William Freese Tracy Frisch Greenwich Citizens Committee, Inc Greenwich, New York Huron Environmental Activist League Alpena, Michigan

Joseph A. Gardella, Jr., PhD Mike Giles Buffalo, New York NC Coastal Federation Wilmington, North Carolina

Stacy Guidry Karen Hadden
Central Texas Zero Waste Alliance SEED (Sustainable Energy & Economic Development) Coalition Austin, Texas Austin, Texas

Laura Haight Tomas Hernandez, MD
New York Public Inte rest Research Group (NYPIRG) Puerto Rico College of Physicians and Surgeons, Environmental and Public Health
Committee San Juan, Puerto Rico Albany, New York

6Nancy Hone Jackie James-Creedon
Clean Air Coalition of WNY Kenmore, New York Neighbors Against the Burner St. Paul, Minnesota

Carroll Johnston Tom Karas Portland, Oregon Michigan Energy Alternatives Project Traverse City, Michigan

Hilton Kelley Marylia Kelley Tri-Valley CAREs Livermore, California Community In-Powerment and Development
Association Port Arthur, Texas

John A. Knox Elyse Kunz and Elyse Griffin
Earth Island Institute Community Advocates for Safe Emissions (CASE) Ravena, New York Berkeley, California

Pamela LaBrake Karla Land Parents Against Lindane North Channel Concerned Citizens Against
Pollution Channelview, Texas Schenectady, New York

Susan Lawrence Erma Leaphart Albany, New York Detroit, Michigan

Aaron Mair Jesse N. Marquez Arbor Hill Environmental Justice Corp. Coalition for a Safe Environment Wilmington, California Albany, New York

Patricia Anne Martin Lorrie McDonald GASP/Groups Allied to Stop Pollution Wilmer, Texas Safe Food and Fertilizer Quincy, Washington

David Mickey and Louis Zeller Teresa Mill Blue Ridge Environmen tal Defense League Buckeye Environmental Network Columbus, Ohio Glendale Springs, North Carolina

Joseph Miller, Ph.D. Vernice Miller-Travis Bowie, Maryland Oregon Chapter of Physicians for Social Responsibility Portland, Oregon

Joseph Otis Jeffrey Morris, PhD
Minott Clean Air Council Sound Resource Management Olympia, Washington Philadelphia, Pennsylvania

7Alan Muller Renee Nelson
Green Delaware Clean Water and Air Matter Bakersfield, California Port Penn, Delaware
Colin O'Brien James O'Kennon Sevier Citizens for Clean Air and Water, Inc. Richfield, Utah Natural Resources Defense Council (NRDC) New York, New York

Elizabeth M.T. O'Nan Marylee M. Orr
Protect All Children's Environment Louisiana Environmental Action Network/Lower Mississippi Riverkeeper Baton Rouge, Louisiana Marion, North Carolina

Joe Osborne Jane Owen Group Against Smog and Pollution, Inc. Citizens League for Environmental Action

Now Houston, Texas Pittsburgh, Pennsylvania

Juan Parras Kirstie L. Pecci T.e.j.a.s Residents for Alternative Trash Solutions (RATS!) Southbridge, Massachusetts Houston, Texas

Cathy Pedler James S. Pew Earthjustice Washington, D.C. Gaia Defense League Erie, Pennsylvania

John C. Philo Ellen Meeks Rendulich Sugar Law Center for Economic & Social
Justice Citizens Against Ruining the Environment (C.A.R.E.) Lockport, Illinois Detroit, Michigan

Jerry Renning Roger Reynolds
Connecticut Fund for the Environment New Haven, Connecticut Michigan Citizens Against Toxic Substances (MCATS) Milan, Michigan

Robin Schneider Robin Sherwood
Citizens for a Clean Environment Goliad & Victoria Counties, Texas Texas Campaign for the Environment Austin, Dallas, & Houston, Texas

Marti Sinclair Sierra Club Sally Sorbello San Francisco, California Waste Not! Frederick Frederick, Maryland

8Robina Suwol Jennifer and Will Swearingen Montanans Against Toxic Burning Bozeman, Montana California Safe Schools Toluca Lake, California

Christian Sweningen Ananda Lee Tann
Local Action Columbia Global Alliance for Incinerator Alternatives Berkeley, California Stuyvesant, New York

Matthew S. Tejada, PhD Jeff Tittel Trenton, New Jersey Galveston-Houston Association for Smog
Prevention Mothers for Clean Air Galveston, Texas

Jim Travers Eric Uram Mercury Free Wisconsin Madison, Wisconsin Selkirk, Coeymans, Ravena Against Pollution (SCRAP) Selkirk, New York

Brian Urbaszewski Barbara Warren
Citizens' Environmental Coalition Albany, New York Respiratory Health Association of Metropolitan Chicago Chicago, Illinois

Ken Watson Craig Williams Chemical Weapons Working Group Berea, Kentucky W. Haywood Burns Environmental Education

Center Albany, New York

Cynthia Wilson Citizens for a Clean Environment, Inc. Cobleskill, New York

cc: Gina McCarthy, Assistant Administra tor, Office of Air and Radiation Steve Page, Office of Air Quality Planning and Standards: Director Robert Brenner, Office of Policy Analysis and Review: Director

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