American Environmental Health 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 children, already are exposed to 

far more than their fair share of toxic air pollution, and suffer from elevated rates of cancer, 
asthma, and other devastating adverse health effects 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 waste combustion generates. Yet almost twenty 

years after those provisions were enacted, the controls they require are still not in place. 

We know that powerful industry groups would like 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 Act 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 fundamental principles of environmental 

justice are at play. 

BACKGROUND 

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

Across the country, thousands of commercial and industrial facilities burn wastes, including 

tires, tire chips, waste coal, spent solvents, used oil, plastics and industrial sludges. Some of 

these wastes contain significantly higher levels of mercury, lead, chromium, zinc, and other toxic 

metals than fossil fuels contain. Some contain higher levels of chlorine. Further, some are more 

difficult to burn than fossil fuels, and facilities that use them do not achieve the degree of 

combustion that could be achieved with fossil fuels. Consequently, the facilities 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 chromium, more toxic organic pollutants such as 

dioxins, polychlorinated biphenyls, polyaromatic hydrocarbons, benzene, and styrene, and more 

hydrochloric acid. Community residents, including children, are exposed to this toxic pollution 

and its effects on a daily basis. 

Legal Background. 

The need for your office to promulgate a definition 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 that burns any solid waste and, for these units, it requires EPA to 

set special standards tailored to control the pollution 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 exempt 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 exclude facilities that allegedly recover energy from 

2
waste combustion. The D.C. Circuit held EPA’s action to be flatly unlawful, finding that the 

Clean Air Act unambiguously requires incinerator standards 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 particular that by expressly enumerating 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-generation facilities, and some “air 

curtain incinerators”) Congress had made entirely 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 commercial boilers and process heaters; and (2) 

EPA’s § 129 rule to control emissions from commercial and industrial incinerators. Id. at 1262. 

Significantly, Congress required EPA to issue the 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 these 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 effects such pollution can cause — has 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 determine 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 adequately controlled. Accordingly, it is crucial that you issue a 

protective definition of solid waste that implements Congress’ intent in both the Clean Air Act 

and the Solid Waste Act. 

The most important difference between § 112 and § 129 is that § 129 requires protective 

“MACT” standards for all facilities that combust solid waste whereas § 112 requires protective 

MACT standards only for “major” sources. Significantly, the major source threshold in § 112 is 

very high. A source is “major” only 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, many major industrial operations 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 process heaters are being used to 

burn waste and allegedly generate energy at chemical plants, paper mills, and other significant 

industrial polluters that fall short of the major source threshold. 

There are other important differences as well. All standards under § 129 must be reviewed after 

promulgation to ensure that they adequately protect public health but, under § 112, only MACT 

standards need to be reviewed. In addition, standards under § 129 must (1) require monitoring of 

actual emissions as necessary to protect public health and the environment; (2) include 

requirements for operator training and certification and prohibit the operation of sources by 

3
people who have not met these requirements; and (3), establish siting requirements for any new 

facilities that will minimize potential risks to public health and the 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 environment that burning wastes 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-hazardous solid waste but, in the last days of the 

Bush administration, the agency issued an advanced notice of proposed rulemaking (ANPRM) 

that essentially sought to circumvent the D.C. Circuit’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 Congressional 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 definition of solid waste that it provides: (1) policy 

arguments regarding the benefits of burning waste 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 Congress’ plainly expressed 

intent in the Clean Air Act. Further, 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 ignore 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 Clean Air Act protections that Congress intended 

to govern such burning, the solid waste definition in the ANPRM would 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 merely that it gives EPA discretion to issue such 

a narrow definition. We strenuously disagree that 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 encouraging 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 environment, 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 definition of non-hazardous solid waste that will 

4
maximize the types of waste burning that can be exempted from Clean Air Act § 129 controls. 

We wish to convey the extraordinary importance of this issue to many communities, including 

communities already facing acute environmental justice concerns. We would like to meet with 

you to provide our perspective on how a more protective 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 

Phoenix, Arizona Chaco Rio, New Mexico 

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 

5
Paul 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 Interest Research Group 

(NYPIRG) 

Puerto Rico College of Physicians and 

Surgeons, Environmental and Public Health 

Committee 

San Juan, Puerto Rico 

Albany, New York 

6
Nancy 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 

Albany, New York Wilmington, California 

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 Environmental Defense League Buckeye Environmental Network 

Glendale Springs, North Carolina Columbus, Ohio 

Joseph Miller, Ph.D. Vernice Miller-Travis 

Oregon Chapter of Physicians for Social Bowie, Maryland 

Responsibility 

Portland, Oregon 

Joseph Otis Jeffrey Morris, PhD 

Minott Clean Air Council Sound Resource Management 

Philadelphia, Pennsylvania Olympia, Washington 

7
Alan Muller Renee Nelson 

Green Delaware Clean Water and Air Matter 

Port Penn, Delaware Bakersfield, California 

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.) 

Detroit, Michigan Lockport, Illinois 

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 

8
Robina 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 

Stuyvesant, New York Berkeley, California 

Matthew S. Tejada, PhD Jeff Tittel 

Galveston-Houston Association for Smog Trenton, New Jersey 

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 Administrator, 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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