July 19, 2012

Via e-mail ( Cortney_Higgins@omb.eop.gov )

Ms. Cortney Higgins Office of Information and Regulatory Affairs Office of Management and Budget

725 17 th Street, N.W. Washington, DC 20503

Re: NSPS and EG: Commercial and Indus trial Solid Waste In cineration Units: Reconsideration and Proposed Am endments; Non-Hazardous Secondary

Materials That Are Solid Wast e: Proposed Rule, RIN 2060-AR15

Dear Ms. Higgins:

This letter expresses my thanks on behalf of the Treated Wood Council (TWC) for your willingness to meet with us on June 11, 2012, al ong with other interested federal agency representatives, to discuss th e above-referenced rule as pa rt of the Executive Order 12,866 interagency review process.

As we said, TWC reiterates its support for the proposed rule’s (and the March 21, 2011 final rule’s) categorical non-wast e determination with respect to resinated wood. We note that EPA made this determination despite the presence of contaminants in resinated wood that are not found in traditional fuels, based on a balancing test that relies heavily on evidence that shows “the purpose of burning these wood residuals (inc luding the resins that they contain, which

themselves contribute to the heati ng value of the material) is not to destroy or discard them, as they are clearly considered and managed as a valuable commodity to the wood manufacturing process,” 76 Fed. Reg. 80,452, 80,483 (Dec. 23, 2011). As we demonstrated at our meeting, treated wood is analytically the same, and th e same categorical non-waste designation that EPA has concluded is appropriate for resinated w ood should apply equally to treated wood.

• Like resinated wood, treated wood is a sought-after fuel, and has a long track record of commercial dealings evidencing its established use for energy recovery. Attachment 1 shows that, on a consistent basis going back more than 20 years, tens of thousands – in some years we ll more than 100,000 – tons of treated wood 1111 19 th Street, NW
Suite 800 Washington, DC 20036 Phone: (202) 463-2045 Fax: (202) 463-2059have been burned annually at one co-gen plant alone for energy production. This plant has since 1989 beneficially com busted 2.3 million tons of treated wood feedstock, a volume that equals 1.6 times th e height of the Willis Tower (formerly known as the Sears Tower) in Chicago.

• Like resinated wood, treated wood is valued as a fuel because it has a high Btu level (due to low moisture content and the extra heat generated by wood treating chemicals – urea formaldehyde, phenol fo rmaldehyde, and pmd isocyanurate in the case of resinated wood, and, in the case of treated wood, creosote, pentachlorophenol, and a limite d number of other chemicals that are not among the chemicals of concern listed in the proposed rule).

• Like resinated wood, treated wood is “cl early considered and managed as a valuable commodity.” In its comments (a nd also attached to this letter), TWC submitted twelve contracts, just a small sa mple of those in place with at least 90 customers throughout the industry, do cumenting the carefully managed arrangements for receipt, handling, and co mbustion as fuel of secondary treated wood products (Attachments 2, 3, and 4). The State of Michigan’s Department of Natural Resources and Environment, in comments filed with EPA on Aug. 3, 2010, reported that in 2009, 17,625 tons of non-hazardous secondary wood products, including wood treated with pentachlorophenol or creosote, were burned in that state for energy recovery a nd were eligible for electricity renewable energy or advanced cleaner energy cred its under the State’s Clean, Renewable, and Efficient Energy Act.

• Disrupting these established, valuable commercial relationships would cause adverse economic consequences, not to mention the environmental harm that would result from diverting these dependable sources of energy recovery to landfills and replacing them with fossil fu el that would generate much higher greenhouse gas emissions.

• Even though TWC believes it has amply demonstrated that the use of treated wood for energy production is a clear-cu t example of a valuable non-waste commodity, we proposed the following language that would offer EPA extra assurance in formulating rule language that would apply to treated wood: “If the non-hazardous, secondary material is tr ansferred from the generating site or organization to the combustion site under a contractual agreement throughout its transfer, the Agency has determined that such a transfer doe s not constitute a ‘discard,’ and therefore th e secondary material is not a ‘waste’ and may be

combusted as a boiler fuel.”

For all these reasons, treated wood used in en ergy recovery is i ndistinguishable from

resinated wood – it is not discar ded and is managed as a valuable non-waste commodity. Given that EPA laid out its analysis of this kind of non-waste determina tion in the proposed rule, it is a logical outgrowth of that reasoni ng to conclude in the final rule that the same categorical nonwaste determination should apply to treated wood. Failing to do th is will not only be arbitrary and capricious, it will disrupt long-standing co mmercial arrangements that depend on treated wood secondary materials for fuel, creating inte rruptions in fuel supplies, economic losses, needless diversion of valuable fuel to landfills, increased greenhouse gas emissions, and potential job losses.I would appreciate it if you w ould share this letter with th e other federal officials who attended the meeting, as I do not have e-mail addre sses for most of them. Please let me know if you have any questions.

Sincerely,

Jeffrey T. Miller

President and Executive Director

Att. cc: James Berlow ( berlow.jim@epa.gov ) Kevin Bromberg ( kevin.bromberg@sba.gov )