UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

______________________________ 

 ) 

Identification of Non-Hazardous ) 

Materials That Are Solid Waste ) 

 ) 

Advance Notice of Proposed ) Docket ID No. 

Rulemaking ) EPA-HQ-RCRA-2008-8758-5 

 ) 

74 Fed. Reg. 41 ) 

(January 2, 2009) ) 

______________________________) 

COMMENTS OF EARTHJUSTICE AND SIERRA CLUB 

I. INTRODUCTION. 

EPA’s upcoming rulemaking to define non-hazardous solid waste will determine the 

extent to which communities will be protected from the toxic pollution emitted by tens of 

thousands of on-site incinerators at commercial and industrial facilities. The advance notice of 

proposed rulemaking (ANPRM) addressed here would exclude vast quantities of waste and 

exempt scores of thousands of incinerators from Clean Air Act requirements that Congress 

enacted to protect public health and the environment from the toxic emissions that waste 

incineration generates. 

 The ANPRM would exclude, among other things, scrap tires, scrap plastics, spent 

solvents, used oil, chemical laden paper mill sludges, waste water treatment sludges, chemically 

treated wood waste, demolition waste, agricultural wastes covered in pesticides, and waste coal. 

74 Fed. Reg. 41, 45 (January 2, 2009). Scores of thousands of industrial facilities that burn these 

wastes would be exempted from meeting the incinerator requirements of Clean Air Act § 129, 

and the communities in which these facilities operate would be deprived of key siting, 

monitoring, and operator training requirements that § 129 provides. 42 U.S.C. § 7429(a)(3) 

(siting); § 7429(c) (emissions monitoring); § 7429(d) (operator training). Exempting waste 

burners from siting requirements would mean that any new facility – or any one of more than 

100,000 existing units at industrial facilities across the country – could start burning tires or other 

wastes across the street from an elementary school without going through any siting analysis or 

even informing members of the public about the new source of toxic pollution to which their 

children would be exposed. Exempting these facilities from emissions monitoring requirements 

would mean that the identity and quantity of waste burners’ emissions would be unknown to 

government and the public and that enforcement of emission standards would be practically 

impossible. Exempting sources from operator training requirements would mean that 

unqualified operators would be in control of facilities that emit significant quantities of toxic 

pollution even when operating perfectly. The Federal Advisory Committee on Combustion 

(Integrated Combustion Coordinated Rulemaking FACA) identified good combustion practices 

(GCP) as a key control technology to reduce the emissions of hazardous air pollutants from 

combustion units. Those practices cannot be maintained by operators that are not highly trained. 
Combustion units have the potential to emit far greater quantities of hazardous air pollutants if 

they are operated improperly. 

 Thousands more waste-burning facilities would be exempted from any meaningful 

emission standards. The Clean Air Act requires control of air toxics through just two provisions: 

the incinerator requirements in § 129 and the requirements for hazardous air pollutant control in 

§ 112. Although § 129 requires protective emission standards for all facilities that combust any 

solid waste material, § 112 requires such standards only for “major” sources with the potential to 

emit 10 tons per year or more of any single hazardous air pollutant (HAP) or 25 tons per year or 

more of any combination of HAPs. 42 U.S.C. § 7412(a)(1), (d). Section 112 allows far less 

protective standards for “area” sources that fall below this threshold, 42 U.S.C. § 7412(d)(5), and 

the vast majority of EPA’s existing standards for area sources require little in the way of 

emission reductions, controls, monitoring, reporting, or any other measures that would protect 

the public from the effects of their toxic pollution. Remarkably, EPA has acknowledged that 

because area sources are so numerous, tend to be located near densely populated areas, and 

typically are poorly controlled, their emissions account for the lion’s share of the risk of cancer 

and other serious illness that toxic air pollution causes. By exempting area sources that burn 

waste from the Clean Air Act incinerator requirements, EPA would effectively deprive families 

in thousands of communities across America of any protection from the toxic pollution and 

devastating health risks caused by these facilities.1

 Area source waste burners also would be exempted from any obligation to inform the 

public and the government about their operations, emissions, and compliance with emission 

standards. Although § 129 requires Title V permits for all incinerators, such permits are required 

only for major sources under § 112. 

 The damage from the definition of solid waste advanced in the January 2 ANPRM would 

not necessarily stop with the direct impacts summarized above. As explained in more detail 

below, that definition is flatly unlawful as well as arbitrary, and would likely be vacated by a 

court if it were promulgated. 

 

1

 It may be suggested by advocates for the ANPRM approach that EPA could use its discretion 

under § 112 to set sufficiently protective emissions standards and other requirements for area 

sources that burn tires, used oil, and other waste. Such argument ignores that: (1) EPA already 

has issued almost all of its area sources standards and is unlikely to revise those standards in the 

near future; (2) issuing protective standards on a purely discretionary basis under Clean Air Act 

§ 112 would be far more difficult politically and practically than issuing protective standards 

expressly required by Clean Air Act § 129; and (3), reflecting that reality, the vast majority of 

EPA’s existing area source standards require little or no reductions in emissions, little if any 

monitoring, and establish no siting, permitting or operator training requirements. In short, the 

notion that because EPA theoretically can issue stronger standards for area sources under § 112, 

communities located near area source waste-burners would not be deprived of health and 

environmental protection if the definition of solid waste in the ANPRM were finalized is both 

wrong and dangerous. 

2
Crucially, the definition of solid waste suggested by the ANPRM would compromise 

both the legal and substantive integrity of EPA’s forthcoming air toxics rules for industrial and 

commercial boilers and process heaters (“Boilers Rule”) and for commercial and industrial solid 

waste incinerators (“CISWI Rule”). Clean Air Act § 129 provides that the term solid waste 

“shall have the meaning[] established by the Administrator under the Solid Waste Disposal Act” 

(“RCRA”). 42 U.S.C. § 7429(g)(6). It also makes clear that any facility that combusts any solid 

waste material at all must be regulated as an incinerator under § 129. 42 U.S.C. § 7429(a), 

(g)(1). See NRDC v. EPA, 489 F.3d 1250, 1257-1258 (D.C. Cir. 2007). Thus, EPA’s definition 

of solid waste will necessarily determine which units are regulated as incinerators and which are 

regulated as boilers. If EPA gets the definition of solid waste wrong, it may skew the population 

of units that are subject to the Boilers and CISWI rules respectively. For example, if EPA’s 

definition is underinclusive, incinerators will be classified improperly as boilers. Because 

standards under both § 129 and § 112 must be based on the actual performance of the best 

sources in the relevant category, putting the wrong sources in a category can render the standards 

for that category unlawful and result in their vacatur. That is precisely what happened in NRDC, 

250 F.3d at 1261. 

 The Boilers and CISWI rules will control the toxic air pollution from more than 100,000 

facilities. Collectively, they will represent one of the most significant air pollution control 

efforts that EPA has ever undertaken. So long as EPA defines solid waste appropriately, these 

rules will provide enormous reductions in both hazardous air pollutants and criteria pollutants, 

and will yield enormous public health benefits including lives saved, sickness and medical 

expenses avoided, and productivity preserved. 

 Both rules are long overdue. The Clean Air Act required EPA to issue its CISWI Rule no 

later than 1993 and its Boilers Rule no later than 2000. EPA has already deprived the public of 

statutorily mandated health protection for far too long, and it would be the height of 

irresponsibility for the agency to issue a legally vulnerable definition of solid waste that resulted 

in vacatur of these rules and deprived the public of their benefit for years to come. 

Unfortunately, the ANPRM’s approach to solid waste definition risks just that outcome. 

II. PREVIOUS RULEMAKINGS FOR CISWI AND BOILERS. 

EPA does not define solid waste on a clean regulatory slate. The agency’s CISWI Rule 

under Clean Air Act § 129 was due no later than November 15, 1993, and its Boilers Rule under 

Clean Air Act § 112 was due no later than November 15, 2000. Contrary to EPA’s claim in the 

ANPRM, EPA has not “fulfilled its statutory duty under CAA section 129,” 74 Fed. Reg. at 43. 

EPA’s CISWI Rule under § 129 was vacated as flatly unlawful in 2007, NRDC, 489 F.3d at 

1257-1258, and it is well established that vacatur of a rule returns EPA to a status quo where its 

statutory obligation to issue the rule is unfulfilled. Thus, more than 15 years after the statutory 

deadline, EPA still has not issued the mandated protections against toxic emissions from CISWI. 

Nor has EPA met its statutory obligation to promulgate the Boilers Rule under § 112. That rule 

was also vacated in NRDC, and is now more than nine years overdue. 

 EPA’s failure to provide statutorily mandated protections from scores of thousands of 

CISWI and boilers results from its unlawful attempts to avoid issuing § 129 standards for 

facilities that recover energy from waste combustion. When EPA first proposed § 129 standards 

3
for CISWI in 1999, the agency attempted to define solid waste under the Clean Air Act to 

exclude waste burned for energy recovery. 64 Fed. Reg. 67092 (November 30, 1999). 

Commenters pointed out that the proposed definition was unlawful and arbitrary. Comments of 

Sierra Club, California Communities Against Toxics, and Desert Citizens Against Pollution 

(“1999 Comments”), Ex. A hereto at 11-14. 

 Then, rather than either defending its solid waste definition or abandoning its attempt to 

exempt units that burn waste with energy recovery from incinerator regulations, EPA advanced 

an entirely new rationale for reaching the same result in its 2000 final CISWI rule. 65 Fed. Reg. 

75338 (December 1, 2000). Without providing any notice or opportunity for comment, the 

agency promulgated definitions of “commercial and industrial solid waste” and “commercial and 

industrial solid waste incineration unit” that excluded units that recover energy from waste 

combustion. Sierra Club challenged the rule in court, and Louisiana Environmental Action 

Network and National Wildlife Federation filed a petition for reconsideration pointing out that 

this new attempt at shielding units that burn waste with energy recovery was unlawful and 

arbitrary as well. 2001 Reconsideration Petition, Ex. B hereto, at 2. EPA granted the 

reconsideration petition. August 17, 2001 Letter from Seitz to Pew, Ex. C hereto. The agency 

also sought and obtained a voluntary remand of its CISWI Rule, representing to the court and the 

public that it “recognizes the date for establishing emission standards and related requirements 

for commercial and industrial incinerators passed in 1993” and that “EPA intends to act with all 

due speed in repromulgating” such standards. Sierra Club v. EPA, D.C. Cir. No. 01-1048, 

EPA’s Unopposed Motion For Voluntary Remand, Ex. D hereto, at 4. 

 Despite its representations, EPA did not repropose its CISWI standards until 2004, at 

which point it issued definitions of “commercial and industrial solid waste” and “commercial 

and industrial solid waste incineration unit” that were functionally the same as the unlawful ones 

issued in its 2000 Rule. 69 Fed. Reg. 7390 (February 17, 2004). Earthjustice submitted 

comments explaining again, in detail, that these definitions were unlawful and arbitrary. 

Comments of Earthjustice (2004 Comments), Ex. E hereto, at 1-8. Nevertheless, EPA issued a 

final rule with the same definitions. 70 Fed. Reg. 55568 (September 22, 2005). Because the 

agency’s definitions were unlawful for precisely the reasons explained repeatedly in comments 

that the agency chose to ignore, the CISWI and Boilers rules were both vacated in 2007. NRDC, 

489 F.3d 1257-1258, 1261. 

 For more than 15 years, EPA’s recalcitrant refusal to regulate facilities that burn waste 

and recover energy from the process as incinerators has deprived scores of thousands of 

communities across the country of much needed protection from toxic pollution. This regrettable 

history makes it all the more imperative that EPA now issue a definition of solid waste that is 

both legally defensible and protective of public health. 

III. EPA’S JANUARY 2, 2009 ANPRM. 

In the last days of the Bush Administration, EPA set out to circumvent the decision in 

NRDC by inventing yet another a rationale for exempting facilities that recover energy from 

waste burning. The agency’s ANPRM outlines an approach to defining solid waste under RCRA 

that would exclude virtually any material that can be burned for energy recovery and thus 

exempt any facility that burns such waste from meeting standards under Clean Air Act § 129. 

4
The ANPRM does not contain a suggested definition of solid waste. Rather, it provides 

several examples of “secondary materials” that EPA believed – as of January 2, 2009 – “are not 

solid wastes when combusted.” 74 Fed. Reg. at 53. These include: 

 Traditional fuels; 

 Secondary materials used as legitimate “alternative” fuels that have not 

been previously discarded; 

 Secondary materials used as legitimate “alternative” fuels resulting from 

processing of discarded secondary materials; 

 Secondary materials used as legitimate ingredients; and 

 Hazardous secondary materials that may be excluded from the definition 

of solid waste under RCRA Subtitle C because they are more like 

commodities than wastes. 

74 Fed. Reg. at 53. 

 In advancing its argument, the ANPRM essentially claims that materials that have been 

discarded in reality are not “discarded” for regulatory purposes. For example, EPA asserts that 

some whole and shredded tires that are burned in various combustion units are not “discarded” 

even though it is impossible that such tires would have arrived at any combustion unit had they 

not been discarded by the original owner who bought them for use on a car. Id. at 56. 

 EPA also makes the surprising claim that materials can be viewed as a non-waste even 

“[i]f they have been discarded.” Id. (emphasis added). In particular, EPA argues 

In many cases, the secondary material may have been discarded, but later 

processed into a legitimate fuel product or ingredient, ready for direct use in an 

industrial process. In such cases, the processed material that is extracted or 

reclaimed as a legitimate fuel or ingredient would not be a waste but rather a 

product of the reprocessing activity. 

Id. (emphasis added). For example, although the ANPRM acknowledges that used oil was 

“originally discarded,” it argues that the “fossil fuel component” of used oil can become a nonwaste again if it is “extracted from the non-fuel contaminants.” Id. at 58. Following that notion 

to its logical conclusion, EPA also seeks comment on whether discarded materials can become a 

non-waste even if they are not processed in any way. Id. at 59. 

 EPA also suggests that some hazardous wastes may not be “waste” if they are burned for 

energy recovery, citing its recent “comparable fuels” exclusion from the definition of solid 

waste, 73 Fed. Reg. 77953 (December 19, 2008)). Id. at 58-59. 

5
IV. THE EXEMPTIONS DISCUSSED IN THE ANPRM WOULD VIOLATE RCRA. 

A. The Exemptions Conflict With The Plain Meaning Of RCRA And Flout Binding 

Precedent. 

Contrary to EPA’s claims in the ANPRM, “any” material that has been “discarded” is a 

solid waste. EPA lacks statutory authority to issue a definition of “solid waste” that excludes 

such materials. 

 RCRA defines “solid waste” broadly to mean: 

any garbage, refuse, sludge from a waste treatment plant, water supply treatment 

plant, or air pollution control facility and other discarded material, including solid, 

liquid, semisolid, or contained gaseous material resulting from industrial, 

commercial, mining, and agricultural operations, and from community activities, 

but does not include solid or dissolve materials in irrigation return flows or 

industrial discharges which are not point sources subject to permits under section 

1342 of Title 33 or source, special nuclear, or byproduct material as defined by 

the Atomic Energy Act of 1954... 

42 U.S.C. § 1004(27) (emphasis added). RCRA’s use of the words “any ... other discarded 

material” makes clear that “any” material that has been “discarded” is a solid waste. 

 The caselaw confirms this point. In the lead case interpreting the term “discarded,” the 

D.C. Circuit held that “discarded” unambiguously has its “ordinary everyday sense” and refers to 

anything that has been “disposed of, abandoned, or thrown away.” American Mining Congress 

v. EPA, 824 F.2d 1177, 1192-1193 (D.C. Cir. 1987) (“AMC I”). Citing used oil as an example of 

materials that fall easily within the meaning of “discarded,” the Court explained: 

Oil recyclers typically collect discarded used oils, distill them, and sell the 

resulting material for use as fuel in boilers. Regulation of those activities is 

likewise consistent with an everyday reading of the term discarded. It is only 

when EPA attempts to extend the scope of that provision to include the recycling 

of undiscarded oils at petroleum refineries that conflict occurs. 

824 F.2d at 1187 n14. 

 In American Petroleum Inst. v. EPA, 906 F.2 729 (D.C. Cir. 1990), the D.C. Circuit 

similarly rejected EPA’s attempt to disclaim authority to regulate discarded K061 slag from 

electric arc furnaces when that slag arrived at reclamation facilities. 906 F.2d at 734. The Court 

pointed out that the slag was indisputably waste when it left the electric arc furnace and nothing 

in RCRA or AMC I required the agency to stop treating the slag as waste when it arrived at the 

reclamation facility. Id. at 741. The Court went on to remind EPA that the agency needed to 

square its interpretation of “discarded” with RCRA’s purpose of establishing a cradle-to-grave 

regulatory structure for handling hazardous waste and encouraged EPA to “recognize that it must 

comply with its statutory mandate to prescribe treatment for the disposal of K061 slag.” Id. at 

741-742. 

6
Ten years later, the D.C. Circuit confirmed the holdings in both AMC I and API, finding 

the term discarded unambiguously covers materials that have been discarded once, even if they 

are subsequently reclaimed. Ass’n of Battery Recyclers v. EPA, 208 F.3d 1047, 1054-1055 (D.C. 

Cir. 2000). Quoting from AMC I, the Court again expressly held up used oil that has been 

discarded once as an example of a material that is plainly covered by RCRA’s definition of solid 

waste regardless of whether it is subsequently reprocessed or reused. Id.

 Other Circuits have reached the same conclusion. In ILCO v. U.S., the Eleventh Circuit 

rejected an industry argument that lead parts reclaimed for recycling purposes from spent car and 

truck batteries are not waste. 996 F.2d 1126, 1130-1132 (11th Cir. 1993). The Court reasoned: 

It is unnecessary to read into the word “discarded” a congressional intent that the 

waste in question must finally and forever be discarded as ILCO seems to argue. 

It is perfectly reasonable for EPA to assume Congress meant “discarded once.” 

... Therefore, we find these batteries and their contents are “discarded” within the 

everyday sense of the word. Their secondary character as recyclable material is 

irrelevant to that determination. 

Id., 996 F.2d at 1132. The Fourth Circuit followed suit in rejecting a similar industry argument 

that slag from the steel production process was not “discarded” when it was recycled and used in 

roadbeds. Owen Electric Steel Co. v. Browner, 37 F.3d 146, 150 (4th Cir. 1994). Quoting 

ILCO’s holding on batteries, it observed 

Somebody has discarded the battery in which these components are found. This 

fact does not change just because a reclaimer has purchased or finds value in the 

components. 

Id. (quoting ILCO, 996 F.2d at 1131) (emphasis in original). 

 In light of the unambiguous language in RCRA and the plain holdings by appellate 

courts, the two main arguments in the ANPRM are baffling to say the least. Materials such as 

tires that have been discarded by their original owner are “discarded” and a definition of solid 

waste that excludes such materials would be flatly unlawful. Likewise, materials such as used 

oil that undisputedly have been “discarded” are waste regardless of whether they are 

subsequently processed into a fuel. Given that courts already have ruled on this precise issue, as 

the AMC I, API, and Ass’n of Battery Recyclers Courts all did, any attempt to exempt such 

materials would not merely flout the law but invite sanctions. Advancing statutory 

interpretations that pushed the limits of Rule 11 was a hallmark of EPA under the Bush 

administration; it is not a practice that should be condoned by the agency or its lawyers under 

this administration or ever again. 

 EPA may argue that in two cases, American Mining Congress v. EPA, 907 F.2d 1179 

(D.C. Cir. 1990) (“AMC II”) and Safe Food and Fertilizer v. EPA ̧ 350 F.3d 1263 (D.C. Cir. 

2003) (“SFAF”), the D.C. Circuit suggested that the meaning of the term discarded is ambiguous. 

EPA has made such argument before without success: 

7
EPA thinks that in light of API and AMC II, “discarded” is now ambiguous and 

thus we should defer to its interpretation. To accept EPA’s contention would be 

to conclude that two later panels of this court overruled the decision in AMC I that 

“discarded” was not ambiguous. 

Ass’n of Battery Recyclers, 208 F.3d at 1056. AMC I, API, and Ass’n of Battery Recyclers all 

make clear that the term “discarded” unambiguously has its ordinary everyday meaning and that 

this meaning encompasses materials such as used oil that are subsequently processed for reuse. 

To the extent any case subsequent to AMC I holds otherwise, it is inconsistent with this 

precedent. See, e.g. Ranger Cellular v. FCC, 348 F.3d 1048, 1049-1050 (D.C. Cir. 2003) (“Once 

a panel of this court has decided a matter, subsequent panels are bound by that decision until and 

unless it is changed by the court en banc.”). 

 Finally, even if the term “discarded” were ambiguous in some regard, such ambiguity 

would not extend to support EPA’s argument that waste which is processed and reused is not 

waste. It is precisely on this point that AMC I and its progeny have held the term is clear. 

Indeed, not even AMC II and SFAF – both of which are questionable precedent at best – suggest 

that materials such as used oil, tires and other once-discarded materials are not waste. Although 

AMC II incorrectly states that API “concluded that the term ‘discarded’ was marked by the kind 

of ambiguity demanding resolution by the agency’s delegated lawmaking powers,” it still finds 

EPA’s interpretation of “discarded” as encompassing wastewater sludges that are reused in 

mineral processing operations to be reasonable under Chevron step two. 907 F.2d at 1185-1187. 

SFAF does not purport to address once-discarded materials, but merely rejects the syllogism that 

because materials recycled within an industry are not “discarded,” materials destined for 

recycling in another industry “necessarily” are “discarded.” Id. at 350 F.3d at 1268. 

Significantly, the only decision that limits the term “discarded” is AMC I, which merely holds 

that materials “destined for beneficial reuse or recycling in a continuous process by the 

generating industry itself” are not discarded. 824 F.2d at 1186. The exemptions in the ANPRM 

go far beyond that limit. See API, 906 F.2d at 740-741 (rejecting EPA attempt to disclaim 

authority over materials that were not recycled in a continuous process by the generating industry 

itself). 

B. The Exemptions Conflict With EPA’s Prior Interpretation Of “Discarded.” 

As shown above, the term “discarded” unambiguously has its ordinary meaning, and that 

meaning precludes the exemptions from the definition of “solid waste” espoused in the ANPRM. 

Even if the term “discarded” were ambiguous, however, it is axiomatic that statutory language 

must be interpreted consistently. As the Supreme Court held in Clark v. Martinez, 

The operative language of §1231(a)(6), 'may be detained beyond the removal 

period,' applies without differentiation to all three categories of aliens that are its 

subject. To give these same words a different meaning for each category would be 

to invent a statute rather than interpret one. 

543 U.S. 371, 378 (2005) (emphasis added). 

8
The reasoning in Clark applies a fortiori here. EPA already has interpreted the term 

“discarded” to include materials that are “burned or incinerated” or “recycled” by being either 

“[b]urned to recover energy” or “used to produce a fuel or [] otherwise contained in fuels (in 

which cases the fuel itself remains a solid waste).” 40 C.F.R. § 261.2. The interpretation of 

“discarded” in the ANPRM is hopelessly inconsistent with the interpretation in 40 C.F.R. 

§ 261.2. Regardless of whether EPA believes that it can issue separate definitions of solid waste 

for hazardous waste and non-hazardous waste, “discarded” cannot be read both to include

materials that are “burned to recover energy” or “used to produce a fuel” and to exclude such 

materials. 

 

 In any event, “discarded” is a term that Congress used to delineate whether a material is a 

“solid waste,” not whether a “solid waste” is “hazardous” or non-hazardous. Classification as a 

“solid waste,” as EPA itself has long recognized, is a necessary precondition to classification as a 

“hazardous” solid waste, and a discarded material is a “solid waste” whether or not it is also 

hazardous. Therefore, even if the ANPRM’s approach to interpreting “discarded” were not 

blatantly at odds with EPA’s prior interpretation of this statutory term, the notion that EPA can 

interpret “discarded” differently for the purposes of defining hazardous and non-hazardous solid 

waste is wrong on its face. The ANPRM assumes – incorrectly and without explanation – that 

EPA may and should interpret “discarded” differently for the purposes of defining hazardous and 

non-hazardous waste. For this reason as well its approach is unlawful under Chevron step one, 

unreasonable under Chevron step two, and arbitrary and capricious. 

V. THE EXEMPTIONS DISCUSSED IN THE ANPRM WOULD VIOLATE THE 

CLEAN AIR ACT. 

 The definition of solid waste in RCRA must be interpreted in a way that does not conflict 

with the Clean Air Act or frustrate that statute’s purpose. See, e.g., Massachusetts v. EPA, 549 

U.S. 497, 538 (2007) (rejecting EPA interpretation of Energy Policy and Conservation Act that 

would have frustrated Clean Air Act’s purpose). 

 Clean Air Act § 129 makes clear that Congress intended the agency to promulgate 

protective incinerator regulations for all facilities that combust any solid waste material, 

regardless of whether such facilities recover energy from the combustion process. NRDC, 489 

F.3d at 1257-1261. Congress carefully considered which types of unit to exempt from 

incinerator regulation, and chose to exempt just four types: “(A) materials recovery facilities 

(including primary or secondary smelters)) which combust waste for the primary purpose of 

recovering metals, (B) qualifying small power production facilities, as defined in section 

796(17)(C) of Title 16, or qualifying cogeneration facilities, as defined in section 796(18)(B) of 

Title 16, which burn homogeneous waste (such as units that burn tires or used oil, but not 

including refuse-derived fuel) for the production of electric energy or in the case of qualifying 

cogeneration facilities which burn homogeneous waste for the production of electric energy and 

steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating 

or cooling purposes, or (C) air curtain incinerators provided that such incinerators only burn 

wood waste, yard wastes, and clean lumber and that such air curtain incinerators comply with 

opacity limitations to be established by the Administrator by rule.” 42 U.S.C. § 7429(g)(1). 

9
 The broad swath of exemptions contemplated in the ANPRM would conflict with and 

frustrate Clean Air Act § 129 in several ways. First, although Congress made entirely plain that 

all waste combustion units must meet § 129 standards regardless of whether they recover energy, 

the approach to solid waste definition in the ANPRM is a transparent attempt to exempt facilities 

that recover energy from § 129 standards. 

 Second, the ANPRM approach would render Congress’ enumeration of exceptions in 

§ 129(g)(1) largely superfluous. By excluding tires and used oil from the definition of solid 

waste, for example, the ANPRM would effectively eliminate any purpose or function for 

§ 129(g)(1)’s specifically tailored exemption from § 129 for units “that burn tires or used oil.” If 

Congress thought that tires and used oil were not waste, it need not have bothered to enact the 

exclusions in § 129(g)(1). 

 Third, § 129(g)(1) expressly refers to tires and used oil as “waste.” Thus, promulgating a 

definition of solid waste that excludes these materials would conflict directly with Congress’ 

intent. 

 Fourth, Clean Air Act § 129(h)(5) shows that Congress viewed the universe of “fuel” to 

consist of “waste” on the one hand and “fossil fuel” on the other. 42 U.S.C. § 7429(h)(5). It 

provides that incinerators subject to § 129 “shall not be a utility unit as defined in subchapter IVA of this chapter: Provided, That more than 80 per centum of its annual average fuel 

consumption measured on a Btu basis, during a period or periods to be determined by the 

Administrator, is from a fuel (including any waste burned as a fuel) other than a fossil fuel.” Id.

(italics in original, underscoring added). Congress was well aware that waste can be burned as 

fuel, but viewed that fact as irrelevant. The ANPRM approach would override Congress’s 

plainly expressed intent that facilities that burn non-fossil fuels and are not covered by the 

express exclusions in § 129(g)(1) meet § 129 incinerator standards. It also would drastically 

curtail the universe of wastes and waste-burning facilities that Congress intended § 129 to cover. 

It bears emphasis that, although thousands of facilities burn waste and would be subject to a 

properly written CISWI rule, EPA’s previous attempts at exempting units that recover energy 

shrank this population to approximately 100 units. The ANPRM approach would likely yield the 

same result, depriving thousands of communities of public health and environmental protection 

that Congress enacted § 129 to provide. 

VI. THE EXEMPTIONS FOR HAZARDOUS WASTE VIOLATE RCRA AND 

CONFLICT WITH EPA’S SUBSEQUENT DECISION TO RECONSIDER ITS 

“COMPARABLE FUELS” RULE. 

 The ANPRM states “EPA is interested in extending” previous determinations, made 

“only for the purposes of the hazardous waste regulations,” that black liquor, spent sulfuric acid, 

and “comparable fuels” may be burned and are not solid wastes. 74 Fed. Reg. at 58-59. 

 Both of EPA’s comparable fuels rules are flatly unlawful and are subject to pending 

petitions for review in the D.C. Circuit. These cases have been stayed while EPA reconsiders its 

expansion of the comparable fuels exclusion that was issued contemporaneously with the 

ANPRM. 73 Fed. Reg. 77953 (December 19, 2008). The comments of Sierra Club and 

Earthjustice on that exclusion are attached hereto (“Comparable Fuels Comments,” Ex. F) and 

fully incorporated by reference herein. Extending those exclusions in any way would conflict 

10
11

directly with EPA’s decision to reconsider them. Further, a determination that any of the 

materials covered by either of the comparable fuels rules are not solid wastes at all would violate 

both RCRA and the Clean Air Act for the reasons given in these comments and in the 

incorporated comments on the comparable fuels exclusion. Ex. F. 

 Any extension of the exclusion for black liquor and spent sulfuric acid would violate both 

RCRA and the Clean Air Act for all the reasons given above, and would seriously undermine 

public health protection by allowing these wastes to be burned in uncontrolled or undercontrolled facilities. 

 Finally any existing exclusion of black liquor and spent sulfuric acid that allows these 

wastes to be burned as non-hazardous wastes is unlawful and arbitrary for the reasons given in 

the Comparable Fuels Comments, Ex. F, incorporated herein by reference. 

CONCLUSION 

 EPA must issue a definition of solid waste that protects public health and respects both 

RCRA and the Clean Air Act. To do so, the agency must abandon the approach set out in the 

ANPRM and adopt a new one based on the following two principles: (1) any material that has 

been discarded once is “discarded” and therefore a solid waste; and (2) in no event is a material 

not “discarded” merely because it is or may be burned for energy recovery. 

 These principles will result in a definition of solid waste that easily complies with both 

RCRA and the Clean Air Act. As shown above, it will comport with the plain meaning of 

RCRA and the relevant decisions in the federal courts of appeal as well as the plain meaning of 

Clean Air Act § 129 as explained in NRDC. Crucially, such a definition will not be vulnerable to 

legal challenges and – unlike a definition reflecting the ANPRM approach – will not put EPA’s 

CISWI and Boilers rules at risk of another vacatur. 

 Most importantly, a definition based on these principles will go a long way to protecting 

public health in communities located near facilities that currently burn, or may burn, tires, scrap 

plastics, spent solvents, used oil, and other wastes. Such facilities are incinerators and should be 

subject to the protective requirements that Congress enacted for incinerators. Without these 

requirements, families in thousands of communities across the country – many of which are 

already badly overburdened with toxic pollution – will suffer from the emissions of poorly 

controlled waste-burning that they can do little or nothing to avoid or prevent.