UNITED STATES ENVIRONMEN TAL 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 f acilities. The advance notice of proposed rulemaking (ANPRM) addressed here w ould 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 envi ronment from the toxic emissions that waste incineration generates.

The ANPRM would exclude, among other thin gs, scrap tires, scrap plastics, spent solvents, used oil, chemical laden paper mill sl udges, 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 thous ands of industrial faci lities that burn these wastes would be exempted from meeting the in cinerator 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 industr ial 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 th e new source of toxic pollution to which their children would be exposed. Exempting these faci lities 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 operato r 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 Coordi nated Rulemaking FACA) identified good combustion practices (GCP) as a key control technology to reduce th e emissions of hazardous air pollutants from combustion units. Those practices cannot be maintain ed by operators that are not highly trained.Com bustion units have the potential to emit far gr eater quantities of hazar dous air pollutants if they are operated improperly.

Thousands more waste-burning faci lities would be exempted from any meaningful emission standards. The Clean Air Act requires c ontrol of air toxics thro ugh just two provisions: the incinerator requirements in § 129 and the requi rements for hazardous ai r pollutant control in § 112. Although § 129 requires protective emission stan dards for all faciliti es that combust any solid waste material, § 112 requires such standard s 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). Sect ion 112 allows far less protective standards for “area” s ources that fall below this thre shold, 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, reporti ng, or any other measures that would protect the public from the effects of th eir 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 ac count 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 ex empted from any obligation to inform the public and the government about their operation s, 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 wa ste advanced in the January 2 ANPRM would not necessarily stop with the direct impacts summ arized above. As explained in more detail below, that definition is flatly unlawful as we ll 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 emission s standards and other requirements for area sources that burn tires, used o il, and other waste. Such argum ent 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 protec tive standards on a purely discreti onary basis under Clean Air Act § 112 would be far more difficult politically and practically than issui ng 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 em issions, little if any monitoring, and establish no siting, permitting or ope rator training requirement s. In short, the notion that because EPA theoretically can issu e stronger standards for area sources under § 112,
communities located near area source waste-burn ers would not be deprived of health and environmental protection if the definition of so lid waste in the ANPRM were finalized is both wrong and dangerous.

2Crucially, the definition of solid waste suggested by the ANPRM would compromise both the legal and substantive integrity of EPA’s forthcoming air toxics ru les for industrial and commercial boilers and process heat ers (“Boilers Rule”) and for co mmercial and industrial solid waste incinerators (“CISWI Rule”). Clean Air Act § 129 provides that the term solid waste “shall have the meaning[] established by the Admi nistrator under the Solid Waste Disposal Act” (“RCRA”). 42 U.S.C. § 7429(g)(6). It also makes cl ear that any facility th at 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 un its are regulated as incinerators and which are regulated as boilers. If EPA gets the definiti on of solid waste wrong, it may skew the population of units that are subject to th e Boilers and CISWI rules respecti vely. For example, if EPA’s definition is underinclusive, inci nerators will be classified im properly as boilers. Because standards under both § 129 and § 112 must be based on the actu al performance of the best sources in the relevant category, putting the wron g 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 th e 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 h azardous air pollutants and criteria pollutants, and will yield enormous public health benef its 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 th an 2000. EPA has already deprived the public of statutorily mandated health protection for fa r too long, and it would be the height of irresponsibility for the agency to issue a legally vulnerable definiti on 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 risk s just that outcome.

II. PREVIOUS RULEMAKINGS FOR CISWI AND BOILERS.

EPA does not define solid wa ste 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 Novemb er 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 vaca ted as flatly unlawful in 2007, NRDC , 489 F.3d at 1257-1258, and it is well established th at vacatur of a rule returns EPA to a status quo where its statutory obligation to issue the rule is un fulfilled. Thus, more than 15 years after the statutory deadline, EPA still has not issued the mandated prot ections against toxic emissions from CISWI. Nor has EPA met its statutory oblig ation 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 mandate d protections from scores of thousands of
CISWI and boilers results from its unlawful a ttempts to avoid issuing § 129 standards for facilities that recover energy from waste com bustion. When EPA first proposed § 129 standards

3for CISW I in 1999, the agency attempted to de fine solid waste under the Clean Air Act to exclude waste burned for energy recove ry. 64 Fed. Reg. 67092 (November 30, 1999). Commenters pointed out that th e proposed definition was unlawful and arbitrary. Comments of Sierra Club, California Communities Against To xics, 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 recove ry 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 “commercia l and industrial solid waste” and “commercial and
industrial solid waste in cineration 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 reconsidera tion pointing out that this new attempt at shielding units that burn waste with energy recovery was unlawful and arbitrary as well. 2001 Reconsideration Peti tion, 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 voluntar y remand of its CISWI Rule, repr esenting to the court and the public that it “recognizes the date for establis hing emission standards and related requirements
for commercial and industrial inci nerators 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 incinera tion unit” that were functionally the same as the unlawful ones issued in its 2000 Rule. 69 Fed. Reg. 7390 (F ebruary 17, 2004). Earthjustice submitted comments explaining again, in detail, that thes e 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 re fusal to regulate facilities that burn waste and recover energy from the process as incinera tors has deprived scor es 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 Administrati on, EPA set out to circumvent the decision in

NRDC by inventing yet another a rationale for exem pting 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.

4The ANPRM does not contain a suggested definition of solid waste. Rather, it provides several examples of “secondary materials” thatEPA 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 legitima te “alternative” fuel s that have not been previously discarded;

 Secondary materials used as legitima te “alternative” fuels resulting from processing of discarded secondary materials;

 Secondary materials used as legitimate ingredients; and

 Hazardous secondary materials that ma y 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 essentia lly claims that materials that have been discarded in reality are not “discarded” for regul atory purposes. For example, EPA asserts that
some whole and shredded tires that are burned in various combustion unit s 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 ma terials 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 fo r direct use in an industrial process. In such cases, the pr ocessed 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 com ponent” of used oil can become a nonwaste again if it is “extracted fr om the non-fuel contaminants.” Id. at 58. Following that notion to its logical conclusion, EPA also seeks commen t 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.

5IV. 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 is sue a definition of “so lid 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 agri cultural operations, and from community activities,
but does not include solid or dissolve ma terials in irrigation return flows or industrial discharges which are not point sources subject to permits under section 1342 of Title 33 or source, special nuclea r, 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 th at has been “discarded” is a solid waste.

The caselaw confirms this point. In the l ead 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 mean ing of “discarded,” the Court explained:

Oil recyclers typically collect discarde d used oils, distill them, and sell the resulting material for use as fuel in bo ilers. Regulation of those activities is likewise consistent with an everyday readi ng 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 au thority 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 wast e when it left the electr ic arc furnace and nothing
in RCRA or AMC I required the agency to st op treating the slag as wast e when it arrived at the reclamation facility. Id. at 741. The Court went on to remi nd EPA that the agency needed to square its interpretation of “discarded” with RCRA’s purpose of establis hing a cradle-to-grave regulatory structure for handling ha zardous waste and encouraged EP A to “recognize that it must comply with its statutory mandate to prescrib e treatment for the disposal of K061 slag.” Id. at
741-742.

6Ten years later, the D.C. Circ uit 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 s ubsequently 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 recyc ling purposes from spent car and
truck batteries are not wa ste. 996 F.2d 1126, 1130-1132 (11 th 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 no t “discarded” when it was recycled and used in
roadbeds. Owen Electric Steel Co. v. Browner , 37 F.3d 146, 150 (4 th Cir. 1994). Quoting

ILCO ’s holding on batteries, it observed

Somebody has discarded the battery in whic h these components are found. This fact does not change just b ecause 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 material s would be flatly unlawful. Li kewise, 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 prac tice that should be condoned by th e 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 m eaning of the term discarded is ambiguous. EPA has made such argument before without success:

7EPA thinks that in light of API and AMC II , “discarded” is now a mbiguous and thus we should defer to its interpreta tion. 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” unambiguousl y 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, subs equent 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 precise ly on this point that AMC I and its progeny have he ld the term is clear. Indeed, not even AMC II and SFAF – both of which are questionabl e precedent at best – suggest
that materials such as used o il, tires and other once-discarded materials are not waste. Although

AMC II incorrectly states that API “concluded that the term ‘dis carded’ was marked by the kind of ambiguity demanding resolution by the agency ’s delegated lawmaking powers,” it still finds EPA’s interpretation of “discard ed” 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 i ndustry “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 reus e 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 we re 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” unamb iguously has its ordinary meaning, and that meaning precludes the exemptions from the defin ition of “solid waste” espoused in the ANPRM. Even if the term “discarded” were ambiguous, how ever, 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), 'm ay be detained beyond the removal period,' applies without differe ntiation to all three categorie s of aliens that are its subject. To give these same words a different m eaning for each category would be to invent a statute rather than interpret one

.

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

8The reasoning in Clark applies a fortiori here. EPA already has interpreted the term
“discarded” to include materials that are “burne d or incinerated” or “r ecycled” 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 wa ste).” 40 C.F.R. § 261.2. The interpretation of
“discarded” in the ANPRM is hopelessly inconsistent with th e 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 ener gy” or “used to produce a fuel” and to exclude such
materials.

In any event, “discarded” is a term that Congress used to de lineate whether a material is a “solid waste,” not whether a “solid waste” is “h azardous” or non-hazardous. Classification as a “solid waste,” as EPA itself has long recognized, is a necessary pr econdition 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 a pproach 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 purpos es 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” differe ntly 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 W OULD 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 frustr ate that statute’s purpose. See, e.g.

, Massachusetts v. EPA , 549 U.S. 497, 538 (2007) (rejecting EPA interpretatio n of Energy Policy and Conservation Act that would have frustrated Clean Air Act’s purpose).

Clean Air Act § 129 makes clear that Congr ess intended the agency to promulgate protective incinerator regulations for all faci lities that combust any solid waste material, regardless of whether such facilities rec over 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)) wh ich combust waste for the primary purpose of recovering metals, (B) qualifying small power pr oduction facilities, as defined in section 796(17)(C) of Title 16, or qualifyi ng cogeneration facilities, as de fined 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 bur n homogeneous waste for the pr oduction of electric energy and steam or forms of useful energy (such as heat) wh ich are used for industrial, commercial, heating or cooling purposes, or (C) air curtain incinerators provided th at such incinerators only burn wood waste, yard wastes, and clean lumber and that such air curt ain incinerators comply with opacity limitations to be established by the Ad ministrator by rule.” 42 U.S.C. § 7429(g)(1).

9The broad swath of exemptions contempl ated in the ANPRM w ould 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 standa rds regardless of whethe r 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 Co ngress’ 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 effec tively eliminate any purpose or function for § 129(g)(1)’s specifically tailored ex emption 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 ma terials would conflict di rectly with Congress’
intent. Fourth, Clean Air Act § 129(h )(5) shows that Congr ess viewed the universe of “fuel” to
consist of “waste” on the one hand and “fossil fu el” on the other. 42 U.S.C. § 7429(h)(5). It provides that incinerators subject to § 129 “shall not be a utility un it 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 peri ods to be determined by the Administrator, is from a fuel (i ncluding any waste burned as a fuel) other than a fossil fuel .” Id. (italics in original, underscoring added). Congres s 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 f acilities that burn non-fossil fu els 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 a nd waste-burning facilitie s 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 exemp ting 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 HAZ ARDOUS WASTE VI OLATE 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 ar e not solid wastes. 74 Fed. Reg. at 58-59.

Both of EPA’s comparable fuels rules ar e 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 here to (“Comparable Fuels Comments,” Ex. F) and fully incorporated by reference herein. Extendi ng those exclusions in any way would conflict

1011 directly with EPA’s decision to reconsider them. Further, a determination that any of the materials covered by either of the comparable fuel s rules are not solid wast es at all would violate
both RCRA and the Clean Air Act for the reas ons 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 wast es 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 th at protects public health and respects both RCRA and the Clean Air Act. To do so, the agen cy must abandon the approach set out in the ANPRM and adopt a new one based on the following two principles: (1) a ny material that has
been discarded once is “discarded” and therefore a solid waste; a nd (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 thes e principles will go a long way to protecting public health in communities located near facilit ies 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 require ments that Congress enacted for incinerators. Without these requirements, families in thousands of comm unities across the country – many of which are already badly overburdened with toxic polluti on – will suffer from the emissions of poorly controlled waste-burning that they can do little or nothing to avoid or prevent.