June 24, 2011

The Honorable Mathy Stanislaus

Assistant Administrator

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

Ariel Rios Federal Building

1200 Pennsylvania Ave., NW

Washington, DC 20460

Re: EPA’s Conceptual Approach For Determining Whether Concentrations of 

Constituents in Secondary Materials Are Comparable to Concentrations in 

Traditional Fuel

Dear Administrator Stanislaus: 

Thank you for meeting with us on Tuesday, June 21, 2011, and presenting your 

conceptual approach for determining whether concentrations of constituents in secondary 

materials are comparable to concentrations in traditional fuel. 

It is our understanding that your goal is to establish a framework that is flexible enough 

to accommodate a wide range of materials. 

At our meeting you requested additional data regarding traditional fuels, particularly

hazardous air pollutant (HAP) data. You also requested additional information regarding 

the HAPs and section 129 pollutants found in alternative fuels, particularly the number of 

facilities represented in any dataset, as well as the distribution of the data. The forest 

products industry has provided you with the raw data behind the average constituent 

levels that we presented to you previously. You should also have received a database of 

coal data. Other organizations are seeking additional information in response to your 

request. In addition, we suggest that your staff examine the database collected by the 

Office of Air and Radiation from the information collection request that was issued 

during the development of the Major Source Boiler MACT Rule. 

Knowing that you are still gathering data and that your framework is still evolving, we 

remain concerned that some alternative fuels that have been legitimately used as fuel for 

decades may not fit within your framework, as we understand it. One example is 

resinated wood. We believe that some resinated wood may have VOC levels, in the form 

of formaldehyde, of up to 140 ppm. After CARB II is fully implemented those levels are 

not expected to exceed 100 ppm. It is unclear to us how comparisons of individual VOCs 

such as formaldehyde are to be made. According to EPA’s material characterization 

paper for traditional fuels, one type of coal has up to 56 ppm of toluene. Liquid fuels, 

such as No. 5 fuel oil have VOC levels up to 4800 ppm. If the comparison is made to 

total VOCs, rather than VOCs that are HAPs, we may find levels of VOCs in virgin wood 

that are higher than 140 ppm. In addition, it is much less burdensome to measure total 
The Honorable Mathy Stanislaus

June 24, 2011

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VOCs rather than individual VOCs that are HAPs. As you further develop your concept, 

please consider these issues. 

Another concern arises from EPA’s conceptual approach to establishing a benchmark 

level. If EPA chooses to group contaminants and fuels for comparison to alternative 

fuels, please note that if you do not use the highest level found in any traditional fuel as 

the benchmark then by definition you are saying that some traditional fuel will fail the 

comparability test, even though the high levels of HAPs or section 129 pollutants are due 

to the natural variability of traditional fuels. 

Finally, we are concerned about the presumption that EPA may choose to make that if a 

combustion unit is designed to burn a single solid fuel, it is designed to burn any solid 

fuel. We do not believe that is true for all units. For example, a veneer dryer that is 

designed to burn sander dust physically cannot burn pulverized coal. 

At our meeting you also asked us to identify areas of the rule or preamble that may not be 

consistent with the conceptual approach presented on Tuesday. Understanding that your 

approach is still evolving, we cannot determine exactly what inconsistencies may or may 

not exist. However, in Attachment A we have provided excerpts from the rule and from 

the preamble that may support a fuel by fuel, contaminant by contaminant comparison. 

These excerpts are not exhaustive. In Attachment B we have provided the excerpts that 

may support comparisons to groups of fuels. 

As we understand it, EPA’s conceptual approach is to issue a guidance document that 

would establish guidelines for determining how to compare contaminant levels in 

traditional fuels to contaminant levels in alternative fuels. EPA also is offering to issue 

comfort letters to entities that wish EPA to confirm that their particular material has 

contaminant levels lower than or comparable to traditional fuels. 

Although we would like to see a written description of your conceptual approach, please 

be aware that we have deep reservations about the use of guidance documents and 

comfort letters to provide regulatory clarity, particularly if the final guidance and any

letters relying on that final guidance appear to be inconsistent with rule language or 

preamble language interpreting the rule language. 

If EPA’s conceptual approach becomes a guidance document that is used to determine 

what alternative fuels are legitimate fuels, and if that guidance document could be 

considered a significant change in the NHSM Rule legitimacy criteria, it is possible that 

the guidance could be challenged in court as a legislative rule that should have been 

issued following notice and comment rule-making under the Administrative Procedure 

Act. 

In trying to distinguish between legislative rules and policy statements, courts have found 

that "if a document expresses a change in substantive law or policy the agency intends to 

make binding, or administers with binding effect, the agency may not rely upon the 
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June 24, 2011

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statutory exemption for policy statements, but must observe the APA's legislative 

rulemaking procedures." Gen. Elec. Co. v. E.P.A., 290 F.3d 377,383-84 (D.C. Cir. 2002). 

Courts examine whether the agency establishes a new "binding norm." Nat'l Min. Ass'n v. 

Sec'y of Labor, 589 F.3d 1368, 1371 (11th Cir. 2009). 

The seminal case on this subject is Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. 

Cir. 2000). In that case, plaintiffs petitioned for review of an EPA guidance document 

arguing that the guidance imposed new monitoring requirements relating to the operation 

of permit programs under the Clean Air Act. EPA argued that the guidance was not 

subject to judicial review because it was neither final agency action nor a binding 

legislative rule. Id. at 1020. The District of Columbia Circuit Court of Appeals, however, 

disagreed. “If an agency acts as if a document issued at headquarters is controlling in the 

field, if it treats the document in the same manner as it treats a legislative rule, if it bases 

enforcement actions on the policies or interpretations formulated in the document, if it 

leads private parties or State permitting authorities to believe that it will declare permits 

invalid unless they comply with the terms of the document, then the agency's document is 

for all practical purposes ‘binding.’” Id. at 1023. In that case, the court relied in part on 

its determination that the guidance was inconsistent with the rule preamble and response 

to comment statements made at the time the rule was issued, noting that “the Guidance, 

of course, charts a very different course.” Finding that it was a legislative rule issued 

without complying with the Administrative Procedure Act, the court set aside the 

guidance and ruled that it could not be used. 

If a guidance document or a comfort letter is challenged and determined to be an invalid 

legislative rule, the consequence for the Agency is that it will have to withdraw the 

guidance. However the consequence for any facility operator that relied on that guidance 

or comfort letter could be non-compliance with Clean Air Act requirements. Such a 

consequence would be devastating. 

EPA’s guidance and comfort letters also may be challenged on a case-by-case basis in the 

context of a facility Clean Air Act permit. The Boiler MACT rule places the following 

requirements on facility operators:

 Title V permit reports affirming that “No secondary materials that are solid waste 

were combusted in any affected unit.” 40 CFR 63.7545(e)(8)(iii)). 

 Keeping records: If you combust non-hazardous secondary materials that have 

been determined not to be solid waste pursuant to § 241.3(b)(1), you must keep a 

record which documents how the secondary material meets each of the legitimacy 

criteria. If you combust a fuel that has been processed from a discarded nonhazardous secondary material pursuant to § 241.3(b)(4), you must keep records as 

to how the operations that produced the fuel satisfies the definition of processing 

in § 241.2. If the fuel received a non-waste determination pursuant to the petition 

process submitted under § 241.3(c), you must keep a record that documents how 

the fuel satisfies the requirements of the petition process.”40 CFR 63.7555(d)(2). 
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June 24, 2011

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A citizen activist could challenge the validity of a facility’s permit, reports, and records 

alleging that, notwithstanding an EPA guidance or comfort letter, the facility is 

combusting solid waste. In such a case, the decision of whether a material is a waste or a 

legitimate fuel in the hands of a court, not EPA. Again, the consequence of losing that 

case is the devastating consequence of non-compliance with the Clean Air Act. 

Bearing these concerns in mind, please understand that while we greatly appreciate the 

fact that EPA is trying to make its NHSM Rule workable, we are concerned that if EPA 

makes any significant change to its interpretation of this Rule, that change may have to 

go through notice and comment rulemaking to be legally valid. 

In addition, there are a number of issues that have been raised that would not be 

addressed by EPA’s conceptual framework. Those issues are identified in Attachment 

C.

As you know, we have requested the Agency to administratively stay the NHSM Rule. 

We reiterate that request and ask that you engage in rulemaking to make any necessary

changes to make the NHSM Rule more workable. As we have discussed, expanding the 

list of traditional fuels to recognize long-time legitimate use of secondary materials as 

fuels will provide certainty and reduce burden on both EPA and industry. In addition, we 

believe that the way EPA in the past has evaluated whether recycling is legitimate is 

flexible enough to allow EPA to recognize additional legitimate recycling. This approach 

to legitimacy is found in both the April 26, 1989, memorandum issued by then Office of 

Solid Waste Director Sylvia Lowrance, as well as in the Subtitle C definition of solid 

waste rule issued in October 2008. In fact, remnants of this approach also are found in 

the preamble to the NHSM Rule. See Attachment D.

In the final NHSM Rule, EPA without explanation deviated from its long-standing 

approach to recycling legitimacy. It is our understanding that EPA’s reluctance to amend 

the NSHM Rule to address the workability concerns we have raised is due in part to the 

fact that revisions to the 2008 Subtitle C rule are currently in inter-agency review and 

EPA may be proposing to adopt for Subtitle C the same legitimacy approach that it 

promulgated in the NHSM Rule. First, we believe that EPA may adopt different 

approaches to recycling of hazardous and non-hazardous secondary materials, so we do 

not believe these two rules should be linked. Second, EPA’s conceptual approach to 

determining comparability of non-hazardous secondary materials to traditional fuels is 

itself new and thus is de-linked from hazardous material recycling. Third, if EPA 

continues to believe that these two rules are linked, we hope that EPA is on notice about 

the workability of its new approach to identifying legitimate recycling. Finally, we 

believe it is invalid for EPA to prejudge the outcome of a rulemaking and use that 

expected outcome as a reason to fail to address issues presented by a separate 

rulemaking. 
The Honorable Mathy Stanislaus

June 24, 2011

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Please do not let the Subtitle C rule keep you from amending the NHSM Rule to prevent 

billions of dollars worth of valuable alternative fuels from being sent to landfills. That 

outcome would contrary to everything that President Obama stands for on the 

environment and the economy. Please amend the NHSM rule to achieve the goal that

you are trying to reach with your conceptual approach. 

Thank you for your attention to this matter. If you have any questions, please contact 

Tim Hunt at 202-463-2588 or tim_hunt@afandpa.org.

Best regards,

Tracey J. Norberg

Senior Vice President and Corporate Counsel

Rubber Manufacturers Association

cc: Bob Sussman, OA

 Brenda Mallory, OGC

Suzanne Rudzinski, OSWER, ORCR

 Jim Berlow, OSWER, ORCR

Paul R. Noe

Vice President for Public Policy

American Forest & Paper Association