June 24, 2011

The Honorable Mathy Stanislaus Assistant Administrator Office of Solid Waste and Emergency Response U.S. Environmental Protection Agency Ar iel Ri os Federal

Building 1200 Pennsylvania Ave., NW Washington, DC 20460

Re: EPA’s Conceptual Appro ach For Determining Whether Concentrations of Const it uents in Secondary Materials Are Comparable to Concentrations in Tradi ti onal Fuel Dear Administrator Stanislaus: Thank you f

or meet ing with us on Tuesday, June 21, 2011, and present ing yo ur conceptu al

approach for determining whether concentrations of const it uents in secondary materi als are com

parable to concentrations in traditional fuel. It i s our understanding that your goal i s to establish a framework that is flexible enough to accommodate a w ide range of materials.
At our meet ing yo u requested addit io nal data regarding tradit io nal fuels, particularly hazardous air pollutant (HAP) data. You also requested addit io nal informat io n regarding th e HAPs and sect io n 129 pollutants found in alternat ive fuels, particularly the number of facilit ies represented in any dataset, as well as the distribut io n of the data. The forest products industry

has provi ded you wi

th the raw data behind the average const it uent levels that we presented to y ou previ ously. You shoul d also have received a database of coal data. Other organizat io ns are seeking addit io nal informat io n in response to your request. In addit io n, we suggest that your staff examine the database co llected by the Office of Air and Radiat io n from th e informat io n collect io n request that was issued during the development of the Major Source Boiler MACT Rule. Knowing that you are still gathering data and that y our f ramework i s st ill evo lving, we remain concerned that some alternative fuels that have b een legi timately used as fuel for decades may

n ot fi t wi thin y our f ramework, as we understand it. One example is resinated wood. We believe that some resinated wood may h ave VOC levels, in the form of f ormaldehyde, of up to 140 ppm. After CARB II is ful ly 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 characterizat io n paper for tradit io nal fuels, one ty pe of coal h as up to 56 ppm

of tol uene. Li qui d fuels, such as No. 5 fuel o il have VOC l evels up to 4800 ppm . If the com parison is made to total VOCs, rather than VOCs that are HAPs, we may find levels of VOCs in virgin wood th at are higher than 140 ppm. In addit io n, it i s much less burdenso me to measure totalThe Honorable Mathy Stanislaus

June 24, 2011 Page 2

2 VOCs rather than individual VOCs that are HAPs. As you further develop your concept, pl ease consider these issues. Another concern arises fro m EPA’s conceptual approach to establishing a benchmark level. If EPA c hooses to group contaminants and fuels for comparison to alternat ive fuels, please note that if y ou do not use the highest level found in any tradi ti onal f uel as th e benchmark then by

defini ti on y ou are saying that some traditional fuel will fail the com parabili ty test, even though the high levels of HAPs or section 129 pollutants are due to the natural variabilit y of tradi ti onal f uels. Finally , we are concerned about the presumpt io n that EPA may choose to make that if a combustion unit is designed to burn a single so lid fuel , i t 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 meet ing yo u al so asked us to ident ify areas of the rule or preamble that may not be consistent with the conceptual approach presented on Tuesday . Understanding that y our approach i s st ill evo lving, we cannot determine exactly what inconsistencies may or may not exist. However, in At tachment Awe have provided excerpts fro m th e rule and fro m th e preamble that may

support a fuel by fuel, contaminant by contaminant com

parison. 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 tradi ti onal f uels to contaminant levels in alternat ive fuels. EPA al so is offering to issue comfort l etters to enti

ti es that wish EPA to confirm that their particular material has contaminant levels lower than or comparable to tradit io nal fuels. Alt hough we would like to see a written descript io n of your conceptual appro ach, please be aware that we have deep reservat io ns about the use of guidance documents and comfort l etters to provide regulatory clari ty , parti cul arly

if the final guidance and any letters relying on that final guidance appear to be inconsistent with rule l anguage or preamble language interpreting the rule language. If EPA’s conceptual approach beco mes a guidance document that is used to determine what al ternative fuels are legit imate fuels, and if that guidance document could be considered a significant change in the NHSM Rule legit imacy criteria, it is possible that th e guidance could be challenged in court as a legislative rule that should have been issued fo llo wing noti ce and comment rul e - making under the Administrative Procedure Act. In trying to dist inguish between legislat ive rules and policy statements, courts have found th at "if a document expresses a change in substant ive law or policy the agency intends to make binding, or administers with binding effect, the agency may not rely upon theThe Honorable Mathy Stanislaus

June 24, 2011 Page 3

3 stat utory exempti on f

or policy statements, but m

ust observe the APA's legislat ive rul emaking 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. S ec'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. Ci r. 2000). In that case, plaint iffs pet it io ned for review of an EPA guidance document arguing that the guidance imposed new mo nit oring requirements relat ing to the operation of permi t programs under the Cl ean Ai r A ct. EPA argued that the guidance was not subject to judicial review because it was neit her final agency act io n nor a binding legislat ive rule. Id . at 102 0. The District of Columbia Circuit Court of Appeals, however, di sagreed. “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 legislat ive rule, if it bases enf orcement acti ons on the policies or interpretations formulated in the document, if it leads private parties or State permitting authorit ie s to believe that it will declare permits invalid unless they comply wit h the terms of the document, then the agency's document is fo r all pract ical purposes ‘binding.’” Id . at 1023. In that case, the court relied in part on it s 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 legislat ive rul e issued wi th out com

plying wi th the Administrative Procedure Act, the court set aside the gui dance and rul ed that i

t could not be used.
If a gui dance document or a comfort letter is challenged and determined to be an invalid legislat ive rule, the consequence for the Agency is that it will have to withdraw the gui dance. However the consequence for any f acility operator that relied on that gui dance or comfort letter could be non

- co mp liance wit h Clean Air Act requirements. Such a consequence would be devastating. EPA’s gui dance and comfort letters also may be challenged on a case

- by

- case basis in the context of a facilit y Clean Air Act permi t. The Boiler MACT rul e pl aces the following requi rements on facilit y operators:  Ti tl e V permi

t reports affirming that “No secondary m ateri als 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 m aterials that have been determined not to be solid waste pursuant to § 241.3(b)(1), y ou m ust keep a record which documents how the secondary material meets each of the legit imacy cri teria. If y ou combust a fuel that ha s been processed from a discarded non

hazardous secondary

materi al pursuant to § 241.3(b)(4), you m ust keep records as to how the operations that produced the fuel satisfies the definit io n of processing in § 241.2. If the fuel received a non

- waste determin at io n pursuant to the petit io n process submitted under § 241.3(c), you m ust keep a record that documents how th e fuel sat isfies the requirements of the petit io n process.”40 CFR 63.7555(d)(2).The Honorable Mathy Stanislaus

June 24, 2011 Page 4

4 A cit izen activist could challenge the validit y of a facilit y ’s permit, reports, and records alleging that, notwithstanding an EPA guidance or comfort letter, the facilit y is combusting so lid waste. In such a case, the decision of whether a material is a waste or a legit imate fuel in the hands of a court, not EPA. Again, the consequence of losing that case is the devastating consequence o f non - co mp liance wi th the Cl ean 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 work able, 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 co mment rulemaking to be legally valid. In addit io n, there are a number of issues that have been raised that would not be addressed by

EPA’s conceptual

f ramework. Those issues are ident ified in Attachment C. As you know, we have requested the Agency to administratively stay the NHSM Rul e. We reiterate that request and ask that y ou engage in rulemaking to mak e any necessary changes to make the NHSM Rule more workable. As we have discussed, expanding the list of tradit io nal fuels to recognize long

- time legit imate use of secondary materials as fuels will provide certaint y and reduce burden on both EPA and indu stry . In addi ti on, we believe that the way

EPA in the past has evaluated whether recycling is legit imate is flexible enough to allow EPA to recognize addit io nal legit imate recy cling. Thi s approach to l egi timacy is found in both the April 26, 1989, memora ndum issued by then Office of Solid Waste Director Sylvia Lowrance, as well as in the Subt it le C definit io n of so lid waste rul e issued in October 2008. In fact, remnants of this approach also are found in th e preamble to the NHSM Rule. See Attachment D. In the final NHSM Rule, EPA without explanat io n deviated fro m it s l ong - standing approach to recy

cling legi timacy . It i s our understanding that EPA’s reluctance to amend th e NSHM Rule to address the workabilit y concerns we have raised is due in part to th e fact that revisio ns to the 2008 Subtit le C rule are currently in inter

- agency review and EPA may be proposing to adopt for Subtitle C the same legit imacy approach that it prom ulgated in the NHSM Rule. First, we believe that EPA may adopt different app roaches to recycling of hazardous and non

- hazardous secondary m ateri als, so we do not believe these two rules should be linked. Second, EPA’s conceptual approach to determining comparabilit y of non - hazardous secondary materi als to tradi

ti onal f uels is it s elf new and thus is de

- linked fro m hazardous material recycling. Third, if EPA continues to believe that these two rules are linked, we hope that EPA is on notice about th e workabilit y of its new approach to ident ifying legit imate recy cling. 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 rul emaking.The Honorable Mathy Stanislaus

June 24, 2011 Page 5

5 Pl ease do not l et the Subt it le C rul e keep y ou f rom amending the NHSM Rule to p revent billio ns of do llars worth of valuable alternat ive fu els fro m being sent to landfills. That outcome woul d contrary

to every thing that President Obama stands for on the environment and the economy . Pl ease amend the NHSM rule to achieve the goal that yo u are trying to reach with y our conceptual

approach.

Thank yo u fo r yo ur attenti on to this matter. If you have any quest io ns, 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 Associat io n

cc: Bob Sussman, OA Brenda Mallory, OGC Suzanne Rudzinski, OSWER, ORCR Jim Berlow, OSWER, ORCR Paul R. Noe Vi ce President fo r Public Policy American Forest & Paper Associat io n