J~~~EOsryr~s UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 

## NOV 1 9 2010

THEADMINISTRATOR The Honorable Olympia J. Snowe United States Senate Washington, D

.C. 20510 Dear Senator Snowe: Thank you for your letter of September 24, 2010, regarding the U . S. Environmental Protection Agency's (EPA's) proposed rule, "Identification of Non-Hazardous Secondary Materials that are Solid Waste." In your letter, you express concerns that the rule may unnecessarily reduce valuable recycling in your region. I appreciate your interest in these important issues, and want to assure you that EPA does not want to reduce legitimate recycling in the country. This action is being proposed alongwith three CleanAirAct (CAA) rules. The proposed rule clarifies under the Resource Conservation and Recovery Act (RCRA) which non-hazardous secondary materials when burned in a combustion unit are or are not solid wastes. Ifa nonhazardous secondary material is not a "solid waste" under RCRA, and is burned in a combustion unit, then the unit would be subject to the applicable CAAsection 112 requirements. On the other hand, ifthe material is considered a "solid waste," then the combustion unit would be subject to the CAAsection 129requirements. In general, the proposed rule identified non-hazardous secondary materials burned in combustion as solid wastes except under the following circumstances: 1) when used as a fuel that remains within the control ofthe generator and it meets the legitimacy criteria; 2) when used as an ingredient in a manufacturing process (whether by the generator or a third party) that meets the legitimacy criteria; 3) when the non-hazardous secondary material has been sufficiently processed to produce a non-wastefuel or ingredient product that meets the legitimacy criteria; and 4) when, through a case-by-case petition process, it has been determined that non-hazardous secondary material handled outside the control ofthe generator has not been discarded and is indistinguishable in all relevant aspects froma fuel product. The proposal identified several factors that the person who generated the non-hazardous secondary material would need to consider in determining whether the material would qualify as a legitimate fuel or ingredient. Those factors include: (1) whether the material is handled as avaluable commodity; (2) whether it has a meaningful heat value (in the case ofa fuel) or it is used to produce avaluable product (in the case ofan ingredient) ; and (3) whether it contains contaminants at levels comparable to the levels found in thevirgin products that it is replacing.

Internet Address (URL) e http //www .epa.gov Recycled/Recyclable 0 Printed with Vegetable Oil Based Inks on 100%Postconsumer, Process Chlorine Free Recycled PaperThe proposal also requested comment on two other approaches. The "Alternative

Approach" attempted to define solid waste as broadly as possible, while still being legally defensible. Under this alternative, only fuels or ingredients that remain within the control ofthe generator and meet the legitimacy criteria would not be solid wastes. The Agency also took comment on the approach that is most supported by environmental groups: that all nonhazardous secondary materials when combusted are solid wastes andwould be subject to the section 129 CAArequirements. The Agency solicited comments and information on many ofthe issues you mentioned in your letter. I appreciate your comments andwe will ensure that your letter is entered into the rulemaking docket (EPA-HQ-RCRA-2008-0329) . Again, thank you for your letter. Ifyou have further questions, please contact me or your staff maycall Carolyn Levine in EPA's Office of Congressional and Intergovernmental Relations at (202) 564-1859.J~~~E~ sr,yr~s UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 

## NOV 1 9 2010

THEADMINISTRATOR The Honorable Susan Collins United States Senate Washington, D

.C. 20510 Dear Senator Collins: Thank you for your letter ofSeptember 24, 2010, regarding the U . S. Environmental Protection Agency's (EPA's) proposed rule, "Identification of Non-Hazardous Secondary Materials that are Solid Waste." In your letter, you express concerns that the rule may unnecessarily reduce valuable recycling in your region. I appreciate your interest in these important issues, and want to assure you that EPAdoes not want to reduce legitimate recycling in the country. This action is being proposed alongwith three CleanAirAct (CAA) rules. The proposed rule clarifies under the Resource Conservation and Recovery Act (RCRA) which non-hazardous secondary materials when burned in a combustion unit are or are not solid wastes. Ifa nonhazardous secondary material is not a "solid waste" under RCRA, and is burned in a combustion unit, then the unit would be subject to the applicable CAAsection 112requirements. On the other hand, ifthe material is considered a "solid waste," then the combustion unit would be subject to the CAAsection 129 requirements. In general, the proposed rule identified non-hazardous secondary materials burned in combustion as solid wastes except under the following circumstances: 1) when used as a fuel that remains within the control ofthe generator and it meets the legitimacy criteria; 2) when used as an ingredient in a manufacturing process (whether by the generator or a third party) that meets the legitimacy criteria; 3) when the non-hazardous secondary material has been sufficiently processed to produce a non-waste fuel or ingredient product that meets the legitimacy criteria; and 4) when, through a case-by-case petition process, it has been determined that non-hazardous secondary material handled outside the control ofthe generator has not been discarded and is indistinguishable in all relevant aspects froma fuel product. The proposal identified several factors that the person whogenerated the non-hazardous secondary material would need to consider in determining whether the material would qualify as a legitimate fuel or ingredient. Thosefactors include: (1) whether the material is handled as avaluable commodity; (2) whether it has a meaningful heat value (in the case of a fuel) or it is used to produce avaluable product (in the case ofan ingredient) ; and (3) whether it contains contaminants at levels comparable to the levels found in thevirgin products that it is replacing.

Internet Address (URL) 0 http //www epa.gov Recycled/Recyclable 0 Printed with Vegetable Oil Based Inks on 100%Postconsumer, Process Chlorine Free Recycled PaperThe proposal also requested comment on two other approaches. The "Alternative

Approach" attempted to define solid waste as broadly as possible, while still being legally defensible. Under this alternative, only fuels or ingredients that remain within the control ofthe generator and meet the legitimacy criteria would not be solid wastes. The Agency also took comment on the approach that is most supported by environmental groups: that all nonhazardous secondary materials when combusted are solid wastes and would be subject to the section 129 CAArequirements. TheAgency solicited comments and information on many ofthe issues you mentioned in your letter. I appreciate your comments and we will ensure that your letter is entered into the rulemaking docket (EPA-HQ-RCRA-2008-0329) . Again, thank youfor your letter. If you have further questions, please contact me or your staff may call Carolyn Levine in EPA's Office ofCongressional and Intergovernmental Relations at (202) 564-1859.