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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


WASHINGTON, D.C. 20460

THE ADMINISTRATOR 

The Honorable Ron Wyden 

United States Senate 

Washington, D.C. 20510 

Dear Senator Wyden: 

I appreciate the opportunity to meet with you on June 16, 2011, regarding the Environmental 

Protection Agency's (EPA) Non-Hazardous Secondary Materials (NHSM) rule, the Boiler 

Maximum Achievable Control Technology (MACT) rule, and the Commercial and Industrial 

Solid Waste Incinerators (CISWI) rule. Thank you for your constructive engagement on these 

priority issues. We are currently exploring various pathways under existing authority to address 

your concerns. 

As you know, the Boiler MACT and CISWI standards are currently subject to an administrative 

stay. Today, as part of a filing with the United States Court of Appeals for the District of 

Columbia Circuit, the EPA announced the intended schedule for reconsideration of the boilers 

and CISWI rules. To ensure that the agency's standards are based on the best available data and 

that the public is given ample opportunity to provide additional input and information, the 

agency intends to propose the reconsideration rule by the end of October 2011 and issue a final 

rule by the end of April 2012. This is the best approach to establish technically and legally sound 

standards that will bring significant health benefits to the American public. 

e believe that this stay and the reconsideration period will provide ample time to 

administratively address the issues raised by various stakeholders on these corresponding rules. 

The NHSM rule, which we discussed in our meeting, aims to ensure that the burning of solid 

waste is subject to appropriate emission controls required under the Clean Air Act and that 

exposure to harmful pollutants is minimized. We understand that biomass derivatives have long 

been used for energy purposes in the wood products industry and we believe our rule allows such 

use to continue without being subject to the CISWI standards, provided that criteria, referred to 

as 'legitimacy" criteria, are met. 

Since promulgation of our rule, questions have arisen about how these criteria will be applied 

and our goal has been to ensure that the flexibility provided by the rule is in fact realized. To that 

end, we have held several meetings with industry representatives to discuss and understand their 

concerns and to review newly available data. In addition, on June 21, 2011, my Assistant 

Administrator for Solid Waste and Emergency Response, Mathy Stanislaus, met with 

representatives of several industries that use biomass derivatives and other non-hazardous 

Internet Address (URL) • http//www.epa gov


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secondary materials as fuel to ensure that they understand the significant flexibility already 

afforded by the rule, and to discuss the EPA's concepts for further clarifying that flexibility. 

As part of that discussion, Mr. Stanislaus explained that one of the options that EPA is 

considering is issuing clarifying guidance regarding the Agency's legitimacy criteria. Such 

guidance is a useful tool that is often used under the Resource Conservation and Recovery Act 

(RCRA) to address these types of issues. The guidance could provide a clear guidepost for 

comparing traditional fuels with secondary materials. It potentially could clarify that certain nonhazardous secondary materials would not be considered solid waste when combusted and that the 

units combusting those materials can continue to be used as fuels without having to meet the 

CISWI standards. Mr. Stanislaus requested that the industry representatives provide the Agency 

with supporting data on traditional fuels that could further inform the development of such 

guidance, and asked for feedback on the approach he outlined. In addition to this approach, the 

Agency is also exploring other options. 

We recognize that stakeholders have also raised other issues with the NHSM rule. We are 

continuing to evaluate those issues expeditiously. 

I believe we have made significant progress in addressing the concerns raised by the industry. I 

will continue to watch the issue closely and keep you informed. My goal is to bring these issues 

to closure as soon as possible.