Editors Note: The U.S. EPA has proposed revising the solid waste definition, including for C&D, as part of an overall change in the regulations for boilers. The whole process was taken because of a lawsuit the EPA lost to the Sierra Club regarding incineration of waste tires. For C&D it is the wood biomass product that is part of this evaluation. The EPA asked for comments on its proposal, which can be found on the EPA Web site, or the CMRA can e-mail you the Federal Register notice regarding the action. Below are comments submitted to the EPA in response to the proposal.Comments of Recovery 1, Inc.

In 1993, when our company began operations, all of the materials we process were destined to landfill disposal. To this day, everything that comes into the front of our plant is considered, “waste” including stumps and brush. Therefore, we maintain a “Conditional” Solid Waste Handling Permit, (Permit No. 27-704). Primary permit oversight is provided by the Tacoma-Pierce County Health Department.

The material we accept is separated, processed and shipped to others who consume it as an ingredient in their manufacturing processes or as a finished product ready for use as is. The most consistent end use market in our finished product offering has always been “Wood Derived Fuel.”  

“Wood Derived Fuel” is a unique product designed to address the issues revolving around the use of construction and demolition (C&D) wood waste as a fuel in industrial boilers. Washington State Solid Waste Handling Standards Chapter 173-350 WAC defines Wood Derived Fuel as: Wood pieces or particles used as a fuel for energy recovery, which contain paint, bonding agents or creosote. Wood Derived Fuel does not include wood pieces or particles coated with paint that contain lead or mercury, or wood treated with other chemical preservatives such as pentachlorophenol, copper naphthanate or copper-chrome-arsenate.

Our largest consumer of Wood Derived Fuel generates steam used to pulp wood, manufacture paper, recycle cardboard, provide heat for lumber mill dry kilns and produce electricity.

Our receiving protocol includes full color camera inspection of loads as they and set on the scale. As part of the weigh-in process, we record trucking company name and license plate number; customer name and jobsite location including city, county, state and nation; and material type.

Demolition and renovation projects must be cleared before acceptance. Asbestos documentation proving the project was inspected and abated before materials are delivered to our site must be provided. We do not accept any asbestos—all test results must report as “Non-Detect.” Inspection of the loads happen as they are unloaded. Seven Certified Asbestos Inspectors are employed to help ensure we do not accept contaminated materials. Undocumented suspect asbestos materials found hidden in the load are tested on site using Polarized Light Microscopes and a Phazir Asbestos Analyzer. We have zero tolerance for asbestos, any asbestos contamination results in reload and rejection.

Painted surfaces are tested for lead using a Niton XRF Analyzer. Loads containing painted surfaces exceeding 0.5-mg/cm2 are rejected, (1/2 USEPA limit of 1-mg/cm2). LBP contaminated loads are reloaded and rejected. (A pre-demolition lead inspection service is available to contractors and building owners who want to maximize recycling of theirbuildings.) Loads contaminated with broken fluorescent light tubes or other signs of mercury contamination are rejected.

A total of 2.1% of the building debris loads delivered to the facility between January 1, 2010, and July 18, 2010, were rejected. Materials accepted for processing are sent to various areas of the plant. Co-mingled C&D debris is machine sorted; screened; physically inspected and sorted on the primary sort line; shredded; passed under a self cleaning electro-magnet for ferrous metal separation; physically inspected and sorted on the secondary sort line; delivered over a self cleaning permanent magnet for ferrous metal separation; processed in a hammer mill; passed under a self cleaning electro-magnet for ferrous metal separation; screened to proper size (oversized materials are returned to the hammer mill); passed under a self-cleaning permanent magnet for ferrous metal separation; and stacked for shipment as Wood Derived Fuel.

Clean wood is delivered directly to the shredder. Clean wood suitable for mulch production is screened to the appropriate size, passed over a self cleaning permanent magnet and delivered to the colorizing system where it is dyed using naturally occurring colors and stockpiled for sale as “designer mulch.” Current colors include red, black, dark walnut and natural.

Creosote Treated Railway Cross Ties are processed separately as we only have one customer permitted to accept the creosote Wood Derived Fuel at this time. Ties are sheared and delivered directly to the shredder for processing through the rest of the system.

Gypsum wallboard is delivered to the gypsum processing system where it is machine sorted to remove steel studs and other large, non-gypsum materials. It is delivered to a in-feed conveyor and passed under an self cleaning permanent magnet for ferrous metal separation; dropped on a sort screen for pre-sizing, manual inspection and sorting; crushed; screened to remove paper and other non-gypsum materials; and conveyed to the load out bin and loaded in trucks for delivery to the end users.

End uses include Portland cement, gypsum wallboard and agricultural supplement. Nylon-6 carpet is identified using a Phazir carpet analyzer, segregated, baled and shipped to Shaw Industries were it is converted into caprolactam, the basic building block for Nylon-6.

Vinyl-backed carpet is identified, segregated, baled and shipped to Tandus were it is converted into new backing for new carpeting. Other face fiber types of carpet (PP, PET, Nylon-6.6) are shredded and used as a sorbent for a regional waste processing company. Urethane foam is segregated and baled for shipment to various foam recycling companies.

Cardboard (OCC) is baled and shipped to a local paper mill where it is converted into new liner board. Film plastic, PVC siding and mixed rigid plastics are baled and shipped to various plastic recyclers in the United States, Canada, China, India and Vietnam. Fiberglass insulation and ceiling tiles are baled and stockpiled until truckload quantities are generated for shipment to a regional ceiling tile manufacturing company. Steel, stainless steel, copper wire, copper pipe and aluminum are extracted and delivered to a local metal recycler for further processing. Rocks, bricks, concrete, porcelain and tile are extracted and delivered to a local aggregate recycler for further processing. Electronic equipment, intact fluorescent tubes and refrigeration equipment is segregated and delivered to the appropriate processors of those materials. Putresible trash and other non-recyclable residuals are delivered to the waste transfer station for landfill disposal. Alternate Daily Cover is manufactured and delivered to a regional landfill for use as a replacement for clean soil in their facility.

Since beginning operation, we have processed 1.32 million tons of material. Wood Derived Fuel represents 890,000 tons of that total.

What will happen if Wood Derived Fuel is determined to be a waste, rather than a fuel?

Paper mills buy Wood Derived Fuel. Incinerator operators charge to incinerate waste.  The economics of processing wood to go to an incinerator will never work. Conversations with representatives of the paper mills we service indicate they will not pursue incinerator status; therefore they will not be able to use Wood Derived Fuel if it is deemed a waste. Even if the paper mill operators did pursue incinerator status, the definition of recycling is: “Transforming or remanufacturing waste materials into usable or marketable materials for use other than landfill disposal or incineration.” Therefore, we will no longer qualify as a recycling facility. The C&D debris recycling industry will be destroyed.

Recovery 1, Inc. has invested a tremendous amount of resources in equipment, testing and training to identify and eliminate potentially hazardous materials from the debris we accept for processing into Wood Derived Fuel. Now, after 17 years of operation during which time we have received national, state and local awards for our recycling efforts, I don’t know if I will have a viable business model going into 2011.

It is critical the USEPA follow Washington State’s lead and recognize Wood Derived Fuel’s value and importance in our nation’s ongoing efforts to replace fossil fuels.

Terry Gillis
General Manager
Recovery 1, Inc.


Comments of Earthjustice and the Sierra Club

The 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 facilities. The advance notice of proposed rulemaking (ANPRM) addressed here would 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 environment from the toxic emissions that waste incineration generates.

The ANPRM would exclude, among other things, scrap tires, scrap plastics, spent solvents, used oil, chemical laden paper mill sludges, 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 thousands of industrial facilities that burn these wastes would be exempted from meeting the incinerator 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 any new facility—or any one of more than 100,000 existing units at industrial 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 the new source of toxic pollution to which their children would be exposed.

Exempting these facilities from emissions monitoring requirements would mean the identity and quantity of waste burners’ emissions would be unknown to government and the public. Enforcement of emission standards would be practically impossible.

Exempting sources from operator training requirements would mean 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 Coordinated Rulemaking FACA) identified good combustion practices as a key control technology to reduce the emissions of hazardous air pollutants from combustion units. Those practices cannot be maintained by operators that are not highly trained. Combustion units have the potential to emit far greater quantities of hazardous air pollutants if they are operated improperly.

Thousands more waste-burning facilities would be exempted from any meaningful emission standards. The Clean Air Act requires control of air toxics through just two provisions: the incinerator requirements in § 129 and the requirements for hazardous air pollutant control in § 112. Although § 129 requires protective emission standards for all facilities that combust any solid waste material, § 112 requires such standards 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). Section 112 allows far less protective standards for “area” sources that fall below this threshold, 42 U.S.C. § 7412(d)(5), and the vast majority of the EPA’s existing standards for area sources require little in the way of emission reductions, controls, monitoring, reporting or any other measures that would protect the public from the effects of their toxic pollution. Remarkably, the 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 account 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, the 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 exempted from any obligation to inform the public and the government about their operations, 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 waste advanced in the January 2 ANPRM would not necessarily stop with the direct impacts summarized above. As explained in more detail below, that definition is flatly unlawful as well as arbitrary, and would likely be vacated by a court if it were promulgated.


I.
It may be suggested by advocates for the ANPRM approach that the EPA could use its discretion under § 112 to set sufficiently protective emissions standards and other requirements for area sources that burn tires, used oil and other waste. Such argument ignores: (1) the EPA already has issued almost all of its area sources standards and is unlikely to revise those standards in the near future; (2) issuing protective standards on a purely discretionary basis under Clean Air Act § 112 would be far more difficult politically and practically than issuing protective standards expressly required by Clean Air Act § 129; and (3), reflecting that reality, the vast majority of the EPA’s existing area source standards require little or no reductions in emissions, little if any monitoring, and establish no siting, permitting or operator training requirements. In short, the notion that because the EPA theoretically can issue stronger standards for area sources under § 112, communities located near area source waste-burners would not be deprived of health and environmental protection if the definition of solid waste in the ANPRM were finalized is both wrong and dangerous.

Crucially, the definition of solid waste suggested by the ANPRM would compromise both the legal and substantive integrity of the EPA’s forthcoming air toxics rules for industrial and commercial boilers and process heaters (Boilers Rule) and for commercial and industrial solid waste incinerators (CISWI Rule). Clean Air Act § 129 provides the term solid waste “shall have the meaning[] established by the Administrator under the Solid Waste Disposal Act” (RCRA). 42 U.S.C. § 7429(g)(6). It also makes clear any facility that 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, the EPA’s definition of solid waste will necessarily determine which units are regulated as incinerators and which are regulated as boilers. If the EPA gets the definition of solid waste wrong, it may skew the population of units that are subject to the Boilers and CISWI rules respectively. For example, if the EPA’s definition is underinclusive, incinerators will be classified improperly as boilers. Because standards under both § 129 and § 112 must be based on the actual performance of the best sources in the relevant category, putting the wrong 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 the toxic air pollution from more than 100,000 facilities. Collectively, they will represent one of the most significant air pollution control efforts the EPA has ever undertaken. So long as the EPA defines solid waste appropriately, these rules will provide enormous reductions in both hazardous air pollutants and criteria pollutants, and will yield enormous public health benefits including lives saved, sickness and medical expenses avoided, and productivity preserved.

Both rules are long overdue. The Clean Air Act required the EPA to issue its CISWI Rule no later than 1993 and its Boilers Rule no later than 2000. The EPA has already deprived the public of statutorily mandated health protection for far too long, and it would be the height of irresponsibility for the agency to issue a legally vulnerable definition 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 risks just that outcome.


II. Previous Rulemakings for CISWI and Boilers  

The EPA does not define solid waste 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 November 15, 2000. Contrary to the EPA’s claim in the ANPRM, the EPA has not “fulfilled its statutory duty under CAA section 129,” 74 Fed. Reg. at 43. The EPA’s CISWI Rule under § 129 was vacated as flatly unlawful in 2007, NRDC, 489 F.3d at 1257-1258, and it is well established that vacatur of a rule returns the EPA to a status quo where its statutory obligation to issue the rule is unfulfilled. More than 15 years after the statutory deadline, the EPA still has not issued the mandated protections against toxic emissions from CISWI. Nor has the EPA met its statutory obligation to promulgate the Boilers Rule under § 112. That rule was also vacated in NRDC, and is now more than nine years overdue.

The EPA’s failure to provide statutorily mandated protections from scores of thousands of CISWI and boilers results from its unlawful attempts to avoid issuing § 129 standards for facilities that recover energy from waste combustion. When the EPA first proposed § 129 standards for CISWI in 1999, the agency attempted to define solid waste under the Clean Air Act to exclude waste burned for energy recovery. 64 Fed. Reg. 67092 (November 30, 1999). Commenters pointed out the proposed definition was unlawful and arbitrary. Comments of the Sierra Club, California Communities Against Toxics and Desert Citizens Against Pollution (1999 Comment), 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 recovery from incinerator regulations, the 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 “commercial and industrial solid waste” and “commercial and industrial solid waste incineration unit” that excluded units that recover energy from waste combustion. The Sierra Club challenged the rule in court, and the Louisiana Environmental Action Network and the National Wildlife Federation filed a petition for reconsideration pointing out that this new attempt at shielding units that burn waste with energy recovery was unlawful and arbitrary as well. 2001 Reconsideration Petition, Ex. B hereto, at 2. The EPA granted the reconsideration petition. August 17, 2001, Letter from Seitz to Pew, Ex. C hereto. The agency also sought and obtained a voluntary remand of its CISWI Rule, representing to the court and the public it “recognizes the date for establishing emission standards and related requirements for commercial and industrial incinerators passed in 1993” and that “EPA intends to act with all due speed in re-promulgating” 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, the EPA did not re-propose its CISWI standards until 2004, at which point it issued definitions of “commercial and industrial solid waste” and “commercial and industrial solid waste incineration unit” that were functionally the same as the unlawful ones issued in its 2000 Rule. 69 Fed. Reg. 7390 (February 17, 2004). Earthjustice submitted comments explaining again, in detail, that these definitions were unlawful and arbitrary. Comments of Earthjustice (2004 Comments), Ex. E hereto, at 1-8. The 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, the EPA’s recalcitrant refusal to regulate facilities that burn waste and recover energy from the process as incinerators has deprived scores of thousands of communities across the country of much needed protection from toxic pollution. This regrettable history makes it all the more imperative the EPA now issue a definition of solid waste both legally defensible and protective of public health.


III. The EPA’S January 2, 2009, ANPRM

In the last days of the Bush administration, the EPA set out to circumvent the decision in NRDC by inventing yet another rationale for exempting 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.

The ANPRM does not contain a suggested definition of solid waste. Rather, it provides several examples of “secondary materials” the  EPA 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 legitimate “alternative” fuels that have not been previously discarded; secondary materials used as legitimate “alternative” fuels resulting from processing of discarded secondary materials; secondary materials used as legitimate ingredients; and hazardous secondary materials that may 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 essentially claims that materials that have been discarded in reality are not “discarded” for regulatory purposes. For example, the EPA asserts that some whole and shredded tires burned in various combustion units 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.

The EPA also makes the surprising claim materials can be viewed as a non-waste even “if they have been discarded.” Id. (emphasis added). In particular, the EPA argues in many cases, the secondary material may have been discarded, but later processed into a legitimate fuel product or ingredient, ready for direct use in an industrial process. In such cases, the processed 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 used oil was “originally discarded,” it argues the “fossil fuel component” of used oil can become a non-waste again if it is “extracted from the non-fuel contaminants.” Id. at 58. Following that notion to its logical conclusion, the EPA also seeks comment on whether discarded materials can become a non-waste even if they are not processed in any way. Id. at 59.

The EPA also suggests 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.



IV. 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 the EPA’s claims in the ANPRM, “any” material that has been “discarded” is a solid waste. The EPA lacks statutory authority to issue a definition of “solid 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 agricultural operations, and from community activities, but does not include solid or dissolve materials in irrigation return flows or industrial discharges which are not point sources subject to permits under section 1342 of Title 33 or source, special nuclear, 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 that has been “discarded” is a solid waste.

The case law confirms this point. In the lead case interpreting the term “discarded,” the D.C. Circuit held “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 meaning of “discarded,” the Court explained:

“Oil recyclers typically collect discarded used oils, distill them, and sell the resulting material for use as fuel in boilers. Regulation of those activities is likewise consistent with an everyday reading 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 1187n14.

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 authority 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 slag was indisputably waste when it left the electric arc furnace and nothing in RCRA or AMC I required the agency to stop treating the slag as waste when it arrived at the reclamation facility. Id. at 741. The Court went on to remind the EPA that the agency needed to square its interpretation of “discarded” with RCRA’s purpose of establishing a cradle-to-grave regulatory structure for handling hazardous waste and encouraged the EPA to “recognize that it must comply with its statutory mandate to prescribe treatment for the disposal of K061 slag.” Id. at 741-742.

Ten years later, the D.C. Circuit 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. Assn’ 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 subsequently 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 recycling purposes from spent car and truck batteries are not waste. 996 F.2d 1126, 1130-1132 (11th 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 not “discarded” when it was recycled and used in roadbeds. Owen Electric Steel Co. v. Browner, 37 F.3d 146, 150 (4th Cir. 1994). Quoting ILCO’s holding on batteries, it observed:

Somebody has discarded the battery in which these components are found. This fact does not change just because 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 materials would be flatly unlawful. Likewise, 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 Assn’ 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 the EPA under the Bush administration; it is not a practice that should be condoned by the agency or its lawyers under this administration or ever again.

The 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 meaning of the term discarded is ambiguous. The EPA has made such argument before without success: the EPA thinks in light of API and AMC II, “discarded” is now ambiguous and thus we should defer to its interpretation. To accept the 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.

Assn’ of Battery Recyclers, 208 F.3d at 1056. AMC I, API, and Assn’ of Battery Recyclers all make clear that the term “discarded” unambiguously 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, subsequent panels are bound by that decision until and unless it is changed by the court en banc.”).

Even if the term “discarded” were ambiguous in some regard, such ambiguity would not extend to support the EPA’s argument that waste which is processed and reused is not waste. It is precisely on this point that AMC I and its progeny have held the term is clear. Indeed, not even AMC II and SFAF—both of which are questionable precedent at best—suggest that materials such as used oil, tires and other once-discarded materials are not waste. Although AMC II incorrectly states that API “concluded that the term ‘discarded’ was marked by the kind of ambiguity demanding resolution by the agency’s delegated lawmaking powers,” it still finds the EPA’s interpretation of “discarded” 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 industry “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 reuse 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 were not recycled in a continuous process by the generating industry itself).

B) The Exemptions Conflict with the EPA’s Prior Interpretation of “Discarded.”

As shown, the term “discarded” unambiguously has its ordinary meaning, and that meaning precludes the exemptions from the definition of “solid waste” espoused in the ANPRM. Even if the term “discarded” were ambiguous, however, 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), ‘may be detained beyond the removal period,’ applies without differentiation to all three categories of aliens that are its subject. To give these same words a different meaning for each category would be to invent a statute rather than interpret one. 543 U.S. 371, 378 (2005) (emphasis added).

The reasoning in Clark applies a fortiori here. The EPA already has interpreted the term “discarded” to include materials that are “burned or incinerated” or “recycled” 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 waste).” 40 C.F.R. § 261.2. The interpretation of “discarded” in the ANPRM is hopelessly inconsistent with the interpretation in 40 C.F.R. § 261.2. Regardless of whether the EPA believes 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 energy” or “used to produce a fuel” and to exclude such materials.

In any event, “discarded” is a term Congress used to delineate whether a material is a “solid waste,” not whether a “solid waste” is “hazardous” or non-hazardous. Classification as a “solid waste,” as the EPA itself has long recognized, is a necessary precondition 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 approach to interpreting “discarded” were not blatantly at odds with the EPA’s prior interpretation of this statutory term, the notion the EPA can interpret “discarded” differently for the purposes of defining hazardous and non-hazardous solid waste is wrong on its face. The ANPRM assumes—incorrectly and without explanation—the EPA may and should interpret “discarded” differently 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 Would 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 frustrate that statute’s purpose. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 538 (2007) (rejecting the EPA interpretation of Energy Policy and Conservation Act that would have frustrated Clean Air Act’s purpose).

Clean Air Act § 129 makes clear Congress intended the agency to promulgate protective incinerator regulations for all facilities that combust any solid waste material, regardless of whether such facilities recover 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: “(A) materials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose of recovering metals; (B) qualifying small power production facilities, as defined in section 796(17)(C) of Title 16, or qualifying cogeneration facilities, as defined 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 burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes; or (C) air curtain incinerators provided such incinerators only burn wood waste, yard wastes and clean lumber, and such air curtain incinerators comply with opacity limitations to be established by the Administrator by rule.” 42 U.S.C. § 7429(g)(1).

The broad swath of exemptions contemplated in the ANPRM would 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 standards regardless of whether 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 Congress’ 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 effectively eliminate any purpose or function for § 129(g)(1)’s specifically tailored exemption from § 129 for units “that burn tires or used oil.” If Congress thought 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.” Promulgating a definition of solid waste that excludes these materials would conflict directly with Congress’ intent.

Fourth, Clean Air Act § 129(h)(5) shows that Congress viewed the universe of “fuel” to consist of “waste” on the one hand and “fossil fuel” on the other. 42 U.S.C. § 7429(h)(5). It provides incinerators subject to § 129 “shall not be a utility unit as defined in subchapter IV-A 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 periods to be determined by the Administrator, is from a fuel (including any waste burned as a fuel) other than a fossil fuel.” Id. (italics in original, underscoring added). Congress was well aware that waste can be burned as fuel, but viewed that fact as irrelevant. The ANPRM approach would override Congress’ plainly expressed intent that facilities that burn non-fossil fuels 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 and waste-burning facilities 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, the EPA’s previous attempts at exempting 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 Hazardous Waste Violate RCRA and Conflict with the 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 are not solid wastes. 74 Fed. Reg. at 58-59.

Both of the EPA’s comparable fuels rules are flatly unlawful and are subject to pending petitions for review in the D.C. Circuit. These cases have been stayed while the 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 hereto (“Comparable Fuels Comments,” Ex. F) and fully incorporated by reference herein. Extending those exclusions in any way would conflict directly with the EPA’s decision to reconsider them. Further, a determination that any of the materials covered by either of the comparable fuels rules are not solid wastes at all would violate both RCRA and the Clean Air Act for the reasons 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 wastes to be burned in uncontrolled or under-controlled facilities.

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.

The EPA must issue a definition of solid waste that protects public health and respects both RCRA and the Clean Air Act. To do so, the agency must abandon the approach set out in the ANPRM and adopt a new one based on the following two principles: (1) any material that has been discarded once is “discarded” and therefore a solid waste; and (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 the EPA’s CISWI and Boilers rules at risk of another vacatur. Most importantly, a definition based on these principles will go a long way to protecting public health in communities located near facilities 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 requirements Congress enacted for incinerators. Without these requirements, families in thousands of communities across the country—many of which are already badly overburdened with toxic pollution—will suffer from the emissions of poorly controlled waste-burning that they can do little or nothing to avoid or prevent.


Comments of NEWMOA

Representatives of the Solid Waste Programs in the states of Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont have prepared these comments for submission through our association, the Northeast Waste Management Officials Association (NEWMOA). These comments are on the Identification of Non-Hazardous Secondary Materials that are Solid Wastes, Proposed Rule, published in the Federal Register on June 4, 2010.

The comments from the NEWMOA-member states center on two main themes: All NEWMOA-member states regulate the use of non-hazardous secondary materials (NHSM) as fuel or ingredient and want to maintain regulatory authority over these materials and their disposition; and the NEWMOA-member states want to continue to maximize the diversion of NHSM from disposal by continuing the uses that have already been carefully reviewed and approved through state regulatory programs.


Maintaining State Regulatory Control over Non-Hazardous Secondary Materi-als and Their Disposition

All of the NEWMOA-member states have well-established programs that review and approve the use of NHSM as fuel or as an ingredient in a manufacturing process. While some states have named their programs differently, in general they are known as beneficial use determination (BUD) programs. BUD approvals are individual authorizations for the beneficial use of a solid waste in a manufacturing process to make a product or as an effective substitute for a commercial product, including use as fuel. The authorization has to be consistent with federal Resource Conservation and Recovery Act (RCRA) regulations, and the state must find that such solid waste can be reused without harming or presenting harm to public health safety or the environment.

Across the NEWMOA-states, longstanding state definitions of solid waste were specifically crafted to ensure NHSM remain designated as wastes—even if they can appropriately be used as fuels or have other value—in order to ensure continuing statutory authority with regard to them, and to subject their management, processing and use to an appropriate level of regulatory scrutiny. A solid waste is not subject to disposal requirements only if the applicant applies for and receives a BUD (and complies with all of the conditions of that BUD), or an explicit exemption or BUD has been established in the regulations. The NEWMOA-member states believe continued state oversight of the use of NHSM as fuel or as ingredient is required for protection of human health and the environment and want assurance their regulatory authority is not undermined by this proposed rule.

Clarification is needed as to the impact of the proposed rule on state solid waste regulations. States have promulgated solid waste regulations that in many instances are more stringent than the federal solid waste regulations, and relate to the NHSM discussed in the proposed rule. The USEPA’s final rule must clearly confirm: 1) it will only affect the implementation of Clean Air Act regulations; 2) if a NHSM is defined as a non-waste fuel or ingredient under the proposed EPA regulations, that determination would not affect a contradictory definition of that material as a solid waste under state solid waste regulations, or a state’s ability to regulate the management of these materials as solid wastes prior to combustion; and 3) the rule will have no effect whatsoever on state solid waste regulations or laws, including solid waste management facility regulations, waste transporter regulations or state BUD regulations. Within the final rule, the EPA should specifically state that definition of solid waste in the rule only applies to determinations of whether the emissions from a facility burning a NHSM as a fuel or ingredient are to be regulated under Section 112 or Section 129 of the Clean Air Act (CAA).

The NEWMOA-member states also have additional concerns with the proposed rule as it relates to regulatory authority over NHSM used as fuel or ingredient:

Self Certification: The self-certification aspect of the rule in which a user of a NHSM for fuel or as an ingredient determines whether the “legitimacy criteria” have been met is a significant concern of the NEWMOA-member states. There is potential for inconsistency in how these determinations are made by users, and the potential for abuse would be significant. As written, there is no opportunity for states to weigh in on a generator’s or processor’s self-determination with regard to whether a NHSM is exempt and whether it in fact meets all the legitimacy criteria. What if the state regulatory agency (or USEPA) disagrees with the generator’s decision? The NEWMOA-member states strongly recommend that all use of a NHSM as fuel or ingredient be subject to review and approval. The review and approval process focuses regulatory resources at the “front end” to prevent inappropriate reuse and creates a framework for oversight and enforcement. Enforcement associated with self-implementing legitimacy criteria would be much more labor and resource intensive because significant effort would be required to find violators, establish violations and deter future violations.

Dual Regulatory Systems: The NEWMOA-member states are concerned with the potential for creation of a dual regulatory system that will confuse facilities that process or use NHSM. For example, the proposed rule appears to establish a dual system whereby NHSM that meets the legitimacy requirement and is managed by the generator (who maintains control over the NHSM 3 and uses it as fuel in a combustion facility regulated under Section 112) is not a solid waste; whereby the same NHSM that is discarded remains a solid waste, resulting in the combustion facility that wants to use it being regulated under Section 129 even though the combustion unit may be identical.

Legitimacy Criteria: State BUD review processes evaluate a solid waste using legitimacy criteria similar to those proposed by the USEPA. A possible alternative approach in the proposed rule might be to rely upon the individual state beneficial use determinations, in those states that have appropriate programs, to determine whether a waste qualifies as a legitimate fuel or ingredient, thus eliminating the need for self-certification or petition for a “non-waste determination” by the USEPA. At a minimum, the USEPA should use the state BUD review processes to develop clarifications as to how to apply the legitimacy criteria.

The NEWMOA-member states re-quest the final rule provide more clear definitions of key terms and guidance about how those terms are to be applied.

Valuable Commodity: The proposed rule does not provide clear instruction about how to determine whether a material is a “valuable commodity” and what kinds of management practices a facility must incorporate in order to be able to demonstrate a material is being managed as a valuable commodity.

Meaningful Heating Value and Use as a Fuel: A more specific definition is needed to determine whether a material provides meaningful heating value.

Contaminant Levels: A NHSM should have contaminant levels that are comparable to those in traditional fuels/ingredients; however “comparable” needs to be defined.

•The rule should be clarified to specify the traditional fuel NHSM is compared to should be the fuel that would be used if the NHSM was not available.

•For most NHSM used as fuel, some contaminant levels exceed those in the traditional fuel while others are lower. Likewise, a contaminant might be present in the NHSM but non-detect in the traditional fuel or vice versa. Relative risk must be taken into account. For example, the “comparable” standard should be established as a primary determining factor, but a secondary “relative significance” determination should be allowed in situations where a low-impact contaminant without environmental, health or product quality impacts is present in concentrations above those found in traditional raw materials or is adequately controlled by air pollution control equipment. A one-size-fits-all “bright line” approach to comparable is not appropriate. Leaving the determination of what is comparable up to the user is also not appropriate.

•An issue that often arises in review of BUD applications is the state and the applicant often disagree on how much data needs to be collected about contaminant levels in a material and how to analyze that data. Under a self-determination process an applicant is likely to perform inadequate characterization.

•In many cases, the use of NHSM as fuel is used as a percentage of the use of “traditional” fuels at the facility. A facility might not burn fuel from NHSM as the primary fuel. The concept of loading rate is important when comparing contaminant levels—the relative contribution from use of NHSM is a factor that should also be considered. This reasoning is also applicable to the use of NHSM as ingredients in a manufacturing process.

Public Process: There is also no public process in the self-determination process established by the USEPA’s proposed rule. Combustion of NHSM is almost always controversial with the public and there is a lack of transparency in the proposed decision-making process. In most NEWMOA-member states, the BUD approval process provides opportunity for public comment and/or the permits issued are appealable.

Recordkeeping and Reporting: All facilities should, at minimum, be required to provide notification to the appropriate state(s) and the USEPA of their proposed use of NHSM as fuel, and documentation which establishes NHSM meets the legitimacy criteria. Without notification there would be no reliable way for states to track and regulate these materials.

Petition Process: In the proposed rule, the non-waste determination process whereby a facility may apply to the EPA for a determination is vague. The states would prefer that such determinations be made through state BUD programs, as they are already in place, have more explicit standards and provide for more public process. In the event the final rule empowers the USEPA to make non-waste determinations, the final rule should also require the USEPA to directly notify state waste programs of non-waste petitions for use in CAA Section 112 facilities. The rule should also require state concurrence with the USEPA’s decision.


Negative Implications on Diversion of Materials from Disposal

The USEPA and the states have goals to conserve resources and maximize the diversion of materials from disposal. In addition, each of the NEWMOA-member states regulates the use of NHSM as fuel or ingredients through their BUD program and plans to continue to do so. The apparent paradox of the proposed rule is it has the potential to be both too restrictive and too lenient at the same time. It has the potential to exempt certain facilities the NEWMOA-member states currently review and approve, while at the same time require other facilities the NEWMOA-member states also review and approve, to comply with new processing and/or emissions standards that will likely force them to shut down or discontinue using an appropriate resource.

The rule as proposed would likely interfere significantly with the appropriate reuse of resources and increase the quantity of material disposed. Uses of NHSM as fuel or ingredients, which a NEWMOA-member state has thoroughly reviewed and approved might no longer be viable under USEPA’s proposed rule. Markets for some NHSM could be eliminated and likely result in the NHSM remaining unprocessed and requiring disposal. This would increase demand for virgin materials and fuels, require disposal of materials that have value, and consume landfill space—all negative outcomes that are unnecessary.

The NEWMOA-member states agree NHSM that have been discarded are generally considered “solid wastes” and units that burn these materials are subject to the CAA Section 129 incineration standards if the NHSM have not been processed into a legitimate ingredient or fuel. The key terms here are “processed” and “legitimate.”

Adequate Processing: When NHSM has been processed to produce a fuel or ingredient product that meets the legitimacy criteria and the specification set by the user of the fuel/ingredient, it should be considered adequately processed for the purposes of the rule for use at facilities regulated under CAA Section 112. Reducing the size of the incoming NHSM to produce a fuel material that meets a size specification should be considered adequate processing. BUD programs in the NEWMOA-member states consider the amount of processing and the specification of the end user before granting a BUD approval. Maintaining state regulatory control over all NHSM whether they are or are not considered a solid waste under the proposed rule would address USEPA concerns regarding speculative accumulation.

Comparable Contaminants: Another concern is whether the ingredient or fuel product produced is “legitimate.” As stated previously, BUD programs in the NEWMOA-states address the legitimacy criteria contained in the proposed rule during the BUD review and approval process. The NEWMOA-member states have concerns regarding the legitimacy criteria on contaminant levels.

Unintended Consequences: NEWMOA-member states are concerned there will be severe unintended consequences leading to increased disposal of NHSM if the proposed rule is not modified. There is significant concern with regard to the continuing interest and willingness of fuel users to continue to accept NHSM as fuel substitutes. The combustion of certain NHSM in boilers subject to CAA Section 112 in the region is a positive and important aspect of management of some materials such as scrap tires and C&D wood.

Scrap Tires: The presence or absence of steel in scrap tires should not be a factor in the legitimacy of processed tires as a fuel (known as tire-derived fuel, TDF). To the extent that air emissions are a concern with the combustion of tires, it is not a result of the presence of steel. Facilities that require metal removal do so as a result of operational requirements, not to remove metals to meet air emissions requirements. The level of processing required should match the facility’s operational specifications. States that have approved the use of TDF have determined, after thorough analysis and review, it is a beneficial use of tires without the steel removed. A major user of TDF in the NEWMOA-member states are paper mills in Maine where the TDF supplements the use of coal. Reducing the quantity of combusted coal provides significant environmental benefits, including reductions in mercury emissions. We are concerned paper mills and other current users of TDF would choose not to invest capital resources to upgrade from Section 112 to Section 129 facilities in order to be able to keep using TDF that contains steel, and instead cease to accept it.

Requiring an unnecessary processing step to remove the steel would add both cost and air emissions to the processing. Processing facilities that do not currently have the capability of removing steel would have to make capital investments. The additional processing would require additional handling, increasing operation costs, and this additional processing requires the use of fuel to power the equipment, creating unnecessary air emissions, including greenhouse gas emissions. The added cost to processing is likely to make the economics of processing tires for TDF unfavorable. TDF processors would have to increase the price of TDF to recoup the added costs and the increased cost might cause TDF to no longer compete with “traditional fuels.” The result is likely to be millions of scrap tires generated in the NEWMOA-member states that are currently used as TDF would not have continued markets. Alternative markets for scrap tires are unlikely to be able to absorb the millions of tires that would no longer be able to be used for TDF under the proposed rule. All of the NEWMOA-member states discourage or ban the disposal of scrap tires in landfills because their physical characteristics make them ill-suited for burial. In addition, tires consume significant space in landfills, increasing the need for new landfills. NEWMOA-member states are concerned that without TDF markets, the illegal disposal of tires would increase and the tire stockpile problems the states have worked so hard to remediate would re-emerge.

Construction and Demolition Materials: The one NEWMOA state that has Section 112 facilities that use C&D wood as a fuel is Maine. Maine has developed specifications specific to this product to ensure that C&D wood is adequately processed and meets legitimacy criteria, and that human health and the environment are protected. Maine regulations regarding fuel substitution can be found on the Web at: www.maine.gov/sos/cec/rules/06/096/096c418.doc in Section 6.

C&D material processors in several NEWMOA-member states rely on being able to sell processed C&D wood to facilities in Maine and Quebec, Canada. Many of these C&D processors have made significant investments into systems that use mechanical methods and human labor to recover high percentages of incoming material for reuse and recycling, including C&D wood and significantly reduce the amount of C&D waste sent to landfills for disposal or use as alternative daily cover (ADC). We are concerned biomass boilers would choose not to invest capital resources to upgrade from Section 112 to Section 129 facilities in order to be able to keep using processed C&D wood, and instead cease to accept it.

At a facility that processes C&D wood, some of the incoming C&D wood is coated and some not; some coatings contain contaminants of concern and some do not; and the coatings on C&D wood make up a small fraction of the total quantity of the processed wood. The NEWMOA-member states also do not approve the processing of railroad ties, telephone poles or pressure-treated wood into fuel intended for Section 112 facilities, or the use of this type of wood as fuel at Section 112 facilities. In addition, Maine requires users of processed C&D wood for fuel perform extensive sampling and analysis of the incoming material for certain chemical and physical parameters (including in part arsenic, lead, PCBs, asbestos, plastics and CCA treated wood), and use of the wood fuel must meet all other standards Maine has established for protection of human health and the environment. At biomass boilers in Maine, processed C&D wood is used as a supplement and is not the primary fuel. All of these factors should be considered when assessing the comparable contamination legitimacy criteria.

It is not practical or economical for coated C&D wood to be segregated and all of the pieces, large and small, run through a machine to remove the surface layer as the USEPA seems to suggest is feasible in the proposed rule. As with scrap tire processing, adding this expensive and unnecessary step changes the economics of the processing and affects the viability of the product as a fuel. If markets for the reuse of C&D wood are limited, several C&D processors would not have sustainable operations and the processing of all C&D materials would be negatively affected. The quantity of C&D material that ends up disposed or used as ADC in landfills would increase significantly. There would likely be C&D processing to reduce size and generate ADC, but the recovery and use of C&D material outside the landfill would decrease.

Although generation of ADC could be considered diversion from disposal, it should not be considered preferable or even equal to recovery for use outside the landfill. When C&D wood is not removed, it ends up in the landfill where it decomposes to generate methane—a potent greenhouse gas.

Used Oil: The proposed rule mentions off-specification used oil as one of the types of secondary materials affected by the rule. The RCRA Subtitle C rules issued in 40 CFR Part 279 were promulgated under the authority of two statutes—namely, RCRA Subtitle C and the Used Oil Recycling Act (UORA). In the proposed rule it appears the EPA has overlooked the subset of used oils regulated under Part 279 that are not “hazardous” under RCRA, but that are regulated under Part 279 as a result of UORA (specifically, used oils that do not exhibit a characteristic of hazardous waste). This could include not only on-specification, but also off-specification used oils. Most off-specification used oil is not burned as-is, but is instead blended with on-specification used oil or with virgin oil to meet the used oil specification in Part 279. If off-spec used oil is processed through blending to meet the used oil specification in Part 279, the resulting oil should be considered a legitimate fuel product as is currently allowed under Part 279.

Thank you for the opportunity to comment on the proposed rule. The NEWMOA-member states ask that you carefully consider the potential negative impacts of this proposed rulemaking and encourage the USEPA to modify the final rule to address the concerns raised in our comments.


Jennifer Griffith
NEWMOA
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Comments of SKB Recycling

SKB Recycling, LLC is a construction and demolition (C&D) debris processing and recycling company located in Minnesota. We operate an integrated C&D recycling system consisting of several facilities serving the Minneapolis/St. Paul market area. We recover and recycle many valuable materials from the waste stream including clean C&D-derived wood fuel. We would like to take this opportunity to offer comments and concerns regarding the EPA’s proposed rules concerning the identification of non-hazardous secondary materials as solid wastes.

We are primarily concerned with how the new rules may or may not affect clean C&D-derived wood fuels. The draft rules appear to allow clean C&D-derived wood fuels to be classified as not being a solid waste, although this is not clearly specified in the preamble. We intend to show clean C&D-derived wood fuel should be given a clear exemption, like other biomass materials, so this valuable fuel is not hampered with burdensome and costly approval processes.

One of the primary tests in determining if a material will not be considered a solid waste is if the material is considered a “traditional” fuel.  SKB has produced a clean C&D-derived wood fuel that has been used at energy generation facilities for more than 15 years.  Due to this historical record of use, we consider our fuel to be a traditional fuel.  Moreover, in the current preamble, “clean construction wood” is considered a traditional fuel—this could simply be modified to include the demolition fraction of clean C&D-derived fuel.

In addition, clean C&D-derived fuel also meets the test prescribed in the rule that the material must be sufficiently processed to not be considered a solid waste. In order to produce this fuel product, our processing system uses mechanical systems and hand sorting to separate clean wood suitable for fuel from other C&D materials (fines, plastic, bricks, painted wood, treated wood, etc.). After this process of segregating the clean wood material, the material is sized to meet the specifications of the boiler facility that accepts our fuel product. We have a substantial amount of money invested in equipment and labor to adequately process this material into a valuable fuel product, and for this reason, clean C&D-derived fuel meets the criteria of the test.

Furthermore, clean C&D-derived fuel meets the “legitimacy criteria” prescribed in the rule so the material can be demonstrated to be managed as a valuable commodity, to have a meaningful heating value, and to contain comparable or lower contaminant levels to other traditional fuels the boiler is designed to burn.  

1) Is the material managed as a valuable commodity?

Yes, SKB currently sells our clean C&D-derived fuel product for roughly $25-35/ton. The fuel is typically hauled to the boiler facility immediately after the fuel has been processed or is stored for short periods of time. Minnesota Beneficial Use Rules prevent this material from being stockpiled more than three years and it must be stored according to waste storage requirements until the product is used.

2) Does the material have a meaningful heating value?

Yes, several studies of the material have demonstrated C&D-derived biomass fuel to contain between 7,000-8,000 Btus. This clearly passes the informal threshold described in the rule preamble (5,000 Btu) and surpasses the heating value of virgin wood fuel (roughly 5,000 Btu).

3) Does the material contain contaminants at a comparable or lower level than other traditional fuels?

Yes, a study by the University of New Hampshire, “Life-Cycle Assessment of C&D Derived Biomass/Wood Waste Management” (Jambeck, Carpenter and Garner, September, 2007) noted the use of waste wood may reduce overall air emission. This happens if the wood reduces coal combustion because trace metals from coal combustion are eliminated. In addition, if the waste wood replaces green wood chips, which also contain traces of heavy metals, the higher Btu value of the waste wood reduces total wood combusted, offsetting the potentially higher metal content of the waste wood.

Should the EPA determine clean C&D-derived fuel does not meet the tests prescribed in the rule or a formal determination must be made in order to allow boiler facilities not currently permitted to burn solid waste, it could have devastating consequences on the C&D recycling industry, the boilers that use our fuel and the public. Specifically, it would harm the internal economics of our entire C&D recycling and processing operations if we were unable to have viable end markets for our fuel. Mixed C&D recycling depends on our ability to recover many different kinds of valuable materials from the waste stream—eliminating an important material and revenue source like clean C&D-derived wood fuel would have a devastating impact on our ability to recover other materials from the waste stream economically as well. Simply, there could be a potential domino effect that would impact our entire process.

Minnesota has mandates on electricity generators to produce a substantial percentage of their energy portfolio from renewable sources such as biomass (including C&D wood). Needlessly adding requirements to boiler facilities would make these goals much more difficult for Minnesota’s power companies to achieve. Given the greenhouse gas benefits of using fuels like clean C&D-derived wood fuel, it only adds to the importance of having fuels like this going forward.  

In conclusion, we again thank the EPA for addressing this important issue. The draft rule appears to allow clean C&D wood fuel to not be classified as solid waste, so we would request the rule be clarified for this fuel to be specifically included in the list of traditional fuels. Doing so would allow the material to be consumed without needlessly burdensome facility requirements or permitting obstacles.  



Ryan O’Gara
Government Affairs
SKB Recycling LLC


Comments of NSWMA

The National Solid Wastes Management Association (NSWMA) is the trade association representing private sector waste service companies. Our member companies collect and process recyclables and compost and collect and landfill municipal solid waste throughout the United States. Many of our member companies collect construction and demolition debris for processing into recyclable raw materials and for disposal. NSWMA members are keenly aware of the importance of the solid waste management industry, including our many construction and demolition debris management activities, in protecting America’s public health and environment.

We appreciate the complexity of the issues involved in this rulemaking. We also appreciate the time and effort the EPA has spent since RCRA was enacted in 1976 in trying to define when a material is a “waste” and when it is a recyclable. The complexity and consequences of this issue are of great importance to solid waste managers and to the public. We especially acknowledge the importance of distinguishing between “sham” recyclers and true recyclers. Sham recyclers evade regulation by claiming to process materials for recycling when, in fact, they are operating a transfer station for materials destined for disposal facilities. Legitimate recyclers process discarded materials into an end product they sell to a manufacturer or, in the case or wood generated at construction and demolition sites, as a fuel for a boiler. Sham recyclers “process” discarded materials and pay a tipping fee to a landfill or a waste-to-energy plant to dispose of those materials.

This issue is highly important to our members because of unfair competitive advantages sham recyclers enjoy. Sham recyclers do not play by the rules. As a result, they benefit from lower costs while threatening public health and the environment by their avoidance of regulation. We strongly support regulatory efforts to prevent sham recycling.

We are concerned in preventing one abuse, the EPA will create unintended barriers for legitimate recyclers and create a regulatory structure that will increase greenhouse gas emissions through greater use of fossil fuels, increase the cost of recycling, and increase the amount of material sent to disposal instead of being converted into a fuel or a recyclable.


C&D Wood Recycling: Processes and Environmental Benefits

Wood generated by construction

and demolition sites is collected by recyclers who want to process it into a variety of end products. One of those end products is a fuel for industrial boilers. When purchasing a fuel product,

the boiler operator takes into account the unique operating specifications of the boiler in regard to physical characteristics such as chip size, moisture content, percentage of allowable fines, etc.

In addition, the buyer does not want a fuel that contains chemicals or

substances that would lead to creation

of air emissions that are not allowed under the boiler’s state-issued air permit. In the first case, the boiler could be damaged. In the second case, the operator could be liable for permit violations. Failure in either regard will lead to a lost market.

The first step in creating a fuel product from wood collected from a construction and demolition site involves the pre-job review conducted by the recycler and the site manager concerning the materials at the site (e.g., the age of the building and the possibility of asbestos or other potential contaminants in the wood debris). This session establishes the “do’s and dont’s” necessary to ensure the processor has a quality material and that more contaminated material will be placed in separate containers.

The wood is then extensively processed to meet both physical characteristic requirements such as chip size (e.g. a facility may require wood chips no larger than 4 inches with 90% of the chips no larger than 3 inches and no more than 10% smaller than ¼ inch), and to ensure contaminants that would cause permit violations are eliminated from the fuel. This processing includes picking stations to take out plastics, metal, and other large objects, conveyors with sorting and screening systems which further eliminate contaminants and take out fines, and chippers or other equipment to create a wood chip that meets the buyer’s specifications.

The buyer will also have specifications concerning chemicals and other substances to guarantee the fuel will not cause a violation of the facility’s air permit. These requirements will list those chemicals and substances (e.g., arsenic, cadmium, chromium, lead, mercury, selenium, silver, titanium, zinc, pesticides, herbicides, PCBs, cresols, plastics and chlorine, in the case of a facility in Connecticut), the ASTM or the EPA method for testing for those materials and the acceptance limits for those materials. As noted above, failure to meet these specifications will lead to a rejected load and the likelihood of a lost market. Clearly, a recycler has absolutely no incentive to fail to meet the buyer’s specifications. Unquestionably, construction and demolition wood recyclers are capable of producing a boiler fuel that offers tremendous environmental advantages.

As noted by Gina McCarthy, commissioner, Connecticut Department of Environmental Protection, testifying on February 23, 2006, in regard to a proposed facility to burn wood recovered from construction and demolition sites and processed into a boiler fuel: “With respect to air emissions from the combustion process of processed C&D (i.e., construction and demolition) waste, provided that appropriate air pollution control equipment is in place, and operating there is little difference in the emissions from process C&D waste, wood chips or other regenerable biomass.”

According to the May 2006 study, “Emissions from Burning Wood Fuels Derived from Construction and Demolition Debris,” (Northeast States for Coordinated Air Use Management—whose members are the lead officials in the air quality offices of eight northeastern states): “A review of the data shows the use of appropriately processed C&D wood is similar in its emission profile to that of virgin wood and other power generation fuels such as coal and oil.” The report noted a critical element for use of construction and demolition wood as a fuel source is the development of strict fuel standards and that “fuel standards minimizing contamination from other C&D materials and removing C&D fine material (fines) from the fuel chips increases fuel quality substantially, resulting in lower metal and other air toxic emissions. Last, requirements for comprehensive testing and sampling of the fuel at both the processing facility and the location of the end user will assure the fuel quality is maintained.”

In addition, the 2007 “Massachusetts Construction and Demolition Debris Industry Study” (DSM Environmental for the Massachusetts Department of Environmental Protection) noted: “The risk of exceeding the treated wood specification makes it difficult to recover a high percentage of the wood potentially available for boiler fuel.” In other words, the processing requirements are rigorous enough to ensure that the wood burned as a fuel is extensively processed and the remainder will find alternative markets, such as use as an alternative daily cover in landfills.

Finally, a study by the University of New Hampshire, “Life-Cycle Assess-ment of C&D Derived Biomass/Wood Waste Management” (2007), concluded construction and demolition recycling facilities: “Provide many environmental benefits to the state of New Hampshire and combustion of C&D wood also has significant additional benefits.” The study noted construction and demolition wood can be considered a biogenic alternative energy source and can contribute to an integrated alternative energy portfolio. The study cited reductions in carbon emissions and in criteria air pollutants when combusting construction and demolition wood with energy recovery instead of fossil fuels. The study also found when construction and demolition wood combustion was compared with virgin wood combustion, construction and demolition wood had lower environmental impacts. It also produced more energy for the same amount of wood when compared to virgin wood combustion.


Our Concerns with the EPA’s Proposal

The EPA has proposed a regulatory system under which defines the following non-hazardous secondary materials as a solid waste unless:

•When used as a fuel that remains within the control of the generator (whether at the site of generation or another site the generator has control over) and meets the legitimacy criteria;

•When used as an ingredient in a manufacturing process (whether by the generator or a third party) that meets the legitimacy criteria;

•When the non-hazardous secondary material has been sufficiently processed to produce a fuel or ingredient product that meets the legitimacy criteria; and

•When, through a case-by-case petition process, it has been determined material handled outside the control of the generator has not been discarded and is indistinguishable in all relevant aspects from a fuel product.

In addition, the agency has developed legitimacy criteria to ensure non-hazardous secondary materials that are burned in a combustion unit are done so legitimately—that is actually used as a fuel or ingredient and not a sham. Specifically, legitimacy criteria for non-hazardous secondary materials used as a fuel, requires them to be managed as valuable commodities, have meaningful heating value, and contain contaminants comparable or lower than traditional fuel products.

The EPA has singled out “contaminated” construction and demolition material and chromate copper arsenate treated wood as solid wastes under this proposal. We believe that both can be processed to be a viable fuel stock, not solid waste, and if so, they should be regulated as fuels and not as solid wastes. As noted above, construction and demolition recycling facilities process materials to meet the requirements of end markets. Recyclers who fail to meet those material specifications will be rejected by those markets.

In the testimony of Commissioner McCarthy and the various environmental studies, wood generated at construction and demolition sites and processed to be a boiler fuel provides significant environmental and energy benefits, including lower greenhouse gas emissions by displacing greenhouse gases produced by fossil fuel combustion. In the case of wood generated at construction and demolition sites and processed as a boiler fuel, the material is extensively processed to meet both boiler and regulatory requirements. This fuel is a valuable commodity with willing buyers, it has a higher heating value than green wood and has contaminants comparable to or lower than traditional fossil fuels.

We are concerned the EPA’s proposal that the material remain under the control of the generator means the construction and demolition wood recycler must go through the arduous process of petitioning the EPA for a “non-waste determination.” Assuming the EPA’s goal is to encourage the use of fuels that will lower greenhouse gas emissions instead of fossil fuels, while also protecting the public health and the environment, the petition process will thwart the achievement of this goal. The additional cost in time and resources of petitioning the EPA will also increase the cost of preparing a viable fuel product and will force construction and demolition wood recyclers to prepare a lower value product such as alternative daily cover for landfills instead of a fuel that is an alternative to fossil fuels. This result is absurd on its face and would only serve to increase greenhouse gas emissions while eliminating the use of a viable alternative fuel.


Alternative Proposals

The EPA also requested comment on two alternative proposals. Both proposals would eliminate boiler fuel as a market for wood generated by construction and demolition recyclers. Adoption of either alternative would lead to the needless generation of more greenhouse gas emissions and in a reduction of public health and environmental protection. Both should be summarily rejected.


Landfill Gas

NSWMA members are involved in the disposal of solid waste. Our member companies operate landfills. Many of those landfills have active landfill gas recovery operations. The EPA has a very active program, the Landfill Methane Outreach Program, promoting the increased development of landfill gas recovery projects and the use of recovered gas as a clean, renewable energy source. We note the EPA has listed “clean biofuels/biogas processed from solid waste” as an example of a material designated not to be solid waste when burned. The EPA has also stated that, as a gas, this energy source would not be subject to this new regulation. We agree fully with the EPA’s analysis and strongly urge the EPA continue to support both the development of this alternative energy source and to classify it as a fuel, not a solid waste.


Bruce J. Parker
President and CEO
NSWMS

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