Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 11

Okay, I'm about done beating this dead horse.

One last time...with feeling.  Why the Sierra Club is wrong to claim that:

Today’s court decisions will help cut that pollution down and make our air safer to breathe. 

I addressed the regulations that were in place previously.  Here is what they claim about the rule once it was passed:

Today’s rule contains conditions to assure that burning of comparable fuels will not become part of the waste management problem. The chief condition is limitation on burning to industrial furnaces (as defined in 260.10), industrial and utility boilers, and hazardous waste incinerators. Another condition prevents specification limits for hazardous constituents being achieved by means of dilution, so that the total volume of hazardous constituents emitted from burning comparable fuels would remain comparable to those from burning fossil fuels. The rule also contains notification and record keeping conditions which assure that the fuels meet the specification and will be burned in the requisite type of unit, and that this can be verified objectively by third persons

I believe that the regulation they came up with protects public health and the environment.  Period.  I do not think that vacating this rule will "make our air safer to breathe."  Let's look at what the EPA had to say about the that actual regulation while it was being proposed and during the comment period.

CFAP.07.a(commenter 136): 1. Failure to Assess Potential Risks to Human Health and the Environment In the development of the proposed comparable fuel exclusion, the Agency has not conducted even the most cursory analysis of the potential impacts on human health and the environment

That's a comment from Molten Metals.  Ignoring the soap-opera stuff and looking only at the merits of the question, here is EPA's response:

EPA disagrees that it is necessary to evaluate the environmental implications of its comparable fuels approach. The Agency has developed a comparable fuel specification based on the level of hazardous and other constituents normally found in fossil fuels. EPA refers to this as the benchmark approach.

For this approach, EPA set a comparable fuel specification such that concentrations of hazardous constituents in the comparable fuel could be no greater than the concentration of hazardous constituents naturally occurring in commercial fossil fuels. Thus, EPA expects that the comparable fuel would pose no greater risk when burned than a fossil fuel and would at the same time be physically comparable to a fossil fuel, leading to the conclusion that these materials are products, not wastes.

The Agency concludes it has discretion in exercising jurisdiction over waste-derived fuels that are essentially the same as fossil fuel, and since there would not likely be environmental benefits from regulating those fuels (i.e., burners would likely just choose to burn fossil fuels), EPA has decided not to exert regulatory control over comparable hazardous waste fuels meeting the benchmark specifications.

Furthermore, the final rule requires comparable/syngas fuel to be burned only in units subject to Federal/State/local air emission requirements. The Agency believes that limiting the burning of comparable/syngas fuels to industrial furnaces or boilers, or hazardous waste incinerators, along with a certification from the burner, would ensure that the fuel was burned in a manner protective of the environment.

There are two things in play here.  EPA reasons that what is true for the goose is also true for the gander.  Secondly, limiting the burning to only BIFs and hazardous waste incinerators (that must comply with the Clean Air Act) provides protection for the public's health and the environment.  I agree.

Molten Metals continues on this line of concern:

CFAP.08(commenter 136): An exemption based on lack of risk should not be abandoned because "this approach has very limited value to the regulated community." The comparable fuels exemption has the potential for becoming de facto exit levels from RCRA, particularly if generators are allowed to blend or treat wastes to meet the exemption levels. 

Consequently, the lack of a risk basis for the levels in the instant rulemaking could undermine the risk-based exemption setting process EPA has undertaken in the HWIR rulemaking. In the HWIR rulemaking, exit levels will be based upon a comprehensive evaluation of risks to human health and the environment arising from exposures to releases along a variety of pathways.

If such risk-based exit levels can be overridden by a higher comparable fuels exit level not based upon potential risks, EPA will be both diminishing the importance of the risk evaluation in HWIR and encouraging the combustion of hazardous wastes through a higher exit level. inconsistency would be greatly exacerbated under comparable fuels specifications which lack concentration limits for many contaminants found in wastes, including contaminants contributing to the formation of PICS. The lack of concentration limits for many constituents would stand in stark contrast to the exit levels for hundreds of constituents contemplated in the HWIR rulemaking.

Finally, lacking a risk basis for the exclusion, EPA's rationale for the comparative fuels exclusion is largely the combustion equivalent of the indigenous principle previously articulated by the Agency in attempting to define RCRA jurisdictional limits for K061.

However, the Court in API v. EPA, rejected this limitation to RCRA jurisdiction. Therefore, the similarity of hazardous waste to fossil fuels is by itself not a sufficient basis for a RCRA exemption, absent a compelling demonstration that RCRA controls are not needed to protect human health and the environment.

Boy oh boy!  Molten Metals pulled no punches.  Remember what their motivation was at this time.  They had invented a better mousetrap and now the EPA was poised to take a whole bunch of mice out of reach of that trap.  The EPA responds:

In regard to HWIR rulemaking, the comparable fuels exclusion would not undermine the risk-based exemption setting process EPA has undertaken in the HWIR rulemaking. The comparable fuels exclusion is conditioned on the waste being combusted, and thus prohibits direct placement on the land. The comparable fuel specifications need not be the same as the HWIR exit levels.

Indeed, the comparison is misplaced. The HWIR proceeding is defining when wastes no longer are hazardous. This proceeding is defining when a fuel-like secondary material is not a waste. (Even viewed from the standpoint of risk -- a misplaced comparison for the reason given -- it should be noted that there could be a legitimate difference between exit numbers for materials which must be combusted and those which could be managed in many other manners, including direct land disposal.)

With regard to API v. EPA, EPA disagrees with the commenter’s point. In the rule referred to by the commenter, the Agency made no attempt to develop hundreds of hazardous constituent levels to show that secondary materials and normal commercial products are comparable. EPA also notes that the principle that a hazardous waste can cease being a waste after treatment is well established in the rules. See §261.3(c)(2)(i) (final sentence).

Therefore, the similarity of hazardous waste to fossil fuels by itself is not a sufficient basis for a RCRA exclusion, absent a compelling demonstration that RCRA controls are needed to protect human health and the environment. Given that a comparable fuel would have legitimate energy value and the same hazardous constituents in comparable concentrations to those in fossil fuel (and satisfies other parameters related to comparability as well), EPA has discretion to classify such material as a fuel product, not as a waste.

Molten Metals Continues:

CFAP.07.b(commenter 136): The Agency notes that it "considered" using a risk-based approach to determine the specifications for the comparable fuels exemption (61 FR 17460), but added that it has "insufficient data relating to the types of waste burned and the risks they pose." As a result, EPA is proposing the "benchmark approach" and plans to develop a comparable fuel specification based on the level of hazardous and other constituents normally found in fossil fuels. EPA "would expect that the comparable fuel would pose no greater risk when burned than a fossil fuel and would at the same time be physically comparable to a fossil fuel" but provides no factual support for the expectation.

Remember the Court mentioned the "benchmark approach."  Here is how EPA responded:

EPA has provided factual support for the expectation that the comparable fuel would pose no greater risk when burned than a fossil fuel and would at the same time be physically comparable to a fossil fuel.

The Agency has explained in detail exactly how the specifications were developed, and how a comparable fuel indeed will have lower concentrations of hazardous constituents than many fossil fuels. Based on the fact that a comparable fuel would have lower concentrations hazardous constituents than many fossil fuels, there is no reason to think that they would burn in a different manner than fossil fuels being replaced.

I can see the EPA getting a bit exasperated about this.

The Louisiana Department of Environmental Quality appeared to get what the EPA was doing, especially for Syngas:

We would consider it a great luxury to be able to apply regulations which actually anticipate the process. Otherwise, we face the same old dilemma: Do we act as faithful executors of yet another unintended consequence, or do we yield to Reason and reach for a stilted, but expedient interpretation?

The EPA responds:

The final rule also requires comparable/syngas fuel to be burned only in units subject to Federal/State/local air emission requirements. The Agency believes that limiting the burning of comparable/syngas fuels to industrial furnaces or boilers, or hazardous waste incinerators, along with a certification from the burner, would ensure that the fuel was burned in a unit subject to Federal/State/local air emission regulations.

Industrial furnaces or boilers, or hazardous waste incinerators are believed to be a universe of units that are capable of handling comparable/syngas fuels and that would be subject to Federal/State/local air emission requirements.

Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 12  - Fin!

Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 10

Golly jeepers!  This is my tenth post on this topic.  I swear I only though it would take me three.  Seems that to support my claim that the Sierra Club and friends are wrong in thinking that the Court's vacating of the Comparable Fuels Exclusion is not going to bring about any of the changes they claim:

The burden is on me to support why they are wrong, and, well its taken me this many posts to get there.  Unfortunately, this is not going to be the last one.  I have no idea where these blog posts will take me once I start.  As I write them, something always comes to the surface that requires research, and that endeavor brings about a new rabbit hole to chase down.

Bear with me, this may seem like an aside, but it plays into the determination of risk.  That determination was made by the EPA but not accepted by the Court.  Nor did the Court address risk.  The Court decided this case on a procedure but if you read between the lines, they, like the Sierra Club and friends, doubt that safety of public health and the environment was adequately addressed when 40 CFR 261.32 was finalized.

The Court eludes to the issue of risk not being addressed (though that is not why they used it) by citing a comment to the proposed 261,38 regulation by Molten Metal Technology Inc. who asserted:

Therefore, the Agency’s comparable fuels proposal will likely result in higher exemption concentrations than levels that would normally be derived using a risk-based approach. Such an approach would violate the clear Congressional mandate in Section 3004(q) of RCRA to regulate the burning of hazardous waste for energy recovery “as may be necessary to protect human health and the environment.” 

Ignoring the Court and what they were thinking, I want to address to Molten Metal Technology they think 261.38 will result in a higher concentration of hazardous constituents?  I want to also ask, if it does, is the public impacted at a greater risk then burning fossil fuels because of that?

I went looking for this question posed by Molten Metals and was lucky enough to find it on the EPA's website. It's in a document called "Response to Comments Document Hazardous Waste Combustors Revised Standards Final Rule Part I."  This quote is attributed to "CFAP.07.c(commenter 136)" which I am going to assume (as I cannot find a key to the numbers) is molten Metals.

Now I am a little embarrassed by not knowing who Micro Metals was.  You see, with a Google search I was able to find a Boston University School of Management Case Study on the company:

Just six years since its founding in 1989, Molten Metal Technology Inc. (MMT) was on the verge of huge successes. The company had successfully developed an exciting new technology called Catalytic Extraction Processing (CEP) which would not only break down hazardous and radioactive wastes into benign form but also recycle them back into marketable products. 

Now you might be thinking, so what?  But that's really kind of relevant here.  The Court, out of all the comments, chose the one stating that there will "likely result in higher exemption concentrations than levels that would normally be derived using a risk-based approach" generated by Micro Metals.  The Court then uses that question referencing the EPA's decision to use a "benchmark approach" while "rejecting a 'risk' approach."

The Court writes:

Nonetheless, EPA’s response to Molten Metal’s comment suggests that EPA understood Molten Metal to challenge EPA’s statutory authority to exclude comparable fuels in the first place and affirms its authority to do so.

As EPA’s response to Molten Metal’s comment demonstrates, that EPA had statutory authority under section 6924(q) to exempt some hazardous-waste-derived fuels from regulation was a “key assumption” underlying EPA’s exercise of its “discretion to classify such material as a fuel product, not as a waste,” and thereby “exclude” it from section 6924(q)’s ambit. 

Here is the question from Molten Metals in full:

Here is how the EPA responded:

Section 3004(q) applies to hazardous wastes which are burned for energy recovery. The provision does not speak to EPA’s authority to determine whether particular fuels produced from secondary materials are, or are not, products rather than wastes. It is rational for the Agency to determine, after rigorous examination, that secondary materials which have the same heating values and composition as normal commercial fuels, and the same types and levels of hazardous constituents, are no longer solid wastes.

Now if you think for one minute that the comments posed by Molten Metals was really over concern about the risk to public health and the environment, well you need to get yourself out of Colorado and breath some fresh air.  I can't really tell what's in the hearts of the guys who wrote the 30 different comments on every part of this rule and submitted them to the EPA.  I can point out this:

MMT was developing excitement around its experimental process for several years. While the process worked in laboratory tests, commercial implementation still lay ahead. The company had carefully orchestrated its commercial demonstration programs to learn from and share with a broad cross-section of industry and government. By the end of 1995, the groundwork was set and Molten Metal was proceeding with its plan to make the transition into full commercialization for addressing the range of issues confronting hazardous and radioactive waste cleanup efforts.

Check that date out.  When did the Comparable Fuels Exclusion, 261.38 get finalized?  1996.  Here is what else we learn:

Molten Metal entered the market during this time of increasing regulatory oversight, intense industry competition and heightened interest in environmental solutions. Armed with a technology it argued to be the most innovative of its class and able to go beyond the traditional paradigm of stabilization or simple destruction, MMT set off to capture waste management opportunities.

The company asserted that the worldwide generation of over 600 million tons of hazardous industrial waste would demand “pollution prevention and recycling solutions like CEP (Catalytic Extraction Processing).”  MMT promoted its CEP technology on its regulatory and environmental merits, claiming that it avoided the environmental pitfalls of incineration and landfilling waste, while also sheltering MMTand the end-users from regulatory oversight due to the recycling nature of the process.

You see the problem here?  MMT, which was :proceeding with its plan to make the transition into full commercialization," was about to lose a big ol' chunk of the easy pickings with this new Comparable Fuels Exclusion.  MMT was not going to burn this waste in place of fuel, it would treat the waste as a form of “pollution prevention and recycling solutions."

This created two problems for MMT.  One would be the loss of the Listed wastes streams that were going to incinerators, their "first and foremost" competitor, and the second would be their process, CEP, was not using the Listed waste as a fuel, so they could not take that waste in unless it was classified as a Listed Waste.  What generator would do that?

So what strategy works best when EPA wants to change a rule that will take away an ongoing revenue source?  Muddy the waters with concerns of woe.

Here is where it gets all soap-opera like.  Remember Syngas?

Well guess why that regulation is there?

[From EPA] It appears to the Agency, for example, that the Molten Metals operation, which planned to solicit and accept most types of identified and listed hazardous wastes, is easily cognizable as a hazardous waste treatment operation, notwithstanding the syngas generated as an output of the process.

[From CMA - a friend of MMT] In the final rule, EPA should merely clarify that uncontained syngas, or any other gas not confined to a container, is not subject to RCRA regulation. CMA supports EPA's confirming that syngas manufacturing projects are not subject to RCRA - some of CMA's members are participants in Molten Metals Technology's and other syngas projects. However, for EPA to finalize the exclusion as proposed would be to codify implicitly an unprecedented expansion of its RCRA jurisdiction. 

 [From CMA - a friend of MMT] The Agency notes that "Molten Metal Technology commented that the CEP is not in fact a combustion technology, and the Agency has attempted to reflect this in the definition" of combustion.

[R-P a competitor] R-P opposes the proposed exclusion for synthesis gas fuel (17465) which EPA has expressly included for the catalytic extraction process (CEP) unit developed by Molten Metals Technology (MMT). The CEP "thermal reaction" process proposed by MMT is essentially hazardous waste incineration in a starved air environment (i.e., a pyrolysis reaction).

ENSCO a competitor] ENSCO also opposes the proposed exclusion for synthesis gas fuel (17465). This proposal would allow any combustion unit, disguised as a "desorber" or other alternate technology label device, to partially burn hazardous waste, producing harmful off gases loaded with toxic PICS, dioxin, furan, and metals. EPA states that it is aware of one such process proposed to be operated by Molten Metals Technology (MMT). 

Judge Judy wrote her biography and titled it: Don't Pee on My Leg and Tell Me It's Raining.  If you read these comments you can see where Judge Judy is coming from after listening to all manner of reasoning and justification in her court.  Same here with the EPA:

ENSCO also applauds EPA for setting specifications for the full range of hazardous metal and organic constituents under Appendix VIII, and urges EPA to retain this in the final rule. 

Well of course you do ENSCO!

Okay, you get the picture.  What about risk?  How does the EPA address risk?  All this posturing and nonsense (noise) detracts from the real question.  Was the public protected by this regulation?

Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 11

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Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 9

The Courts decision to vacate the Comparable Fuels Exclusion is nothing more than legal language adherence.  It has nothing to do with confirming or disproving that what was in place, the current regulation in 261.38, was sufficient “to protect human health and the environment.”

The Court, in my reading of their decision, does not see it solely as a legal language decision, apparently siding with Environmental Technology Council's critique to the EPA of the 1998 regulation, being purposed as:

"an attempt to defer RCRA § 3004(q)-(s) regulation of . . . hazardous wastes to the CAA in accordance with RCRA § 1006(a) to avoid duplication, but without making the essential finding that such a deferral satisfies the objectives of RCRA.

This "essential finding" is what is missing in their opinion but is actually there if you look at it pragmatically.  The EPA contends that:

To be comparable, the fuel must “meet specification levels comparable to fossil fuels for concentrations of hazardous constituents and for physical properties that affect burning,” such as heating value and viscosity.

 The EPA supports this by:

...setting its comparable fuel specifications, EPA used a “benchmark” approach “based on the level of hazardous and other constituents normally found in fossil fuels” so that “concentrations of hazardous constituents in the comparable fuel could be no greater than the concentration of hazardous constituents normally occurring in commercial fossil fuels.”

Under the benchmark specifications, EPA stated, it “reasonably expect[ed]—based on the methodology used to establish the specification—that the comparable fuel will pose no greater risk when burned than a fossil fuel and concomitant energy recovery benefits will be realized from reusing the waste to displace fossil fuels.” 

This, in my opinion meets the RCRA requirement that the EPA in:

Section 6924 provides generally that EPA “shall promulgate regulations establishing such performance standards, applicable to owners and operators of facilities for the treatment, storage, or disposal of hazardous waste identified or listed under this subchapter, as may be necessary to protect human health and the environment.”

Unless I am missing something in my understanding of the Comparable Fuels Exclusion addressed in 40 CFR 261.38, EPA has met this requirement.

Again, the Court apparently is unable to look at what is in place instead focusing on the fact that the EPA "therefore has no discretion to “reasonably” construe the term to exclude hazardous-waste-derived fuels from regulation."

This, as I see it, is where the crux of the problem lay.  EPA excluded Comparable Fuels from meeting the definition of a hazardous waste.  They did not exempt it from regulations designed to "protect human health and the environment."

The Environmental Technology Council argued at the time 261.38 was being purposed that:

EPA has not conducted any kind of technical or risk analysis showing how a blanket exemption from all RCRA Subtitle C controls for hazardous wastes that meet the comparable fuel spec somehow adequately protects human health and the environment. Thus, the proposal is legally deficient.

Excluding listed waste that meet the definition for Comparable Fuels from the definition of a hazardous waste seems to be the problem here,.  The Environmental Technology Council states that this is a blanket exemption from all RCRA Subtitle C controls.  That statement is true, but it is not the whole truth.  261.38 places Subtitle C controls on the blending, treating, burning, and transporting of listed wastes classified as Comparable Fuels.

The question I ask is: "Would a formal "technical or risk analysis" have concluded anything different?"  The EPA should have given the baby the bottle here instead of stating:

"that EPA had statutory authority under section 6924(q) to exempt some hazardous-waste-derived fuels from regulation was a “key assumption” underlying EPA’s exercise of its “discretion to classify such material as a fuel product, not as a waste,”

Basically, what they did was state that we don,t have to do this because it ain't a waste.  All this did was make groups like the Sierra Club suspicious of whether the public health and the environment are protected.

The reason it takes me so many gosh darn posts with thousands of words is because I want to explain what is actually going on and how all sides of the issue might look at it.  I could just put a couple of paragraphs together regurgitating what others say on this topic concluding that the Sierra Club is a bunch of cotton headed ninny muggins but I'm trying to make a case for a more pragmatic approach to waste management.  I need the Sierra Club and friends to understand what is actually going on so they can devote their time and energy to issues that actually do impact public health and the environment, not just perceived issues.

More words, and another "next post" because I feel the need to address what the Court says in their finding for the Sierra Club.  I have stated that the Comparable Fuel Exclusion as addressed in 261.38 is protective of human health and the environment.  The burden is on me to support that.

I now have to address this:  The Court also cited a comment to the proposed 261,38 regulation by Molten Metal Technology Inc. who asserted:

Therefore, the Agency’s comparable fuels proposal will likely result in higher exemption concentrations than levels that would normally be derived using a risk-based approach. Such an approach would violate the clear Congressional mandate in Section 3004(q) of RCRA to regulate the burning of hazardous waste for energy recovery “as may be necessary to protect human health and the environment.” 

My question to Molten Metal Technology is: Does 261.38 actually result in a higher concentration of hazardous constituents and, if it does, is the public impacted at a greater risk because of that allowance?

It is easy to make a claim, it is much more onerous to support it.  This is why I am still on this topic nine posts in.


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 10

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Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 8

This is where we start to divide.  Some of us, and I include myself with the EPA here, take a much more view of the physical world in which hazardous chemicals are used.  We do not draw a difference between the benzene in a waste and the benzene in a product.  Benzene is benzene.  Same with other parameters, such as flash point.  Under normal working conditions, if the flash point is below the ambient temperature it is flammable.  The only parameter that changes the risk is the boiling point,  It does not matter if the flash point is -45 F or 45 F.  Getting rid of one does not change the risk unless the ambient temperature drops below 45 F.

The EPA, I assume, also looked at the whole process of burning these waste streams.  Number one, to be a comparable fuel it had to meet "constituent specifications" for compounds listed in 40 CFR 261.38 Table 1:

Number two, the made the facility "subject to the applicable requirements of parts 264, 265, or 267 or § 262.34" and does not violate the dilution prohibition."

Number three, the EPA requires compliance with "existing Clean Air Act, Occupational Safety and Health Administration and Department of Transportation regulations"  According to the Court:

EPA’s determination of “the level of regulation ‘necessary’ for the management, i.e., the storage, transportation, and burning, of comparable fuels that is protective of human health and the environment, as required by section 6924(q).” 

The Court, as far as I can tell, does not contest this claim.  The Courts problem with the Comparable Fuels Exclusion seems to be one of semantics.  Congress told the EPA,,,:

In particular, it provides that EPA “shall promulgate regulations establishing . . . as may be necessary to protect human health and the environment”: “(A) standards applicable to the owners and operators of facilities which produce a fuel . . . from any hazardous waste identified or listed , . . . (B) standards applicable to the owners and operators of facilities which burn, for purposes of energy recovery, any [such] fuel . . . or any fuel which otherwise contains any hazardous waste . . . and (C) standards applicable to any person who distributes or markets any [such] fuel . . . or any fuel which otherwise contains any hazardous waste.” 

The EPA claims they have a regulation in place designed to provide “the level of regulation ‘necessary’ for the management, i.e., the storage, transportation, and burning, of comparable fuels that is protective of human health and the environment."  When I look a 40 CFR 261.38 I see a regulation and that regulation appears to require stuff that is known to be protective.  Well maybe not so much a problem with semantics as it is a problem with but that's not what you said!

This theory [the Court says] was not part of EPA’s rationale as expressed in the 1998 Rule. There, EPA concluded it need not establish any standards applicable to qualifying comparable fuels because a comparable fuel is not a “waste” but rather a “fuel product” and therefore excluded from the statute’s reach.

Yes, they have a regulation [261.38] and that regulation requires actions and prohibitions designed to  protect human health and the environment, and these regulations address standards for the producer of the fuel, the burner of the fuel, and the marketer of the fuel.  The only problem is that the EPA did not call this a regulation because they claimed that comparable fuels are not solid wastes and therefore not listed waste and therefore not subject to what Congress required in 6924(q).

“The rationale for the Agency’s approach is that if a hazardous waste derived fuel is comparable to a fossil fuel in terms of hazardous and other key constituents and has a heating value indicative of a fuel, EPA has discretion to classify such material as a fuel product, not as a waste.”

This is just silly.

• Do we have a regulation for “[h]azardous waste used as fuel”  Yes, 261,38, this meets one part of 6924(q).

• Do we have "(A) standards applicable to the owners and operators of facilities which produce a fuel . . . from any hazardous waste identified or listed , . . . "  Yes, 261.38(b)(1)(ii).

• Do we have "(B) standards applicable to the owners and operators of facilities which burn, for purposes of energy recovery, any [such] fuel . . . or any fuel which otherwise contains any hazardous waste . . ."  Yes 261(b)(3).

• Do we have "(C) standards applicable to any person who distributes or markets any [such] fuel . . . or any fuel which otherwise contains any hazardous waste.” Yes, 261.38.  Okay, here is nothing specific written for these two activities.  They don't seem to play into the process here.  The Generator must...and the Burner must.... and a facility that blends or treats must...  I read this as the marketer and distributor must rely on the other entities to do their thing.  This is different than Used Oil (279 subpart H) where the generator can pretty much stay in a dark room letting the marketer and distributor do the leg work. 

That does not seem to matter to the Court.  Even though the EPA came up with standards, because they excluded comparable fuels from being a hazardous waste, well that was just not right the Court determined:

In particular, contrary to its stated rationale, EPA had no discretion to “reasonably determine that a material which is a legitimate fuel and which contains hazardous constituents at levels comparable to fossil fuels is not being ‘discarded’ within the meaning of [42 U.S.C. § 6903(27)].”

This is the very reasoning that the Congress rejected when it enacted section 6924(q) to close EPA’s “regulatory loophole” for energy recovery. As we explained...Congress added section 6924(q) in response to EPA’s regulations that excluded from the definition of “solid waste” (and thereby of “hazardous waste”) hazardous materials that are—or will be—burned for energy recovery as not “discarded”; and the Congress “addressed this problem by deeming the offending materials to be ‘discarded’ and therefore within the statutory definition of ‘solid waste.’ ”

The Court, can only come to one conclusion which requires the Comparable Fuels Exclusion to be vacated:

Thus, for the purpose of interpreting section 6924(q), “discarded” is not, as EPA claims in the 1998 Rule, “an ambiguous term.”  And EPA therefore has no discretion to “reasonably” construe the term to exclude hazardous-waste-derived fuels from regulation.

Is the Sierra Club and friends correct that 261.38 too was just another loophole?

Today’s court decisions will help cut that pollution down and make our air safer to breathe. Instead of creating illegal loopholes like these

I do not see what the folks at the Sierra Club see.  I see these listed wastes as nothing different than other solvents and materials we burn every day.  If you don't like burning fossil fuels, well that's a completely different topic.  The issue here is what, if anything, is wrong with the burning of listed wastes under the Comparable fuels regulation in 261.28?  Is the public protected, as the EPA claims, because their reasoning is sound?

Under the benchmark specifications, EPA stated, it “reasonably expect[ed]—based on the methodology used to establish the specification—that the comparable fuel will pose no greater risk when burned than a fossil fuel and concomitant energy recovery benefits will be realized from reusing the waste to displace fossil fuels.” 

I can find nothing in the Court's document, the Sierra Club's website, or the internets to make make me think otherwise.  Still, I;m not able to leave it at that, not just yet.  If it is a sound reasoning, it needs to have a lot of support as to why.


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 9

Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 7

At this point in the conversation, after six tries to explain what the Court said and what the comparable fuels rule provides, we are still needing to address if public health and the environment was protected.

In terms of "safeguards" and "protective practices" I can state that they are there.  The much harder to definitively answer is the risk from exposure due to the burning.  In order to move forward we have to come to an agreement on a few things.

First, we need to agree that compliance with the "applicable requirements of parts 264, 265, or 267 or § 262.34" meets the RCRA protection standard  and are sufficient “to protect human health and the
environment” that Congress wanted. If we can agree that those regulations are no more and no less protective then any other regulations for a hazardous chemical/material, then we can move forward.

Second, we need to agree that the Clean Air Act and regulations, as it stands now, is protective of public health and the environment and this is done through a permit requirement.

If you say that one or both is weak, then nothing done to comparable fuels, short of  'don't generate them' is going to satisfy you.  These waste streams, whether burned onsite in a BIF or sent offsite to a permitted TSD facility, follow the exact same rules for "safeguards" and "protective practices" and to "cut that pollution down and make our air safer to breathe."

Now you can argue that these rules could be better or more restrictive, but that's not relevant to this case.  It is Sierra Club's contention that the Comparable Fuels Exclusion was a loophole and when used put the community at risk:

This unanimous court decision rightly restores those safeguards to the American people, promising safer communities across the country where hazardous waste is being burned today without following protective practices."

My question is 'what safeguards were not in place?'  Am I missing something?  What does the Sierra Club and friends see that I do not?

The Court finding has nothing to do with a finding of actual, or an increase in, harm or risk.  This is what grinds my gears about these cases.  They do not address the issue of harm.  Yet look at what is claimed:

Those statements claim that there was harm or risk and now it is gone.  Was there?  That's the more important question to look at.  We need to manage waste in a more cost-effective and environmentally sound way and that includes more than following a 1980 regulation, congressional intent, or ignoring other risks that come into play when you ship waste off site.

Quite simply put, what is the best way to manage this type of waste stream?  If BIFs are less safe then incinerators, then what will make them safer?  If they are exactly the same as a RCRA permitted incinerator, then what is the issue of concern.  Why is the best outcome not addressed when making new rules to manage waste?  Why does the Sierra Club and friends oppose every change to the 35 year old hazardous waste regulations claiming that it is less protective then what is currently in place?

They won this case, but they won it on a technicality and not on the merits of finding actual risk or harm.  The Court, in my opinion, looked at it with the very same glasses that the Sierra Club used.

Finally, the 1998 Rule did not even purport to apply the RCRA protection standard EPA now cites—that the regulatory standards be sufficient “to protect human health and the environment.”

Instead, EPA considered only whether a fuel complying with the Comparable Fuels Exclusion’s specifications presents a “greater risk than burning fossil fuel”—which is quite a different level of protection—and EPA’s answer was merely that it “expects” not.

What the Court wants, and the Sierra Club wants appears to be a quantitative determination of that specific risk and not a comparison to the risk associated with a similar process or endeavor.  Now I look at risk a bit different than most.  I look at it from the standpoint of an end point or outcome.  In other words, the fire risk of pouring 55 gallons of Acetone with a flash point of -4 F is the same as pouring 55 gallons of gasoline with a flash point of -45 F and the same risk as pouring 55 gallons of toluene with a flash point of 43 F.

Under normal working conditions all three present the same fire risk even though the gasoline has the lowest flash point.  I don't need to look at the risk individually as the risk is the same.  And if you asked me if the gasoline presents a "greater risk" of catching on fire then the toluene, the answer I would give you that I "expect" not.

The EPA looked at the risk not in terms of what the risk is, but is it expected to be a "greater risk than burning fossil fuel.”  The appropriate - and in my opinion correct answer - is we [EPA] "expect" not.  This is consistent with other things we assume to be the same. In the case of comparable fuels, the EPA appears to have looked at it from an end point/outcome perspective.  If it is burned in place of fossil fuel products, will there be a "greater risk."


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 8

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Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 6

Here are what a number of the concerned parties siding with the Sierra Club have to say:

"Today’s court decisions will help cut that pollution down and make our air safer to breathe."

"...promising safer communities across the country where hazardous waste is being burned today without following protective practices."

 “Today’s decision will safeguard the health of communities throughout the Gulf region."

"I feel great relief knowing that the law really is there to protect us from dangerous, even deadly, accidents and explosions.”

I looked at the section in 262.38 "Exclusion of comparable fuel and syngas fuel" for blending to see if the public was at risk because there were no safeguards put in place, but the rule requires the generator of the comparable fuel to comply with the requirements for permitted TSD facilities or meet large/small generator requirements (which require many of the same things found in the regulations for TSDFs.

The folks quoted above state that there are no "safeguards", "protective practices", and the public will now have air that is "safer to breath."  They are incorrect as there are safeguards for the process of blending.  261.38(a)(3) requires the comparable fuel to "be blended at a facility that is subject to the applicable requirements of parts 264, 265, or 267 or § 262.34" and does not violate the dilution prohibition.  Thems looks like protective practices to me.

This is the same requirement for "treatment" which states that "a hazardous waste may be treated to meet the specifications for comparable fuel ...provided the treatment:

Destroys or removes the constituents listed in the specification or raises the heating value by removing or destroying hazardous constituents or materials; and...

Is performed "at a facility that is subject to the applicable requirements of parts 264, 265, or 267 or § 262.34" and does not violate the dilution prohibition."

Safeguards and protective practices are required.  Next...

What about the generation of a syngas fuel that will be burned as comparable fuels?  A syngas fuel can be generated from the processing of hazardous wastes and it can be made to meet the comparable fuel exclusion.  Provided...:

The process "destroys or removes the constituents listed in the specification or raises the heating value by removing or destroying constituents or materials." and...

Is performed "at a facility that is subject to the applicable requirements of parts 264, 265, or 267 or § 262.34" and does not violate the dilution prohibition."

Safeguards and protective practices required.

The rule then states:

The person who generates the excluded fuel must claim the exclusion by complying with the conditions of this section and keeping records necessary to document compliance with those conditions.

So we have seen the blending, treatment, and syngas conditions, what's missing?

• Wastes that are listed as hazardous waste because of the presence of dioxins or furansare not eligible for these exclusions.
• Liquid and accumulated solid residues that remain in a container or tank system for more than 90 days after the container or tank system ceases to be operated for storage or transport of excluded fuel product are subject to regulation
• Liquid and accumulated solid residues that are removed from a container or tank system after the container or tank system ceases to be operated for storage or transport of excluded fuel product are solid wastes subject to regulation as hazardous waste if the waste exhibits a characteristic of hazardous waste
• Liquid and accumulated solid residues that are removed from a container or tank system and which do not meet the specifications for exclusion are solid wastes subject to regulation as hazardous waste 
• Excluded fuel that is spilled or leaked and that therefore no longer meets the conditions of the exclusion is discarded and must be managed as a hazardous waste
• Speculative accumulation.  Excluded fuel must not be accumulated speculatively
• Nothing in this section preempts, overrides, or otherwise negates the provisions in CERCLA or the Department of Transportation requirements for hazardous materials
• An excluded fuel loses its exclusion if any person managing the fuel fails to comply with the conditions of the exclusion under this section, and the material must be managed as hazardous waste from the point of generation.

Looks to me that they have "safeguards" and "protective practices" well covered.  The only thing I did not see specifically spelled out were accumulation specific requirements, such as comply with large/small generator accumulation requirements.  Though this is not specifically mentioned, speculative accumulation covers keeping the waste on site for years and years and spills are covered.

Without a specific requirement to comply with 262.34 and LQG/SQG accumulation requirements I guess an argument that "safeguards" and "protective practices" are not in place could be made.  I consider that assertion pretty weak considering all the other "safeguards" and "protective practices" that are in place.  Besides, those companies that are going to use the comparable fuels exclusion are not your little mom and pop operations that ignore prudent waste management practices.

Now we get into the scary part.  This leaves the actual burning as the chief mechanism for potential public health and environmental harm. The burning of the comparable fuel.  Here is what the regulation says:

Wastes that meet the specifications... for comparable fuel or syngas fuel are excluded from the definition of solid waste provided that the conditions under this section are met. 

For purposes of this section, such materials are called excluded fuel; the person claiming and qualifying for the exclusion is called the excluded fuel generator and the person burning the excluded fuel is called the excluded fuel burner.

This is where the claims of "help cut that pollution down and make our air safer to breathe," "promising safer communities," and "safeguard the health of communities" could be an issue.

Let's look at the regulation specifically dealing with the burning of comparable fuels:

The exclusion applies only if the fuel is burned in the following units that also shall be subject to Federal/State/local air emission requirements, including all applicable requirements implementing section 112 of the Clean Air Act:

What does Section 112 of the Clean Air Act do?

Under the Clean Air Act Amendments of 1990, EPA is required to regulate large or "major"industrial facilities that emit one or more of 188 listed hazardous air pollutants (air toxics).

Air toxics are those pollutants that are known or suspected of causing cancer or other serious health effects, such as developmental effects or birth defects.

EPA is required to develop standards for listed industrial categories of "major" sources (those that have the potential to emit 10 tons/year or more of a listed pollutant or 25 tons/year or more of a combination of pollutants) that will require the application of stringent controls, known as maximum achievable control technology (MACT).

So all burning units are required to meet "Federal/State/local air emission requirements" and if the unit is a Major Source meet the most stringent MACT requirements.

I just don't see how the claim of cutting "pollution down and make our air safer to breathe" and "promising safer communities across the country" and the "decision will safeguard the health of communities" and "dangerous, even deadly, accidents and explosions" will cease was drawn up.

There WERE regulations in place.  These regulations WERE not letting comparable fuels harm the public.  In spite of Marylee Orr, president of the LEAN's contention that "exposure to hazardous waste can cause cancer and other horrible diseases that far too many people here already suffer from. Getting rid of these loopholes is a big step in the right direction" this "loophole" did none of that.

The question now is: How can I say the public and environment is protected with conviction?


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 7

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Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 5

This leaves me with question number 1: Was the previous Comparable Fuel Exclusion sufficient enough to protect human health and the environment?

Here are what a number of the concerned parties siding with the Sierra Club have to say:

"Today’s court decisions will help cut that pollution down and make our air safer to breathe."

"...promising safer communities across the country where hazardous waste is being burned today without following protective practices."

“Today’s decision will safeguard the health of communities throughout the Gulf region."

"I feel great relief knowing that the law really is there to protect us from dangerous, even deadly, accidents and explosions.”

Except for the last quote, those came from some top ranking folks within their respective organizations.  Surely  William Fontenot, Conservation Chair of Sierra Club’s Delta Chapter in Louisiana, John Walke, Director of NRDC’s Clean Air Program, and Marylee Orr, president of the LEAN must understand the risk posed by the exclusion to make such claims.

Still though, I'm not so sure there was a risk above and beyond the normal risk of burning fuel.  This rule does not prohibit this material from being produced, accumulated, or burned.  It only prohibits the material from being being burned in a BIF that is not approved to burn hazardous waste.

So... Was the previous Comparable Fuel Exclusion sufficient enough to protect human health and the environment?  I don't know.  I think it was, or at least I think I understood the BIF rule.  But if these high-ranking folks quoted above say that we will now be safer, maybe they know something I do not.

Let's look at the Exclusion from a health and safety standpoint.  According to the Court:

EPA proposed the Comparable Fuels Exclusion in 1996.  Following notice and comment, the final version was published in the 1998 Rule. The Comparable Fuels Exclusion exempts from the section 6924(q) hazardous waste fuel standard requirement all “comparable fuels,” which are “fuels which are produced from a hazardous waste, but which are comparable to some currently used fossil fuels.”

Here is how the EPA describes Comparable Fuels:

To be comparable, the fuel must “meet specification levels comparable to fossil fuels for concentrations of hazardous constituents and for physical properties that affect burning,” such as heating value and viscosity. 

In a blind taste test you can't tell the difference!

Now with regards to public safety and risk:

EPA asserts that the Comparable Fuel Exclusion’s specifications and restrictions—in conjunction with existing Clean Air Act, Occupational Safety and Health Administration and Department of Transportation regulations—constitute EPA’s determination of “the level of regulation ‘necessary’ for the management, i.e., the storage, transportation, and burning, of comparable fuels that is protective of human health and the environment, as required by section 6924(q).”

One big issue, the Court points out:

... the 1998 Rule did not even purport to apply the RCRA protection standard EPA now cites—that the regulatory standards be sufficient “to protect human health and the environment.”

The Court continues:

Instead, EPA considered only whether a fuel complying with the Comparable Fuels Exclusion’s specifications presents a “greater risk than burning fossil fuel”—which is quite a different level of protection—and EPA’s answer was merely that it “expects” not.

If the Court is unsure about the protectiveness of  of the Exclusion then it is fair to assume that others, such as the Sierra Club, might not be convinced of the safety as well.  If you did not specifically address how the rule would protect human health and the environment how do we know it does?

This is where guys like me, and some like-minded folks in the EPA and TCEQ separate ourselves from the herd.  Our problem is a "trust us" one, and thanks to lobbyists and polluters who skirt the law, our message gets buried by the concern and fear over the words "hazardous waste."

Still...I don't know if the exclusion did "protect human health and the environment."  The Court, like the Sierra Club does not seem to buy in, or understand, the concept of equal risk.  This puts guys like me in a pickle.  I need to compare risks when the public wants the risk singled out.  Risk from benzene from smoking should never be compared to the risk of benzene exposure from a stack one half a mile from a refinery.

With the exclusion, EPA was looking at the risk of burning fuel you purchase with the risk of burning fuel you produce on site.  Like I pointed out in my previous post.  Gasoline is a complex mixture of solvents, primarily benzene, toluene, ethylbenzene, and xylene.  Affectionately called "BTEX."

Burning the same concentration of BTEX in a waste that is found in gasoline presents no difference in the risk.  Hence EPA's argument that it does not present a “greater risk than burning fossil fuel.”

Back to my question: Was the previous Comparable Fuel Exclusion sufficient enough to protect human health and the environment?  I guess its time to look at the regulation that came about under this exclusion.

40 CFR 261.4(a)(16): Comparable fuels or comparable syngas fuels that meet the requirements of § 261.38.

40 CFR 261.38: Exclusion of comparable fuel and syngas fuel

261.38 is where the guts are, so that's where I will focus first.  What I am looking for is conformation that the public's health and the environment is protected.  I'll look at this in the order that it appears in the regulation.  The first thin it talks about is a prohibition on blending and diluting (a)(3):

"Hazardous waste shall not be blended to meet the comparable fuel specification" Except...

"A hazardous waste blended to meet the viscosity specification, if it does not "not violate the dilution prohibition" and "blended at a facility that is subject to the applicable requirements of parts 264, 265, or 267 or § 262.34"

Parts 264 and 265 are for TSDFs.  The standards in this part apply to owners and operators of all facilities which treat, store, or dispose of hazardous waste.  Part 267 is for Superfund/CERCLA facilities and Part
262.34 Accumulation Time is for large and small generators.

Right off the bat, hazardous waste cannot be blended by dilution and can only be blended to meet viscosity specifications if it is done at a facility that complies with current hazardous waste regulations.

So the blending process, if it is required, is not being performed "without following protective practices."  I suspect that's what we will see when I look at the next sections of 261.38.


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 6

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Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 4

In my last post I asked:

How did the EPA get itself painted into this corner?

To answer that question we will need to take a trip in the Way-Bac Machine to 1985

Here is what the Court wrote:

Until 1985, EPA regulations expressly exempted from [RCRA] section 6924’s hazardous waste standards “material . . . being burned as a fuel for the purpose of recovering usable energy,” under the theory that such material was not “discarded,” or, consequently, “hazardous waste,” which is defined in [RCRA] section 6903(5) “as a subset of ‘solid waste.” 

This did not sit well with folks who saw that:

 “Exempting facilities that burned hazardous waste for energy recovery from Subtitle C’s requirements created a regulatory ‘loophole’ by means of which over half of the hazardous waste generated in the United States came to be burned in [boilers and industrial furnaces] not subject to RCRA.

In the The Hazardous and Solid Waste Amendments [HSWA] of 1984, Congress attempted to eliminate EPA’s regulatory energy recovery exemption when it enacted [RCRA] section 6924(q) and added 6924(q)(1)] to override 40 CFR 261.33.

Congress closed this loophole by enacting RCRA section 3004(q)[which] set a deadline of November 8, 1986 for the EPA to promulgate regulations governing the burning of hazardous waste for energy recovery.

In January 1985, EPA eliminated the energy recovery exclusion by amending definition of “solid waste” to include materials that are recycled” by burning for energy recovery. 

This is where the problem begins.  To eliminate "a regulatory ‘loophole’" where over half of the hazardous waste generated was being burned in boilers and industrial furnaces (BIFs) which were not subject to RCRA, The EPA made recycling that involved burning for energy recovery a Solid Waste.

If the waste is a "Listed Waste," it is now a "Hazardous Waste" because it first met the definition of a "Solid Waste" once the generator decided to "recycle" it by "burning for energy recovery."

The waste to be burned becomes a Solid Waste because it is going to be recycled by burning for energy recovery.  When it becomes a "Solid Waste" a "Hazardous Waste" determination is made.  If the waste appears on the F or K list it becomes a "Listed Hazardous Waste."

Now that you have a "Listed Hazardous Waste" it must be managed and sent to a facility that is permitted to accept and treat this waste.  Since we are talking about waste that can be burned for energy recovery, the treatment is most often destructive incineration at a RCRA permitted facility.

Now Congress in 1984 had no way of knowing how the EPA would address closing this loophole so they added a whole new section to RCRA called 6924(q).  This section is where the Court slapped EPA's hand over the Comparable Fuels Exemption.  We will come back to that in a bit.

Right now ol' EPA is in a corner.  Congress is mad about all that hazardous waste being burned in BIFs outside of RCRA Subtitle C jurisdiction because this old EPA regulations "expressly exempted from [RCRA] section 6924’s hazardous waste standards “material . . . being burned as a fuel for the purpose of recovering usable energy."  The way EPA did this was by claiming that such material was not "discarded" which was one of the requirements to become a Solid Waste.

See how this works?  Change the definition and poof!  Not a hazardous waste. Still might be hazardous (reality) but it ain't no longer a "hazardous waste" (legality).  This works both ways.  Some thing that are "hazardous waste" or not hazardous while some wastes that are not "hazardous waste" are hazardous as all get out!

Anyway back to EPA getting painted in a corner.  So there the EPA is after 1985 with no way to help generators economically and safely manage hazardous waste streams that are listed hazardous waste streams but pose no more risk than the material version.  To stop bad things from being "burned as a fuel for the purpose of recovering usable energy" appropriate things were also prohibited.  This was silly and went against the other mandate of RCRA which was to facilitate recycling.

What to do?  Now we have a regulation 40 CFR 261.2 that makes the burning of a spent waste a "Solid Waste" and all this good waste that could be recycled by burning for energy recycling gets tagged as a "Listed Hazardous Waste."  Plus, in the 1984 HSWA they added [RCRA] section 6924(q) which governs:

“[h]azardous waste used as fuel” and mandates that EPA regulate entities that produce, burn for energy recovery or distribute/market hazardous-waste-derived fuel. In particular, it provides that EPA “shall promulgate regulations establishing . . . as may be necessary to protect human health and the environment”: “(A) standards applicable to the owners and operators of facilities which produce a fuel . . . from any hazardous waste identified or listed...(B) standards applicable to the owners and operators of facilities which burn, for purposes of energy recovery, any [such] fuel . . . or any fuel which otherwise contains any hazardous waste . . . and (C) standards applicable to any person who distributes or markets any [such] fuel . . . or any fuel which otherwise contains any hazardous waste.” 

What to do...what to do?  Bingo!  Let's exempt from [RCRA] section 6924(q) wastes that are similar to fuels that are currently being burned for energy:

EPA proposed the Comparable Fuels Exclusion in 1996. Following notice and comment, the final version was published in the 1998 Rule. The Comparable Fuels Exclusion exempts from the section 6924(q) hazardous waste fuel standard requirement all “comparable fuels,” which are “fuels which are produced from a hazardous waste, but which are comparable to some currently used fossil fuels.”

Why the EPA went this direction has not been researched by me.  I assume it was viewed as an easier path forward because it took this waste out of the RCRA requirements:

EPA’s stated rationale for the Comparable Fuels Exclusion was that EPA “has discretion to classify . . . as a fuel product, not as a waste” a “hazardous waste-derived fuel [that] is comparable to a fossil fuel in terms of hazardous and other key constituents and has a heating value indicative of a fuel.” Under this rationale, EPA explained, it “can reasonably determine that a material which is a legitimate fuel and which contains hazardous constituents at levels comparable to fossil fuels is not being ‘discarded’ and therefore is not “waste.”

Once again, you see how this works?  Change the definition and poof! You can kind of see why groups like the Sierra Club are a bit skeptical of whether or not the public and environment is being protected.

To be comparable, the fuel must:

“meet specification levels comparable to fossil fuels for concentrations of hazardous constituents and for physical properties that affect burning,” such as heating value and viscosity. The Comparable Fuels Exclusion includes “an exclusion for a particular type of hazardous waste-derived fuel, namely a type of synthesis gas (‘syngas’) meeting particular specifications.” 

That "syngas" part did not sit well with groups like the Sierra Club.  However, the EPA did set some specifications for this waste fuel:

In setting its comparable fuel specifications, EPA used a “benchmark” approach “based on the level of hazardous and other constituents normally found in fossil fuels” so that “concentrations of hazardous constituents in the comparable fuel could be no greater than the concentration of hazardous constituents normally occurring in commercial fossil fuels.” 

Now this was not a blanket do-what-ever-you-want exclusion for this waste and the EPA also:

,,,imposes additional conditions “to assure that burning of comparable fuels will not become part of the waste management problem”—notably, it limits comparable fuels combustion to industrial furnaces, industrial and utility boilers and hazardous waste incinerators and it prohibits meeting specification limits through dilution. 

The problem with all of this hinges on the "poof!" change the definition methodology the EPA used.  Remember that [RCRA] section 6924(q) Congress wrote and I said we will get back to?  Well here it comes.  Here is what the Court says about that section

 Congress added section 6924(q) in response to EPA’s regulations that excluded from the definition of “solid waste” (and thereby of “hazardous waste”) hazardous materials that are—or will be—burned for energy recovery as not “discarded”; and the Congress “addressed this problem by deeming the offending materials to be ‘discarded’ and therefore within the statutory definition of ‘solid waste.’ ” Thus, for the purpose of interpreting section 6924(q), “discarded” is not, as EPA claims in the 1998 Rule, “an ambiguous term.” And EPA therefore has no discretion to “reasonably” construe the term to exclude hazardous-waste-derived fuels from regulation. 

The Court also told the EPA that "any" means "any."

So the vacating of EPA's Comparable Fuels Exclusion is based on the word "shall" and "any."

From the statute’s mandatory and inclusive language we can only conclude the Congress intended to require that EPA regulate the production, burning for energy recovery and distributing/marketing of all such fuels derived from all listed hazardous wastes...  Given the plain intent of the Congress, EPA had no discretion, as it claimed, to create its own Comparable Fuels Exclusion to exempt from regulation fuels that are derived from a listed hazardous waste and therefore subject to mandatory regulation under section 6924(q). 

This is where we find ourselves now.  Back to the drawing board.  No more "poof!" change the definition for you EPA.


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 5

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Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 3

Here is what the Court concluded:

Given the plain intent of the Congress, EPA had no discretion, as it claimed, to create its own Comparable Fuels Exclusion to exempt from regulation fuels that are derived from a listed hazardous waste and therefore subject to mandatory regulation under section 6924(q). 

Let's move from the conclusion, to the beginning...

From the statute’s mandatory and inclusive language we can only conclude the Congress intended to require that EPA regulate the production, burning for energy recovery and distributing/marketing of all such fuels derived from all listed hazardous wastes—with the sole express exclusions of:

1. certain oil-containing petroleum refinery wastes that are converted into petroleum coke and
2. facilities that burn only de minimis quantities of hazardous waste,

If you will recall, the Sierra Club, EarthJustice, The Louisiana Environmental Action Network (LEAN), and the Natural Resource Defense Fund (NRDF) all contend that we will now be protected because the Court vacated EPA's Comparable Fuels Exclusion.  Here is what John Walke, Director of NRDC’s Clean Air Program states:

“Federal law reserves its most protective safeguards for the burning and disposal of hazardous wastes that can cause cancer and severe health harms. This unanimous court decision rightly restores those safeguards to the American people, promising safer communities across the country where hazardous waste is being burned today without following protective practices."

What the Court found had nothing to do with safeguards, safer communities, or following protective practices.  I agree with the EPA when they stated:

...it has discretion in exercising jurisdiction over hazardous waste-derived fuels that are essentially the same as fossil fuel, since there would likely not be environmental benefits from regulating those hazardous waste-derived fuels (i.e., burners would likely just choose to burn fossil fuels).”

"In fact, EPA asserted:"

...many of the commercial fossil fuels already being burned “could be less ‘clean’ than the comparable fuels, so that substitution of some commercial fuels could be a net deterrent.” In sum, EPA “expect[ed] that the comparable fuel would pose no greater risk when burned than a fossil fuel and would at the same time be physically comparable to a fossil fuel, leading to the conclusion that EPA may classify these materials as products, not wastes.”

 Here is where the camps divide.  And that division comes from how the term hazardous waste is viewed.

The Sierra Club and its like-minded friends understand the term "hazardous waste" to mean stuff that "can cause cancer and severe health harms" or "can cause cancer and other horrible diseases," and that the regulations are necessary to "protect us from dangerous, even deadly, accidents and explosions.”

Some folks in the EPA understand the term "hazardous waste" to be a legal term and instead focus on the reality.  That is, what are the risks associated with the waste in question.  Unfortunately, laws and regulations are not always developed with a clear understanding of what the impact will be.  This is where the EPA finds itself getting painted into a corner.  RCRA is a 1970's law with 1980's regulations that do not allow for progressive waste management outcomes that are possible in 2014.

To top that off, any changes to reflect new data, technology, or management practices are met with opposition from the Sierra Club thinking groups who believe any changes will result in harm to a community and the hazardous waste industry who want no changes to these rules that will impact their bottom line.

We agree with EPA that under our precedent, the Environmental Technology Council’s interest in the litigation—“to protect its members’ competitive position in selling greater quantities of waste treatment and disposal services,”—“does not fall within the zone of interests” that RCRA is intended to protect. (Page 13)

This is what the EPA is up against.  So when they make the assertion:

"...that the comparable fuel would pose no greater risk when burned than a fossil fuel and would at the same time be physically comparable to a fossil fuel, leading to the conclusion that EPA may classify these materials as products, not wastes.”

They did this, I believe, specifically to avoid the regulation path whereby the Sierra Club and friends along with the Environmental Technology Council would gum up the process in the public comments period.

And therein lies the problem in 2014 with the way we regulate wastes that are defined as hazardous.  We have regulations that require unnecessary "protective practices" that do nothing to protect public health or the environment.  The opposition and lawsuit brought by the Sierra Club against the Comparable Fuel Exclusion is a perfect example of how health risk is poorly understood and, as with this case, completely ignored so we can focus instead on the word "shale."

Section 6924(q) unequivocally provides that EPA “shall promulgate regulations establishing . . . standards” such “as may be necessary to protect human health and the environment...” The word “shall” makes the directive to regulate hazardous-waste-derived fuels mandatory

The reason for the Sierra Club's challenge to the EPA was due to the belief that:

"...the finalized rule would allow refineries to burn more than 300,000 tons of hazardous waste every year without meeting the RCRA's protective standards for storing and transporting it and without meeting the Clean Air Act’s requirements for burning it."

The Sierra Club won, not because more protective rules are necessary to reduce risks, but because the EPA did not comply with the word "shale."

The word ‘shall’ generally indicates a command that admits of no discretion on the part of the person instructed to carry out the directive.” And the repeated use of “any” makes the mandate broadly inclusive—reaching all fuels produced from all listed hazardous wastes. (Page 14)

Which brought the Court to this:

Given the plain intent of the Congress, EPA had no discretion, as it claimed, to create its own Comparable Fuels Exclusion to exempt from regulation fuels that are derived from a listed hazardous waste and therefore subject to mandatory regulation under section 6924(q).

Earlier I spoke about the EPA getting painted into a corner.  Well that's kind of what 6924(q) did to them.  The EPA tried to get out of that corner by claiming that their Comparable Fuels Exclusion was in fact a "standard."

EPA argues in its brief that the Comparable Fuels Exclusion is itself a “standard” within the meaning of section 6924(q), which requires only that EPA establish “standards . . . as may be necessary to protect human health and the environment,” 

The Court pretty much told the EPA "horse hockey!"

The rationale EPA now offers—that by setting criteria for exclusion from section 6924 regulation, it was in fact “establishing standards” under section 6924 specifications—is entirely post hoc. 

 I had to look up what was meant by "post hoc:"

Post hoc means formulated after the fact. It is a Latin term that translates to "after this." The term may be used to refer to the fallacy of arguing that since one event happened before a later event, the first event caused the later one. (source)

 There are two questions I find myself asking:

1. Was the previous Comparable Fuel Exclusion sufficient enough to protect human health and the environment?
2. How did the EPA get itself painted into this corner?

I want to first look a question number 2.

Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 4

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Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 2

Why?  I think I know the answer; cuz its a hazardous waste!

“Today’s decision will safeguard the health of communities throughout the Gulf region. Exposure to hazardous waste can cause cancer and other horrible diseases that far too many people here already suffer from. Getting rid of these loopholes is a big step in the right direction."

See?   Hazardous waste can cause cancer and other horrible diseases.  That's what Marylee Orr, president of the The Louisiana Environmental Action Network (LEAN) is quoted as saying.  So getting rid of the Comparable Fuels Exclusion - a 'loophole' as she sees it - will protect the community.  This is, in my opinion, and important claim.  Will public health be protected if there is no Comparable Fuels Exclusion?

The Sierra Club claims there is a harm being done to their members because of this exclusion.  There had to be a claim of harm to get the court case going - called "standing."  In order for the Sierra Club to bring this case forward they had to find people who claim to be harmed.

The Environmental Petitioners [Sierra Club] have met their burden of demonstrating standing on behalf of their members. They have submitted declarations of long-time members who spend time near facilities which, as a result of the Comparable Fuels Exclusion, now burn comparable fuels, and who are concerned about the emissions’ effects on their health and, in some cases, spend less time outdoors on that account. 

This, according to the Court would:

...satisfy the Environmental Petitioners’ evidentiary burdens to demonstrate injury, causation and redressability.  

Now here is where it gets all legal like.  In order to bring the case forward, they had to find members could demonstrate injury, causation and redressability.  This would seem to support Ms. Orr's contention that vacating the exclusion will "safeguard the health of communities throughout the Gulf region."  That sounds reasonable.  Harm should be mitigated.  The Court write:

It is “well-established . . . that standing will lie where ‘a plaintiff demonstrates that the challenged agency action authorizes the conduct that allegedly caused the plaintiff’s injuries, if that conduct would allegedly be illegal otherwise.’ ”  This is precisely the case here. Once EPA promulgated the Comparable Fuels Exclusion, it was “ ‘a hardly-speculative exercise in naked capitalism’ ” to predict that facilities would take advantage of it to burn hazardous-waste-derived fuels rather than more expensive fossil fuels. 

 The EPA [called the Intervenor]...:

...does not dispute that, as it turned out, many facilities did just that. In fact, one facility in proximity to the Environmental Petitioners’ members—the Chemical Co. Baton Rouge Plastics Plant—had pending RCRA applications to combust hazardous waste in its boilers (subject to RCRA regulation) before the 1998 Rule issued—which applications it promptly withdrew in May 1999 when it achieved compliance with the Comparable Fuels Exclusion and could therefore burn such fuels free from RCRA regulatory constraints. 

Remember, in order for the case to go forward, the Sierra Club had to find members that could meet the evidentiary burdens to demonstrate injury, causation and redressability.  This gave them standing.  There had to be a claim of harm. This harm came about when the company - Baton Rouge Plastics - burned fuels under the Comparable Fuels Exclusion.

The Sierra Club does not have to show that there was harm only allege that there was harm because the EPA allowed Baton Rouge Plastics to burn fuels under the Comparable Fuels Exclusion.

This is where I get confused.  Standing comes, in this case, from "the conduct that allegedly caused the plaintiff’s injuries, if that conduct would allegedly be illegal otherwise."  This states that the plaintiff was injured.  Were the "long-time members who spend time near facilities which, as a result of the Comparable Fuels Exclusion, now burn comparable fuels" injured or just "concerned about the emissions’ effects on their health?"

That's what bugs me about this case.  There is nothing presented that shows that there was harm.  There is nothing presented that shows how the health of communities throughout the Gulf region is now "safeguarded."  There is nothing presented that shows that the hazardous waste burned presents a higher or different risk then burning a material fuel.  Nothing.  This whole vacating process is based on whether EPA could make a Comparable Fuel Exclusion.

So let's get back to harm:

The [EPA] asserts that the Environmental Petitioners have not shown that burning comparable fuels is any more dangerous than burning fossil fuels and therefore they have not demonstrated the possibility of any injury from the Comparable Fuels Exclusion. “In EPA’s expert judgment,” they note, “burning these comparable fuels will have roughly the same risks, and the same affect [sic] on air quality, as burning commercially available virgin fuels.”

But that did not matter to the Court apparently:

The Environmental Petitioners, however, are challenging EPA’s assessment of the Comparable Fuels Exclusion’s risks—and we “assume for standing purposes” that the Environmental Petitioners are “correct on the merits.” 

The whole case, once it was allowed to move forward became about answering the question of whether the Comparable Fuels Exclusion bypassed the requirement that the EPA "shall promulgate regulations establishing . . . standards”

Nothing to do about harm...

Legality...Reality


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 3

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Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 1

It ends with this:

For the foregoing reasons, we grant the Environmental Petitioners’ petitions for review and vacate the Comparable Fuels Exclusion codified at 40 C.F.R. §§ 261.4(a)(16) and 261.38.

Those "Environmental Petitioners" the Court is talking about is the Natural Resources Defense Council and the Sierra Club.  I see both these two groups commenting on a number of environmental issues and proposed regulations quite a bit.  Here is what the Sierra Club has to say about their effort regarding environmental laws:

The Sierra Club has been the nation's leader in environmental litigation since the beginning. In 1971, the pioneering Sierra Club v. Morton lawsuit - a case challenging a proposed Walt Disney Resort in the Mineral King Valley - gave citizens the right to sue to enforce environmental laws. Since then, the Sierra Club has used the courts to fight for environmental protection at the national, regional, and local levels, giving citizens the means and legal expertise to enforce our hard-won environmental laws and protect our water, air, and wilderness. The law books are literally filled with watershed decisions won by the Club over the years.

So the Sierra Club takes suing "to enforce environmental laws" serious.  That's a noble and necessary cause to make sure our environmental laws are being enforced.  But what if the enforcement of an environmental law does not "protect our water, air, and wilderness?"

I am going to look at the recent United States Court of Appeals case that vacated the "Comparable Fuels Exclusion"  Once again I need to stress that I am not a lawyer, I do not claim to understand this stuff better than a lawyer, nor do I claim to know better than the Court.  As a citizen I can read what they wrote and I can comment on it.  So here we go...

I have not written anything for this blog in a while.  If you have in the past read what I have posted then you will hopefully understand that I write with the protection of public health and the environment as my main concern.  If it does not protect public health or the environment then it will be criticized. In my classes I talk about this as "reality and legality."

Just because its legal does not make it protective of public health and the environment.  And on the other side of that coin, just because it is illegal does not make it harmful to public health and the environment.

In the world of  the EPA's regulations for Hazardous Waste, we have a lot of requirements to mange a waste as hazardous even if it is not hazardous.  Case in point, Nicoderm Patches that contain, as the "sole-active ingredient" - Nicotine - a P-Listed acutely listed hazardous waste.  This creates a lot of cost and hassle for a business that now must manage a non-hazardous item as a hazardous waste.  It also creates confusion whereby good-intention folks like the Sierra Club cannot differentiate between the reality of a waste being hazardous and a hazardous waste not being hazardous.

In other words, using their mode of thinking, calling a waste a "hazardous waste" makes it hazardous.  Doing anything with that "hazardous waste" other then managing it as a "hazardous waste" is obviously not protective of public health.  Here is how the thinking goes from their actual perspective:

“Here in Baton Rouge, the toxic air pollution is a problem we live with every day. Today’s court decisions will help cut that pollution down and make our air safer to breathe. Instead of creating illegal loopholes like these, the EPA should be working to keep us safe.”

The guy quoted with saying that is William Fontenot, Conservation Chair of Sierra Club’s Delta Chapter in Louisiana.  This belief is echoed by one of their members:

“I’m so thankful that the court sided with people like me who have to live and work near industrial plants that are allowed to use these excuses to manage hazardous wastes without following the rules. I feel great relief knowing that the law really is there to protect us from dangerous, even deadly, accidents and explosions.”

This reasoning contends that before the Comparable Fuels Exclusion was vacated:

1. The air was not safe to breath in and around businesses who were using the Rule.
2. The EPA, because of this Rule, was not keeping us safe.
3. Businesses who used the Rule were not protecting the public from dangerous, even deadly, accidents and explosions.

So what was going on before this Rule was vacated?  What the heck is/was the Comparable Fuels Exclusion?

Here is what the Court says about the Rule (exclusion):

The Comparable Fuels Exclusion exempts from [RCRA] section 6924(q) hazardous waste fuel standard requirement all “comparable fuels,” which are “fuels which are produced from a hazardous waste, but which are comparable to some currently used fossil fuels.”

 and...

To be comparable, the fuel must “meet specification levels comparable to fossil fuels for concentrations of hazardous constituents and for physical properties that affect burning,” such as heating value and viscosity.

The Court states that:

In setting its comparable fuel specifications, EPA used a “benchmark” approach “based on the level of hazardous and other constituents normally found in fossil fuels” so that “concentrations of hazardous constituents in the comparable fuel could be no greater than the concentration of hazardous constituents normally occurring in commercial fossil fuels.” 

Comparable Fuels are just that, fuels.  To be a comparable fuel it must be no different than material fuel currently being burned.  In other-words, if gasoline is a complex mixture of solvents including benzene, toluene, xylene, and ethylbenzene, then burning waste solvents that contain these same constituents in the same concentrations would be like burning gasoline.

And...if burning gasoline is okay and protective of public health and the environment then burning solvents with the same constituents would produce the same risk.

But, the EPA said that they would impose additional conditions “to assure that burning of comparable fuels will not become part of the waste management problem:”

—notably, it limits comparable fuels combustion to industrial furnaces, industrial and utility boilers [BIF] and hazardous waste incinerators and it prohibits meeting specification limits through dilution. 

Now remember, the Sierra Club's Conservation Chair and one of its members claim that the "court decisions will help cut that pollution down and make our air safer to breathe" and "the law really is there to protect us from dangerous, even deadly, accidents and explosions.”

So it is okay to burn gasoline with BTEX in any engine, but not okay to burn waste solvent with BTEX in an EPA regulated BIF.

Why?


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 2

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