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

.