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

.