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!