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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