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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