Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 3

Here is what the Court concluded:

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). 

Let's move from the conclusion, to the beginning...

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—with the sole express exclusions of:

1. certain oil-containing petroleum refinery wastes that are converted into petroleum coke and
2. facilities that burn only de minimis quantities of hazardous waste,

If you will recall, the Sierra Club, EarthJustice, The Louisiana Environmental Action Network (LEAN), and the Natural Resource Defense Fund (NRDF) all contend that we will now be protected because the Court vacated EPA's Comparable Fuels Exclusion.  Here is what John Walke, Director of NRDC’s Clean Air Program states:

“Federal law reserves its most protective safeguards for the burning and disposal of hazardous wastes that can cause cancer and severe health harms. This unanimous court decision rightly restores those safeguards to the American people, promising safer communities across the country where hazardous waste is being burned today without following protective practices."

What the Court found had nothing to do with safeguards, safer communities, or following protective practices.  I agree with the EPA when they stated:

...it has discretion in exercising jurisdiction over hazardous waste-derived fuels that are essentially the same as fossil fuel, since there would likely not be environmental benefits from regulating those hazardous waste-derived fuels (i.e., burners would likely just choose to burn fossil fuels).”

"In fact, EPA asserted:"

...many of the commercial fossil fuels already being burned “could be less ‘clean’ than the comparable fuels, so that substitution of some commercial fuels could be a net deterrent.” In sum, EPA “expect[ed] 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 EPA may classify these materials as products, not wastes.”

 Here is where the camps divide.  And that division comes from how the term hazardous waste is viewed.

The Sierra Club and its like-minded friends understand the term "hazardous waste" to mean stuff that "can cause cancer and severe health harms" or "can cause cancer and other horrible diseases," and that the regulations are necessary to "protect us from dangerous, even deadly, accidents and explosions.”

Some folks in the EPA understand the term "hazardous waste" to be a legal term and instead focus on the reality.  That is, what are the risks associated with the waste in question.  Unfortunately, laws and regulations are not always developed with a clear understanding of what the impact will be.  This is where the EPA finds itself getting painted into a corner.  RCRA is a 1970's law with 1980's regulations that do not allow for progressive waste management outcomes that are possible in 2014.

To top that off, any changes to reflect new data, technology, or management practices are met with opposition from the Sierra Club thinking groups who believe any changes will result in harm to a community and the hazardous waste industry who want no changes to these rules that will impact their bottom line.

We agree with EPA that under our precedent, the Environmental Technology Council’s interest in the litigation—“to protect its members’ competitive position in selling greater quantities of waste treatment and disposal services,”—“does not fall within the zone of interests” that RCRA is intended to protect. (Page 13)

This is what the EPA is up against.  So when they make the assertion:

"...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 EPA may classify these materials as products, not wastes.”

They did this, I believe, specifically to avoid the regulation path whereby the Sierra Club and friends along with the Environmental Technology Council would gum up the process in the public comments period.

And therein lies the problem in 2014 with the way we regulate wastes that are defined as hazardous.  We have regulations that require unnecessary "protective practices" that do nothing to protect public health or the environment.  The opposition and lawsuit brought by the Sierra Club against the Comparable Fuel Exclusion is a perfect example of how health risk is poorly understood and, as with this case, completely ignored so we can focus instead on the word "shale."

Section 6924(q) unequivocally provides that EPA “shall promulgate regulations establishing . . . standards” such “as may be necessary to protect human health and the environment...” The word “shall” makes the directive to regulate hazardous-waste-derived fuels mandatory

The reason for the Sierra Club's challenge to the EPA was due to the belief that:

"...the finalized rule would allow refineries to burn more than 300,000 tons of hazardous waste every year without meeting the RCRA's protective standards for storing and transporting it and without meeting the Clean Air Act’s requirements for burning it."

The Sierra Club won, not because more protective rules are necessary to reduce risks, but because the EPA did not comply with the word "shale."

The word ‘shall’ generally indicates a command that admits of no discretion on the part of the person instructed to carry out the directive.” And the repeated use of “any” makes the mandate broadly inclusive—reaching all fuels produced from all listed hazardous wastes. (Page 14)

Which brought the Court to this:

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).

Earlier I spoke about the EPA getting painted into a corner.  Well that's kind of what 6924(q) did to them.  The EPA tried to get out of that corner by claiming that their Comparable Fuels Exclusion was in fact a "standard."

EPA argues in its brief that the Comparable Fuels Exclusion is itself a “standard” within the meaning of section 6924(q), which requires only that EPA establish “standards . . . as may be necessary to protect human health and the environment,” 

The Court pretty much told the EPA "horse hockey!"

The rationale EPA now offers—that by setting criteria for exclusion from section 6924 regulation, it was in fact “establishing standards” under section 6924 specifications—is entirely post hoc. 

 I had to look up what was meant by "post hoc:"

Post hoc means formulated after the fact. It is a Latin term that translates to "after this." The term may be used to refer to the fallacy of arguing that since one event happened before a later event, the first event caused the later one. (source)

 There are two questions I find myself asking:

1. Was the previous Comparable Fuel Exclusion sufficient enough to protect human health and the environment?
2. How did the EPA get itself painted into this corner?

I want to first look a question number 2.

Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 4

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