The Court, in my reading of their decision, does not see it solely as a legal language decision, apparently siding with Environmental Technology Council's critique to the EPA of the 1998 regulation, being purposed as:
"an attempt to defer RCRA § 3004(q)-(s) regulation of . . . hazardous wastes to the CAA in accordance with RCRA § 1006(a) to avoid duplication, but without making the essential finding that such a deferral satisfies the objectives of RCRA.This "essential finding" is what is missing in their opinion but is actually there if you look at it pragmatically. The EPA contends that:
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 EPA supports this by:
...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.”
Under the benchmark specifications, EPA stated, it “reasonably expect[ed]—based on the methodology used to establish the specification—that the comparable fuel will pose no greater risk when burned than a fossil fuel and concomitant energy recovery benefits will be realized from reusing the waste to displace fossil fuels.”This, in my opinion meets the RCRA requirement that the EPA in:
Section 6924 provides generally that EPA “shall promulgate regulations establishing such performance standards, applicable to owners and operators of facilities for the treatment, storage, or disposal of hazardous waste identified or listed under this subchapter, as may be necessary to protect human health and the environment.”Unless I am missing something in my understanding of the Comparable Fuels Exclusion addressed in 40 CFR 261.38, EPA has met this requirement.
Again, the Court apparently is unable to look at what is in place instead focusing on the fact that the EPA "therefore has no discretion to “reasonably” construe the term to exclude hazardous-waste-derived fuels from regulation."
This, as I see it, is where the crux of the problem lay. EPA excluded Comparable Fuels from meeting the definition of a hazardous waste. They did not exempt it from regulations designed to "protect human health and the environment."
The Environmental Technology Council argued at the time 261.38 was being purposed that:
EPA has not conducted any kind of technical or risk analysis showing how a blanket exemption from all RCRA Subtitle C controls for hazardous wastes that meet the comparable fuel spec somehow adequately protects human health and the environment. Thus, the proposal is legally deficient.Excluding listed waste that meet the definition for Comparable Fuels from the definition of a hazardous waste seems to be the problem here,. The Environmental Technology Council states that this is a blanket exemption from all RCRA Subtitle C controls. That statement is true, but it is not the whole truth. 261.38 places Subtitle C controls on the blending, treating, burning, and transporting of listed wastes classified as Comparable Fuels.
The question I ask is: "Would a formal "technical or risk analysis" have concluded anything different?" The EPA should have given the baby the bottle here instead of stating:
"that EPA had statutory authority under section 6924(q) to exempt some hazardous-waste-derived fuels from regulation was a “key assumption” underlying EPA’s exercise of its “discretion to classify such material as a fuel product, not as a waste,”Basically, what they did was state that we don,t have to do this because it ain't a waste. All this did was make groups like the Sierra Club suspicious of whether the public health and the environment are protected.
The reason it takes me so many gosh darn posts with thousands of words is because I want to explain what is actually going on and how all sides of the issue might look at it. I could just put a couple of paragraphs together regurgitating what others say on this topic concluding that the Sierra Club is a bunch of cotton headed ninny muggins but I'm trying to make a case for a more pragmatic approach to waste management. I need the Sierra Club and friends to understand what is actually going on so they can devote their time and energy to issues that actually do impact public health and the environment, not just perceived issues.
More words, and another "next post" because I feel the need to address what the Court says in their finding for the Sierra Club. I have stated that the Comparable Fuel Exclusion as addressed in 261.38 is protective of human health and the environment. The burden is on me to support that.
I now have to address this: The Court also cited a comment to the proposed 261,38 regulation by Molten Metal Technology Inc. who asserted:
Therefore, the Agency’s comparable fuels proposal will likely result in higher exemption concentrations than levels that would normally be derived using a risk-based approach. Such an approach would violate the clear Congressional mandate in Section 3004(q) of RCRA to regulate the burning of hazardous waste for energy recovery “as may be necessary to protect human health and the environment.”My question to Molten Metal Technology is: Does 261.38 actually result in a higher concentration of hazardous constituents and, if it does, is the public impacted at a greater risk because of that allowance?
It is easy to make a claim, it is much more onerous to support it. This is why I am still on this topic nine posts in.
Next Post: Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 10
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