Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 7

At this point in the conversation, after six tries to explain what the Court said and what the comparable fuels rule provides, we are still needing to address if public health and the environment was protected.

In terms of "safeguards" and "protective practices" I can state that they are there.  The much harder to definitively answer is the risk from exposure due to the burning.  In order to move forward we have to come to an agreement on a few things.

First, we need to agree that compliance with the "applicable requirements of parts 264, 265, or 267 or § 262.34" meets the RCRA protection standard  and are sufficient “to protect human health and the
environment” that Congress wanted. If we can agree that those regulations are no more and no less protective then any other regulations for a hazardous chemical/material, then we can move forward.

Second, we need to agree that the Clean Air Act and regulations, as it stands now, is protective of public health and the environment and this is done through a permit requirement.

If you say that one or both is weak, then nothing done to comparable fuels, short of  'don't generate them' is going to satisfy you.  These waste streams, whether burned onsite in a BIF or sent offsite to a permitted TSD facility, follow the exact same rules for "safeguards" and "protective practices" and to "cut that pollution down and make our air safer to breathe."

Now you can argue that these rules could be better or more restrictive, but that's not relevant to this case.  It is Sierra Club's contention that the Comparable Fuels Exclusion was a loophole and when used put the community at risk:

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."

My question is 'what safeguards were not in place?'  Am I missing something?  What does the Sierra Club and friends see that I do not?

The Court finding has nothing to do with a finding of actual, or an increase in, harm or risk.  This is what grinds my gears about these cases.  They do not address the issue of harm.  Yet look at what is claimed:

Those statements claim that there was harm or risk and now it is gone.  Was there?  That's the more important question to look at.  We need to manage waste in a more cost-effective and environmentally sound way and that includes more than following a 1980 regulation, congressional intent, or ignoring other risks that come into play when you ship waste off site.

Quite simply put, what is the best way to manage this type of waste stream?  If BIFs are less safe then incinerators, then what will make them safer?  If they are exactly the same as a RCRA permitted incinerator, then what is the issue of concern.  Why is the best outcome not addressed when making new rules to manage waste?  Why does the Sierra Club and friends oppose every change to the 35 year old hazardous waste regulations claiming that it is less protective then what is currently in place?

They won this case, but they won it on a technicality and not on the merits of finding actual risk or harm.  The Court, in my opinion, looked at it with the very same glasses that the Sierra Club used.

Finally, the 1998 Rule did not even purport to apply the RCRA protection standard EPA now cites—that the regulatory standards be sufficient “to protect human health and the environment.”

Instead, EPA considered only whether a fuel complying with the Comparable Fuels Exclusion’s specifications presents a “greater risk than burning fossil fuel”—which is quite a different level of protection—and EPA’s answer was merely that it “expects” not.

What the Court wants, and the Sierra Club wants appears to be a quantitative determination of that specific risk and not a comparison to the risk associated with a similar process or endeavor.  Now I look at risk a bit different than most.  I look at it from the standpoint of an end point or outcome.  In other words, the fire risk of pouring 55 gallons of Acetone with a flash point of -4 F is the same as pouring 55 gallons of gasoline with a flash point of -45 F and the same risk as pouring 55 gallons of toluene with a flash point of 43 F.

Under normal working conditions all three present the same fire risk even though the gasoline has the lowest flash point.  I don't need to look at the risk individually as the risk is the same.  And if you asked me if the gasoline presents a "greater risk" of catching on fire then the toluene, the answer I would give you that I "expect" not.

The EPA looked at the risk not in terms of what the risk is, but is it expected to be a "greater risk than burning fossil fuel.”  The appropriate - and in my opinion correct answer - is we [EPA] "expect" not.  This is consistent with other things we assume to be the same. In the case of comparable fuels, the EPA appears to have looked at it from an end point/outcome perspective.  If it is burned in place of fossil fuel products, will there be a "greater risk."


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 8

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