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

This is where we start to divide.  Some of us, and I include myself with the EPA here, take a much more view of the physical world in which hazardous chemicals are used.  We do not draw a difference between the benzene in a waste and the benzene in a product.  Benzene is benzene.  Same with other parameters, such as flash point.  Under normal working conditions, if the flash point is below the ambient temperature it is flammable.  The only parameter that changes the risk is the boiling point,  It does not matter if the flash point is -45 F or 45 F.  Getting rid of one does not change the risk unless the ambient temperature drops below 45 F.

The EPA, I assume, also looked at the whole process of burning these waste streams.  Number one, to be a comparable fuel it had to meet "constituent specifications" for compounds listed in 40 CFR 261.38 Table 1:

Number two, the made the facility "subject to the applicable requirements of parts 264, 265, or 267 or § 262.34" and does not violate the dilution prohibition."

Number three, the EPA requires compliance with "existing Clean Air Act, Occupational Safety and Health Administration and Department of Transportation regulations"  According to the Court:

EPA’s determination of “the level of regulation ‘necessary’ for the management, i.e., the storage, transportation, and burning, of comparable fuels that is protective of human health and the environment, as required by section 6924(q).” 

The Court, as far as I can tell, does not contest this claim.  The Courts problem with the Comparable Fuels Exclusion seems to be one of semantics.  Congress told the EPA,,,:

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.” 

The EPA claims they have a regulation in place designed to provide “the level of regulation ‘necessary’ for the management, i.e., the storage, transportation, and burning, of comparable fuels that is protective of human health and the environment."  When I look a 40 CFR 261.38 I see a regulation and that regulation appears to require stuff that is known to be protective.  Well maybe not so much a problem with semantics as it is a problem with but that's not what you said!

This theory [the Court says] was not part of EPA’s rationale as expressed in the 1998 Rule. There, EPA concluded it need not establish any standards applicable to qualifying comparable fuels because a comparable fuel is not a “waste” but rather a “fuel product” and therefore excluded from the statute’s reach.

Yes, they have a regulation [261.38] and that regulation requires actions and prohibitions designed to  protect human health and the environment, and these regulations address standards for the producer of the fuel, the burner of the fuel, and the marketer of the fuel.  The only problem is that the EPA did not call this a regulation because they claimed that comparable fuels are not solid wastes and therefore not listed waste and therefore not subject to what Congress required in 6924(q).

“The rationale for the Agency’s approach is that if a hazardous waste derived fuel is comparable to a fossil fuel in terms of hazardous and other key constituents and has a heating value indicative of a fuel, EPA has discretion to classify such material as a fuel product, not as a waste.”

This is just silly.

• Do we have a regulation for “[h]azardous waste used as fuel”  Yes, 261,38, this meets one part of 6924(q).

• Do we have "(A) standards applicable to the owners and operators of facilities which produce a fuel . . . from any hazardous waste identified or listed , . . . "  Yes, 261.38(b)(1)(ii).

• Do we have "(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 . . ."  Yes 261(b)(3).

• Do we have "(C) standards applicable to any person who distributes or markets any [such] fuel . . . or any fuel which otherwise contains any hazardous waste.” Yes, 261.38.  Okay, here is nothing specific written for these two activities.  They don't seem to play into the process here.  The Generator must...and the Burner must.... and a facility that blends or treats must...  I read this as the marketer and distributor must rely on the other entities to do their thing.  This is different than Used Oil (279 subpart H) where the generator can pretty much stay in a dark room letting the marketer and distributor do the leg work. 

That does not seem to matter to the Court.  Even though the EPA came up with standards, because they excluded comparable fuels from being a hazardous waste, well that was just not right the Court determined:

In particular, contrary to its stated rationale, EPA had no discretion to “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’ within the meaning of [42 U.S.C. § 6903(27)].”

This is the very reasoning that the Congress rejected when it enacted section 6924(q) to close EPA’s “regulatory loophole” for energy recovery. As we explained...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.’ ”

The Court, can only come to one conclusion which requires the Comparable Fuels Exclusion to be vacated:

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.

Is the Sierra Club and friends correct that 261.38 too was just another loophole?

Today’s court decisions will help cut that pollution down and make our air safer to breathe. Instead of creating illegal loopholes like these

I do not see what the folks at the Sierra Club see.  I see these listed wastes as nothing different than other solvents and materials we burn every day.  If you don't like burning fossil fuels, well that's a completely different topic.  The issue here is what, if anything, is wrong with the burning of listed wastes under the Comparable fuels regulation in 261.28?  Is the public protected, as the EPA claims, because their reasoning is sound?

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.” 

I can find nothing in the Court's document, the Sierra Club's website, or the internets to make make me think otherwise.  Still, I;m not able to leave it at that, not just yet.  If it is a sound reasoning, it needs to have a lot of support as to why.


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 9