Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 5

This leaves me with question number 1: Was the previous Comparable Fuel Exclusion sufficient enough to protect human health and the environment?

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.”

Except for the last quote, those came from some top ranking folks within their respective organizations.  Surely  William Fontenot, Conservation Chair of Sierra Club’s Delta Chapter in Louisiana, John Walke, Director of NRDC’s Clean Air Program, and Marylee Orr, president of the LEAN must understand the risk posed by the exclusion to make such claims.

Still though, I'm not so sure there was a risk above and beyond the normal risk of burning fuel.  This rule does not prohibit this material from being produced, accumulated, or burned.  It only prohibits the material from being being burned in a BIF that is not approved to burn hazardous waste.

So... Was the previous Comparable Fuel Exclusion sufficient enough to protect human health and the environment?  I don't know.  I think it was, or at least I think I understood the BIF rule.  But if these high-ranking folks quoted above say that we will now be safer, maybe they know something I do not.

Let's look at the Exclusion from a health and safety standpoint.  According to the Court:

EPA proposed the Comparable Fuels Exclusion in 1996.  Following notice and comment, the final version was published in the 1998 Rule. The Comparable Fuels Exclusion exempts from the section 6924(q) hazardous waste fuel standard requirement all “comparable fuels,” which are “fuels which are produced from a hazardous waste, but which are comparable to some currently used fossil fuels.”

Here is how the EPA describes Comparable Fuels:

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. 

In a blind taste test you can't tell the difference!

Now with regards to public safety and risk:

EPA asserts that the Comparable Fuel Exclusion’s specifications and restrictions—in conjunction with existing Clean Air Act, Occupational Safety and Health Administration and Department of Transportation regulations—constitute 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).”

One big issue, the Court points out:

... 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.”

The Court continues:

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.

If the Court is unsure about the protectiveness of  of the Exclusion then it is fair to assume that others, such as the Sierra Club, might not be convinced of the safety as well.  If you did not specifically address how the rule would protect human health and the environment how do we know it does?

This is where guys like me, and some like-minded folks in the EPA and TCEQ separate ourselves from the herd.  Our problem is a "trust us" one, and thanks to lobbyists and polluters who skirt the law, our message gets buried by the concern and fear over the words "hazardous waste."

Still...I don't know if the exclusion did "protect human health and the environment."  The Court, like the Sierra Club does not seem to buy in, or understand, the concept of equal risk.  This puts guys like me in a pickle.  I need to compare risks when the public wants the risk singled out.  Risk from benzene from smoking should never be compared to the risk of benzene exposure from a stack one half a mile from a refinery.

With the exclusion, EPA was looking at the risk of burning fuel you purchase with the risk of burning fuel you produce on site.  Like I pointed out in my previous post.  Gasoline is a complex mixture of solvents, primarily benzene, toluene, ethylbenzene, and xylene.  Affectionately called "BTEX."

Burning the same concentration of BTEX in a waste that is found in gasoline presents no difference in the risk.  Hence EPA's argument that it does not present a “greater risk than burning fossil fuel.”

Back to my question: Was the previous Comparable Fuel Exclusion sufficient enough to protect human health and the environment?  I guess its time to look at the regulation that came about under this exclusion.

40 CFR 261.4(a)(16): Comparable fuels or comparable syngas fuels that meet the requirements of § 261.38.

40 CFR 261.38: Exclusion of comparable fuel and syngas fuel

261.38 is where the guts are, so that's where I will focus first.  What I am looking for is conformation that the public's health and the environment is protected.  I'll look at this in the order that it appears in the regulation.  The first thin it talks about is a prohibition on blending and diluting (a)(3):

"Hazardous waste shall not be blended to meet the comparable fuel specification" Except...

"A hazardous waste blended to meet the viscosity specification, if it does not "not violate the dilution prohibition" and "blended at a facility that is subject to the applicable requirements of parts 264, 265, or 267 or § 262.34"

Parts 264 and 265 are for TSDFs.  The standards in this part apply to owners and operators of all facilities which treat, store, or dispose of hazardous waste.  Part 267 is for Superfund/CERCLA facilities and Part
262.34 Accumulation Time is for large and small generators.

Right off the bat, hazardous waste cannot be blended by dilution and can only be blended to meet viscosity specifications if it is done at a facility that complies with current hazardous waste regulations.

So the blending process, if it is required, is not being performed "without following protective practices."  I suspect that's what we will see when I look at the next sections of 261.38.


Next Post: Dear Sierra Club, Please Stop.  Comparable Fuels Rule Part 6

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