 Coalition for
Responsible Waste Incineration
CRWI Update
April 30, 2008
HWC MACT
The amendment was published in the Federal
Register on April 8, 2008. As stated in the March Update, the
only unexpected issue raised in this amendment was the modification of
the startup, shutdown, and malfunction plan language in 63.1206(c)(2).
The Agency continues to go through all of the standards for all
categories to determine which they will defend. The only “official”
declaration EPA has made was in the September 27, 2007, “legal notice”
where they indicated they would not defend several cement kiln,
lightweight aggregate kiln, liquid fuel boilers, and hydrochloric acid
production furnace standards. At that time, EPA did not indicate their
intent to revise any incinerator standards. In light of EarthJustice’s
comments on this notice, EPA decided to go back through the remaining
standards to see if they would meet the criterion that the top
performers were the lowest emitters. In this process, EPA has
identified several other standards that may need to be revised. This
includes several incinerators (PM, mercury, SVM, and LVM) and cement
kiln (PM, SVM, and LVM) standards. It does not appear that EPA will
re-open any additional Phase II standards (not already identified in
the September 27 notice).
Definition of Solid Waste
EPA’s revisions to the definition of solid waste rule were sent to the
Office of Management and Budget (OMB) on April 4, 2008. This rule was
prompted by a series of court rulings that held that the current
definition was too narrow and should not include materials that
destined for beneficial reuse. The battle lines on this rule are
clearly drawn with the environmental groups and the waste industry
concerned about management on the land without some form of containment
and the lack of monitoring while industry is pushing for ways to
encourage recycling. Neither EPA nor OMB has given any indications of
what decisions they have made in the final rule. OMB is likely to take
their full 90 days to review this rule.
Beyond RCRA
At the Environmental Council of States meeting in New Orleans on April
15, 2008, EPA senior management identified a program designed to change
the focus of RCRA from waste management to sustainable materials
management. This process started in 2002 with a state, region, and
headquarters group developing a vision for managing wastes in 2020. In
April 2003, the group produced a report outlining this vision
(www.epa.gov/osw/vision.htm).
EPA has been compiling and analyzing
data on the volumes of materials and the lifecycle, energy, water, and
waste impacts of these materials since the report was released. EPA
hopes to use these analyses to identify priority materials, such as
electronics, carpet, and coal combustion products, that can be switched
to a different mode of management. EPA plans to finish the analysis
this Spring and publish their “roadmap” by the end of Summer.
Risk Guidelines
Various federal agencies announced several actions that may be of
interest to companies doing risk assessments. On April 8, 2008, EPA
announced a peer review workshop to review the Integrated Risk
Information System (IRIS) toxicological review for thallium. On April
23, 2008, EPA announced the formation of a review panel for an IRIS
toxicological review of hexanone. On April 25, 2008, EPA asked for
comments on an IRIS toxicological review of ethylene glycol mono-butyl
ether and the availability of literature searches for three IRIS
assessments (manganese, 1,2,4-trimethylbenzene, and
1,3,5-trimethylbenzene). EPA also asked for comments on 62 proposed
Acute Exposure Guideline Levels (AEGLs) on April 16, 2008. In addition,
the Agency for Toxic Substances and Disease Registry announced updated
toxicological profiles for acrolein, arsenic, barium, benzene,
heptachlor, lead, and zylenes (April 8, 2008). Additional information
on each can be found in the Federal
Register notices.
On April 10, 2008, EPA released a revised process for giving
stakeholders a broader role in reviewing the risk assessments for its
IRIS database (EPA’s Integrated Risk
Information System: Assessment Development Procedures
– www.epa.gov/ncea/iris
and click on IRIS Update (2008
Update)). EPA claims that the new procedure will streamline the process
and make it more transparent. However, critics say it will bog down the
process and allow federal agencies greater opportunities to influence
the process without increasing the opportunities for the public.
Meanwhile, the Government Accountability Office released a report on
April 29, 2008 (Toxic Chemicals:
EPA’s New Assessment Process Will Increase Challenges EPA faces in
Evaluating and Regulating Chemicals – www.gao.gov/index.html,
search on IRIS), that was strongly critical of the new process. The GAO
report suggests that the two OMB reviews and the interagency process
lack transparency.
Regulatory Agenda
Typically, EPA (and all federal agencies) tells the public what
regulations will be worked on twice a year in their Semiannual
Regulatory Agenda (www.epa.gov/lawsregs/search/regagenda.html).
In an
effort to be more streamlined, EPA has added the Action Initiation
Lists. This list will be published monthly (near the end of the month)
and will list every action EPA has or is planning on initiating that
month. This list can be found at www.epa.gov/lawsregs/search/ail.html.
Electronic Waste
A bipartisan group of Congressmen and Senators has developed a concept
paper prior to writing legislation governing the disposal of electronic
waste. As currently written, the concept paper suggests adding a new
subtitle to RCRA that would ban the land disposal of electronic waste,
exempt electronic waste from the current rules governing solid and
hazardous waste, require EPA to set minimum standards for new state
programs (but grandfather current state programs), and increase
notification and consent for electronic waste export. The electronic
industry has opposed this idea, stating that the proposal unfairly
places the burden on the industry to develop recycling programs. States
suggested that the ban should also include incineration of the
electronic waste. Because of the wide opposition from a number of
parties, it seems unlikely that any legislation governing electronic
waste will be introduced in this Congress.
Environmental Justice
Two identical bills, one in the House (H.R. 5896) and one in the Senate
(S. 2918) were introduced in April to address a controversial Supreme
Court ruling that made it more difficult for private citizens to sue
federal agencies under the Civil Rights Act. This legislation would add
new paragraphs to Section 601 of the Civil Rights Act that make it
clear that individuals can file suit under this law for discrimination
based on “policy or practice that causes a disparate impact on the
basis of race, color, or national origin...” H.R. 5896 was introduced
by Congresswoman Hilda Solis (D-CA) and is co-sponsored by Congressman
Alcee Hastings (D-FL). S. 2918 was introduced by Senator Robert
Menendez (D-NJ) and co-sponsored by Senators Hillary Clinton (D-NY),
Richard Durbin (D-IL) and Frank Lautenberg (D-NJ). Because these bills
were introduced so late in the session, it is unlikely that either will
be enacted in this Congress. However, should environmental justice
become an election issue, anything can happen.
Peer Review Panels
In May 2007, the American Chemistry Council (ACC) sent a letter to EPA
requesting that Dr. Deborah Rice, a Maine public health official, be
removed from a peer review panel that was examining the risk from
exposure to decabrominated diphenyl ether. Dr. Rice was the chair for
this panel. ACC requested Dr. Rice’s removal because she had previously
testified before the Maine legislature in her capacity as a state
employed scientist and urged a phase out of the chemical. ACC argued
that this was an improper conflict of interest. EPA agreed and removed
Dr. Rice from the panel. Environmental groups immediately objected to
this ouster and developed a list of 17 scientists that currently serve
on peer review panels that either work for industry or have financial
ties to industry. They convinced Congressman John Dingell (D-MI), the
Chairman of the House Energy and Commerce Committee to become involved.
In March 2008, Chairman Dingell asked EPA for all documents relating to
Dr. Rice’s removal from the panel. On April 2, 2008, Chairman Dingell
sent a similar request to ACC but also expanded the request to include
all records on nine of the 17 scientists identified by the
environmental groups. In addition, EPA’s Inspector General has been
asked to determine if the removal of Dr. Rice was done consistent with
existing federal laws, regulation, and other guidance. Thus, EPA’s
granting of ACC’s request to remove one person from a peer review panel
has set off similar challenges for a number of other participants in
peer review panels. People always seem to forget that even in politics,
Newton’s third law still applies.
Gasification Rule Litigation
On January 2, 2008, EPA published a final rule that excluded
oil-bearing hazardous secondary materials from the definition of solid
waste when those wastes are fed into a gasification system. On March
31, 2008, the Vanadium Producers and Reclaimers Association filed a
petition for review in the U.S. Court of Appeals for the District of
Columbia Circuit. On April 1, 2008, additional petitions were filed by
Sierra Club, Louisiana Environmental Action Network (LEAN), and the
Environmental Technology Council. In addition, EarthJustice (on the
behalf of Sierra Club and LEAN) filed a petition for reconsideration
with EPA on the rule. Petitions for review do not give any indications
of the issues to be raised during the litigation. However, the petition
for reconsideration from EarthJustice may give an indication of how
Sierra Club and LEAN will approach the litigation. EarthJustice makes
three major points in their petition for reconsideration. First, they
contend that EPA did not give ample notice and comment opportunity
because they did not base the final rule on the 2002 proposed rule but
on a 1998 notice of data availability. EarthJustice contends that
switching the basis for the rule did not give them ample opportunity to
comment on the 1998 issues. Second, EarthJustice contends that rule is
contrary to section 3004(q) of RCRA where Congress intended that any
material that qualifies as a hazardous waste should remain a hazardous
waste regardless of whether it is made into a fuel, marketed or
distributed as a fuel, or burned for energy recovery. Finally,
EarthJustice contends that EPA’s use of the Toxicity Characteristic
Leaching Procedure to measure the leaching potential for the slag
produced during the gasification process is arbitrary and capricious
because this test was not designed to measure leaching potential from
this type of material. Should EPA grant the petition for
reconsideration, this would delay the litigation until EPA finishes the
reconsideration process. If denied, this litigation should move forward
at the normal pace.
Climate Change
Senator Barbara Boxer (D-CA) still plans to bring S. 2191 to the Senate
floor for debate in June. The only other action on the Senate side has
been draft legislation floated by the Republicans that would repeal the
authority under the Clean Air Act to regulate carbon dioxide, preempt
state greenhouse gas regulations, and revoke new source review
requirements for facilities if those modifications reduce greenhouse
gas emissions. This is being cast as an alternative to cap-and-trade
legislation. In the House of Representatives, several Congressmen have
tried to put pressure on Congressman John Dingell (D-MI) to move
quicker on his climate change legislation. Congressmen Henry Waxman
(D-CA), Edward Markey (D-MA), and Jay Inslee (D-WA) have sent out a
Dear Colleague letter outlining principles they think should be
included in any climate change legislation. These include a
cap-and-trade program that cuts greenhouse gas emissions by 80% by
2050, transitioning the U.S. to a clean energy economy, finding ways to
minimize the impact on low and moderate income families, and aiding
developing countries in their efforts to adapt to climate change.
Meanwhile, Chairman Dingell has expressed concern that if Congress does
not act to change the way greenhouse gases are regulated under the
Clean Air Act, EPA will be forced to regulate carbon dioxide based on
the recent Supreme Court ruling. If this occurs, he predicted a
“glorious mess being visited on this country.”
In a Rose Garden speech on April 16, 2008, President Bush set a
national goal to stop the growth of greenhouse gas emissions by 2025.
However, the speech did not contain many specifics on how this would be
accomplished. He stated that current laws were never meant to regulated
emissions of greenhouse gases and were ill suited to do so. He also
stated that increased taxes or drastic cuts in greenhouse gas emissions
would hurt the U.S. economy. He also suggested that any reductions had
to be matched to what other countries in the world are doing. In
addition, any regulations must allow the use of American coal and
nuclear energy. His solution is based on the development of new
technologies. He suggested revising the current incentives for new
technologies to make lower emission power sources less expensive
relative to higher emission sources while taking into account U.S.
energy security, keeping the incentives technology neutral, and making
the incentives long-lasting. He appears to support additional
legislation to regulate greenhouse gases but stopped short of endorsing
a cap-and-trade program. Just how this speech and shifts in the
President’s positions on climate change legislation will impact the
debate on current legislation is unknown at this time. Congressman
Dingell suggested that the best way for the President to become
involved was to send “concrete legislative proposals” to Congress for
their consideration. While it is getting late into the session for the
passage of any major climate change legislation, it is still possible
should both the Democrats and the Republicans want it to happen.
During the comment period for the rule setting new source performance
standards (NSPS) for refineries, environmental groups urged EPA to
establish carbon dioxide standards for this category. When EPA released
the final signed rule on April 30, 2008, the Agency declined to include
standards for carbon dioxide. EPA based their decision on a lack of
modeling techniques and data to credibly quantify the impacts of
regulating greenhouse gas emissions from this source category. EPA also
cited the complexities of regulating greenhouse gases under the Clean
Air Act and the upcoming Advanced Notice of Proposed Rulemaking on the
whether the Agency should make an endangerment finding for carbon
dioxide as reasons for not imposing additional standards in this
rulemaking. This is the first NSPS ruling to be issued by EPA since the
Supreme Court ruled that the Agency had the authority to regulate
greenhouse gases.
The plaintiffs in the lawsuit where the Supreme Court ruled that carbon
dioxide could be regulated under the Clean Air Act filed a writ of
mandamus in the U.S. Court of Appeals for the District of Columbia
Circuit asking the court to force EPA to issue an endangerment finding
within 60 days. Normally, this type of filing would not be looked upon
favorably by the court so soon after the initial ruling. However, in
this case, the writ was prompted by a March 12, 2008, letter from EPA
to Congressman Waxman that indicted an endangerment decision had
already been made and the Federal
Register notice announcing that decision was sent to the OMB in
December 2007. To date, OMB has not taken any actions on the notice.
The writ is designed to force OMB to complete their review of the
notice and release it. A similar writ was filed in the U.S. District
Court for the Northern District of California (San Francisco Chapter of A. Phillip
Randolph Institute, et al. v. EPA, et al.) in September 2007. On
March 28, 2008, the court dismissed this request stating that it “is so
far afield from the notions of comity and propriety that it need not be
seriously considered.” The impact of the District Court ruling on how
the Appeals Court will respond is not known at this time.
Coskata, Inc. (www.coskata.com)
has announced a process to make ethanol
from practically any renewable source, including household garbage,
cellulose, and used tires. The process used gasification to produce a
syngas which is fed into a bioreactor. There, anaerobic bacteria
convert the CO and hydrogen into ethanol. Coskata claims that their
process generates 7.7 times more energy than is consumed (as compared
to corn to ethanol which has a 1.3 ratio). General Motors and Coskata
are developing a 40,000 gallon per year demonstration plant that is
scheduled for operations in the fourth quarter of 2008. The unique part
of this process appears to be the use of anaerobic bacteria to produce
the ethanol.
Finally, a couple of minor notes. First, in mid-April, ABC News
revealed that one of the shots of supposedly Antarctic ice shelves in An
Inconvenient Truth were actually computer generated
images from the
2004 science fiction movie The Day After Tomorrow. Second,
scientists
are predicting that parts of North America and Europe will cool over
the next decade due to shifting ocean currents. They stated that the
“natural climate variations could be stronger than the global warming
trend over the next 10-year period. Without knowing that, you might
erroneously think that there is no global warming going on.”
Apex Fire
On October 5, 2006, the Environmental Quality Company (EQ) hazardous
waste facility in Apex, NC experienced a fire. The fire was reported by
a citizen driving past the facility. There were no EQ personnel on site
at the time of the fire. Because of the unknown nature of the burning
chemicals and exploding drums, the Incident Commander chose to take
only defensive actions. These included ordering a precautionary
evacuation of the surrounding community, stopping rail traffic through
the community, and closing the air space over the facility. EQ hired an
industrial firefighting and environmental cleanup company to extinguish
the blaze and to clean up the site. The contractor built a sand berm to
minimize water runoff from the site, removed the roof, extinguished the
fire with foam, and removed all debris and hazardous waste from the
site.
The Chemical Safety and Hazard Investigation Board (CSB) was asked to
investigate the fire and to develop recommendations. The Board made the
following findings.
- The Apex site was not equipped with fire or smoke
detectors,
automated fire suppression equipment, or fire barriers. Fire protection
was provided by portable fire extinguishers on each side of the central
loading dock. While RCRA regulations require facilities to be equipped
with “fire control equipment,” there is no EPA guidance or industry
standards available to owners, permit writers, or local fire
departments (see 40 CFR 264.32).
- EQ had limited contact with the Apex Fire Department prior
to the
fire. EQ had not provided the Fire Department with written information
on types, quantities, and locations of hazardous materials prior to the
incident. Since the facility was unoccupied at the time of the
incident, there was no emergency coordinator to implement the
facility’s contingency plan or to assess the extent of the emergency.
RCRA regulations require companies to familiarize local authorities
with the facility, its layout, and its hazards. The regulations do not
explicitly state what information is to be shared, whether it is to be
written or oral, and when and if updates are necessary.
As a result, CSB made the following recommendations.
- Modify 40 CFR 264.37 to ensure the emergency response
planning
includes written information to state and local emergency response
personnel on types, approximate quantities, and locations of hazardous
materials within the facility. CSB pointed to the reporting
requirements in the Emergency Planning and Community Right-to-Know Act
as a model for this effort. In addition, CSB suggested that the
facility be required to periodically update the information.
- The
Environmental Technology Council should petition the National Fire
Protection Association to develop fire protection standards
specifically for TSDFs. This standard should address fire prevention,
detection, control and suppression requirements.
- Industry should
develop standardized guidance for the handling and storage of hazardous
waste to reduce the likelihood of releases and fires at TSDFs.
A copy of this report can be found at www.csb.gov/index.cfm.
CRWI Meeting
The next CRWI meeting will be held on May 12, 2008, in Montreal,
Canada, in conjunction with the IT3 conference. The major topic for
discussion will be EPA’s progress on final decisions on which standards
are to be redone. For more information, contact CRWI.
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