EPA Drops Rule Allowing Hazardous Waste to be Burned as Fuel

The so-called Emissions Comparable Fuels rule took effect on the very last day of the Bush administration, January 20, 2009. It allowed industries to burn fuel that would otherwise be regulated as hazardous waste, but that generates emissions comparable to fuel oil.

The rule, requested by the National Association of Manufacturers and the American Chemistry Council, would have allowed more than 100,000 tons of hazardous waste to be burned without federal hazardous waste protections.

"This is a day for Americans to breathe a little easier," said attorney James Pew with the public interest law firm Earthjustice. "EPA Administrator Lisa Jackson withdrew this dangerous loophole that would have increased toxic air emissions in communities across the country."

"It's heartening to see an administration that is committed to taking action to protect public health," Pew said. "Communities most impacted by this repeal are often already overburdened with toxic pollution, and we applaud the EPA for taking the first step towards hopefully cleaning up some of the dirtiest air polluters."

The January 2009 ECF rule sought to remove regulatory costs by reclassifying certain manufacturing byproducts as non-wastes.

The EPA said today that the Bush rule has been criticized for allowing hazardous waste to evade the hazardous waste regulatory system, and for being difficult to administer. Industry members have criticized it because of the detailed and prescriptive conditions for reclassification, which they believe will limit the rule's use.

"Simply waving a regulatory wand will not change a dangerous, hazardous waste into something that can be safely burned in every incinerator and boiler across the country," Pew said.

Hazardous waste here is burned not by industry but at the Aragonite commercial incinerator in a remote area of Tooele County, Utah. (Photo courtesy Utah DEQ)

"Rather than setting emissions standards for toxic air pollutants to conform with available technological solutions or to protect the public health, the previous administration had proposed a giant loophole that would allow polluters to evade control requirements," said Marti Sinclair, who chairs the Sierra Club's Clean Air Team.

"Administrator Jackson is now moving us towards improved waste management and cleaner energy production, the best of both worlds," Sinclair said.

The Emissions Comparable Fuel rule was one of the Bush administration's last minute favors, but as early as 2005, industry had lobbied for such a rule.

In 2007, Earthjustice sent a Freedom of Information Act request to EPA asking for the names of the facilities that would be exempted from strict oversight of hazardous waste handling under the new rule. EPA responded with a list of 86 facilities spread across the country.

An Earthjustice analysis of the facilities revealed that nearly 90 percent had been subject to corrective action under the Resource Conservation and Recovery Act, indicating that they had mishandled hazardous waste in the past.

EPA admitted in a subsequent letter to Congress that 31 of the facilities have been in "significant non-compliance" with some aspect of RCRA hazardous waste regulations.

"EPA made the right and just decision by withdrawing this dangerous rule that would have increased toxic dumping in low-income and people of color communities - communities that already host a disproportionately large share of waste facilities," said Dr. Robert Bullard, director of the Environmental Justice Resource Center at Clark Atlanta University.

"This decision gives us hope that the EPA will use science and public health concerns to trump the politics of pollution," said Bullard, who has been called the father of the environmental justice movement for his work against toxic dumping in minority communities.

Today's proposed repeal of the Emissions Comparable Fuel rule presents the agency's concerns and requests public comment. After evaluating public comments, EPA will make a decision on whether to repeal the exclusion. Click here to read the withdrawal of this rule and submit a comment.

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