Posted by: Lawyer Sanders | March 23, 2009

Kentucky environmental attorney Sanders says Emission Comparable Fuel Rule is challenged in DC appeals court.

Environmental groups filed suit against U.S. EPA in the U.S. Court of Appeals for the D.C. Circuit over a Bush-era rule that exempts some hazardous wastes burned as industrial boiler fuel from Resource Conservation and Recovery Act requirements. The Rule is the Comparable Fuel Exemption and EPA finalized the Rule on December 19, 2008. 


The new Rule created a class of RCRA-exempt wastes dubbed “emission-comparable fuel” (“ECF”) that can be burned in industrial boilers if the emissions are comparable to those from burning fuel oil.  The rule allows certain facilities to burn hazardous waste without a hazardous waste air permit.  Burning the hazardous waste substantially decreases the disposal of costs of such wastes for large facilities, such as oil refineries. 


I, for one, do not want to live downwind of a large facility burning hazardous waste as a fuel source for a boiler.  Moreover, I can think of no rational, reasonable facility which would be willing to burn hazardous waste as a fuel source for a boiler, if the company had to obtain and comply with a hazardous waste air permit.   That result tells you something.


EPA justified the Rule by stating that it has discretion to classify such material as a fuel product, and not as a waste.   Unlike the Bush-era EPA, I have grave doubts that this agency action will stand judicial review under the Clean Air Act and RCRA. 


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