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Agency Advances "Midnight Rule" Deregulating Tons of Hazardous Waste

Companies can burn dangerous waste without complying with hazardous waste laws
December 12, 2008
Washington, DC —

The U.S. Environmental Protection Agency today signed off on a controversial 11th hour rule that exempts hazardous wastes burned for fuel from the strict oversight that generally applies to the storage, transport and burning of hazardous waste. Members of Congress and environmental groups had called on EPA to require further study and allow additional comment on the names and environmental records of the facilities that would handle and burn hazardous waste in their boilers under the new rule, but the agency refused and finalized the rule today.


"Everything about this rulemaking was flawed," said Ben Dunham, Associate Legislative Counsel for Earthjustice. "From the backroom industry request for the rollback, to the process that hid the identities of the facilities from affected communities and ignored data showing increased toxic emissions, to the logic that says 'if you can burn it, it's not a hazardous waste.'"


The agency justified the new rule by claiming that emissions from burning waste are not "likely" to differ from emissions from burning fossil fuels. But EPA offered no data to support that claim in their proposed rule, and admitted that some emissions could be higher.


"Many of these wastes are already being burned for fuel by licensed, trained, and closely regulated professionals in incinerators designed to eliminate toxic emissions," Dunham added. "This rule allows hazardous waste generators -- including many with terrible environmental records -- to simply throw their hazardous waste in the company boiler."


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% had been subject to corrective action under the Resource Conservation and Recovery Act (RCRA), 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.


Industry trade associations, including the National Association of Manufacturers and the American Chemistry Council, requested this rollback. This request was made public, and earmarked as a high priority of the Bush Administration, in a 2005 OMB report.


EPA's subsequent correspondence with the American Chemistry Council pointed to a close collaboration on the rulemaking.


This rulemaking comes on the heels of an October rulemaking that eased regulations on 1.5 million tons of hazardous waste in the so-called "definition of solid waste" rule.


Read more about the comparable fuels rule (PDF)

Contacts

Raviya Ismail, Earthjustice, (202) 667-4500, ext. 237 

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.