Without requiring any treatment or safeguards, the regulation excludes hazardous wastes that are gasified at petroleum refineries from the regulatory definition of "solid waste" under the Resource Conservation and Recovery Act (RCRA) if they are burned as fuel in a gasification unit. Enacted to guarantee a "cradle-to-grave" management system for hazardous waste, RCRA is the nation's best environmental protection against these harmful wastes.
"This is one of the biggest RCRA jailbreaks in the 32-year history of this environmental law," said Jane Williams, Chair of Sierra Club's Task Force on Air Toxics. "These wastes are still hazardous. Calling them 'fuel' doesn't make them safe."
The new rule allows excluded waste to escape all of RCRA's safeguards if it is destined for combustion in a gasification unit. This means it can be stored, transported and burned without meeting RCRA's stringent requirements for storing, transporting and burning hazardous waste. In particular, the gasification units that burn the exempted wastes will not have to meet the detailed requirements for hazardous waste combustion facilities. Further, the solid waste generated at the gasification units will be deemed non-hazardous unless proved otherwise — turning on its head RCRA's basic presumption that hazardous wastes remain hazardous unless proved otherwise. A list of some facilities proposing to burn this hazardous waste at refineries include:
- Shell Martinez Refinery in Martinez, California
- ExxonMobil Refinery in Baytown, Texas
- Motiva Enterprises, Delaware City, Delaware
- Motiva Star Enterprises Convent Refinery, Union, Louisiana
EPA also states that the two gasification facilities are currently being constructed in Carson, California and Lake Charles, Louisiana. According to EPA, gasification plants at refineries with the capability to burn hazardous wastes could be built at a rate of one plant every two years. The agency estimates that this would result in seven to nine plants by 2010 and as many as 17 plants by 2025.
Earthjustice, representing the Louisiana Environmental Action Network (LEAN) and Sierra Club, will file a lawsuit in federal court today challenging the rule, arguing that EPA violates RCRA, and that exempting of hazardous waste that is gasified and burned is unlawful.
"The EPA has thrown out all the requirements for running these facilities cleanly and safely," said Marylee Orr, executive director of Baton Rouge-based LEAN. "If this rule stands, EPA is allowing hundreds of thousands of tons of hazardous waste formerly monitored to simply fall off the radar. A rule of this type is essentially an attempt to disguise a huge public health liability as a simple recycling program."
Eliminating regulation of these materials — including how they are stored and transported and ultimately disposed — greatly increases the risk of potential harm from hazardous waste releases into our air and water. The strict standards on storage and transportation of these hazardous materials would no longer apply, and the public would lose access to any information on the dangerous wastes.
Furthermore, the toxicity of the emissions from the refineries that use the waste as fuel will increase from the gasification process, while the process itself will create its own waste. This waste will also likely be free from any hazardous waste regulations, including strict limits on its disposal and reuse.
Lastly, the EPA rule is likely to result in gasification of tens of thousands of tons of hazardous waste that are currently recycled for valuable metals. Recycling of spent refinery catalysts avoids the need for new mining for metals like vanadium. Such recycling prevents the creation of over a billion pounds of mining waste each year.
"EPA's implementation of this rule is in direct conflict with RCRA as well as with sound public policy," said attorney Lisa Evans of Earthjustice. "Creating a rule that allows material that is still hazardous waste to escape regulation when used as fuel is not what Congress intended when it enacted RCRA."