EPA Abandons Rule Permitting Unregulated Hazardous Waste Burning

Environmental groups and communities cheer decision to enforce hazardous waste laws


James Pew, Earthjustice, (202) 667-4500, ext. 214
Marylee Orr, Louisiana Environmental Action Network (LEAN), (225) 928-1315
Neil Carman, Sierra Club, Clean Air Program Director, (512)-288-5772 or (512)-663-9594

The U.S. Environmental Protection Agency today withdrew a dangerous Bush-era exemption that allowed polluters to store, transport, and burn hazardous waste without meeting crucial public health and environmental protection requirements. EPA’s action means that more than 100,000 tons of hazardous waste will again be subject to federal hazardous waste protections.

“This is a great victory for Americans and their lungs,” said Earthjustice attorney James Pew. “Communities across the country, particularly those already burdened by toxic air, faced increases of hazardous air pollutants as a result of this dangerous rule. EPA Administrator Lisa Jackson’s withdrawal of this rule demonstrates a commitment to protecting public health that should have Americans breathing a little easier.”

The so-called Emissions Comparable Fuels exclusion shunted hazardous wastes that can be burned as fuel outside the definition of “solid waste.” This regulatory sleight-of-hand allowed facilities that store, transport, and burn these wastes to avoid the “cradle-to-grave” control requirements that Congress enacted to protect people from exposure to hazardous chemicals.

The Bush EPA issued the exclusion in December 2008 at the urging of chemical manufacturers and other industry groups. Earthjustice, representing the Sierra Club and the Louisiana Environmental Action Network, challenged the exclusion in court. While that case was pending, the Obama EPA reconsidered the rule, proposed in December 2009 to withdraw it, and today issued a final decision of withdrawal. According to EPA’s statement, the agency is withdrawing this rule “due to difficulty of ensuring that emissions from burning [Emissions Comparable Fuel] are comparable to emissions from burning fuel oil.”

Pew added: “Calling hazardous waste a ‘fuel’ doesn’t make it any less polluting when burned in incinerators and boilers across the country. Thankfully, today’s action means these materials will be regulated as what they are: ‘hazardous waste.'”

“We’re pleased that EPA has prioritized public health and refused to bow to the demands of industrial polluters,” said Marylee Orr, Executive Director for Louisiana Environmental Action Network (LEAN). “Citizens of the Gulf Coast, who are currently contending with the worst man-made environmental disaster of our time, could use some good news. This decision means our air will be much cleaner.”

“Many communities are suffering continually from toxic air pollution assaults, so this is great news from the EPA,” said Neil Carman of the Sierra Club. “The agency’s action provides much-needed relief to these impacted communities.”

The Emissions Comparable Fuel rule was one of the Bush administration’s “midnight rulemakings,” — last-minute favors to industry as his administration prepared to leave office. But as far back as 2005, industry pushed the Bush administration to move forward with this rollback. 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 (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.

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