24 ELR 10380 -- EPA Cancels Invitations to Its Own Program: The Agency's New Hazardous Waste Combustion Strategy

24 ELR 10380 | Environmental Law Reporter | copyright © 1994 | All rights reserved

EPA Cancels Invitations to Its Own Program: The Agency's New Hazardous Waste Combustion Strategy

Philip L. Comella

Mr. Comella is Of Counsel at Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Illinois. He received his J.D. from the National Law Center at George Washington University in 1983, and his B.A. from Beloit College in 1978.

[24 ELR 10380]

On May 18, 1993, Carol M. Browner, Administrator of the U.S. Environmental Protection Agency (EPA), announced a new federal hazardous waste policy.1 Noting that incinerators and industrial furnaces, i.e., cement kilns, annually burn almost five million tons of hazardous waste, Ms. Browner let it be known that EPA would soon change how things stood. In her announcement, she outlined a new strategy, based on increasing the incentives for waste reduction and slowing growth in the number of combustion units. EPA would encourage waste reduction, Ms. Browner said, through new waste minimization guidelines, and would discourage incineration by focusing Agency resources on permitting existing facilities and giving low priority to new permit applications. Furthermore, she said, EPA would use its existing authorities to incorporate more stringent emission controls for particulate matter and dioxin into new permits and require risk assessments and increased public involvement in the permitting process. In addition, Ms. Browner said she would convene a committee to evaluate the role of combustion in the federal hazardous waste strategy. "Treatment and disposal," EPA said in a follow-up notice, "are alternatives of last resort to waste minimization, not substitutes for it."2

Standing alone, Ms. Browner's announcement of a new federal hazardous waste policy appears sensible and decisive. Surely, waste reduction should be the top priority in a waste management strategy. Reducing waste generation at the source minimizes potential adverse environmental impacts, decreases a generator's future cleanup obligations, and lowers waste disposal costs. In addition, no one can reasonably argue that hazardous waste incineration or energy recovery should not be conducted in an environmentally protective manner, and only after public notice and comment on specific operating conditions.

Ms. Browner's statement, however, comes on the heels of over a decade of federal legislation and rulemaking that have favored, often explicitly, the incineration and thermal recovery of hundreds of hazardous wastes. Further, existing law does not allow EPA to dictate the contents of a generator's waste minimization plan. EPA's jurisdiction under the Resource Conservation and Recovery Act (RCRA)3 begins at the end of the pipe -- EPA's representatives cannot walk out on the production floor and tell a generatorhow to manage its processes. Ms. Browner's statement may signal a new hazardous waste strategy, but the new strategy conflicts with central parts of the existing strategy, which is the one written into federal law.

The purpose of this Dialogue is to put Ms. Browner's statement into context by comparing it with existing hazardous waste law. This Dialogue first discusses the respective roles of incineration, resource recovery, and waste minimization under RCRA. It briefly reviews incineration's role under the Superfund program4 and the Toxic Substances Control Act (TSCA),5 and then gives an overview of federal regulations controlling the operation of incinerators and industrial furnaces. Next, this Dialogue examines the legal effectiveness of using a policy statement to impose a capacity freeze on new combustion units and to insert new conditions into existing permits. This Dialogue concludes that, instead of using a press release to alter the hazardous waste management program, EPA should adopt the same approach used in constructing it: the rulemaking process.

The Role of Incineration in Hazardous Waste Law: An Overview

The Resource Conservation and Recovery Act

RCRA's title states its central objectives: resource conservation and recovery. The Act defines resource conservation as the "reduction of the amounts of solid waste that are generated, reduction of overall resource consumption, and utilization of recovered resources,"6 and defines resource [24 ELR 10381] recovery as the "recovery of material or energy from solid waste."7 From its inception, RCRA was intended to reduce waste generation and encourage resource recovery.8

In 1980, four years after RCRA's passage, EPA published the first set of hazardous waste regulations.9 EPA's initial regulatory program focused only on establishing a system for tracking the generation, transportation, and disposal of hazardous waste.10 The first regulations mandated neither treatment nor waste reduction, and encouraged recycling activities only indirectly.11

The Land Disposal Restrictions Program

In 1984, Congress found that its failure to require treatment or resource recovery had encouraged a less expensive option: direct land disposal. As Senator John H. Chaffee (R. R.I.) noted at the time, "Land disposal is extremely cheap when compared with the available alternatives such as incineration or physical or chemical-physical treatment."12 This inexpensive form of waste management, however, had a high environmental cost. Congress faced what the House Energy and Commerce Committee called a "growing body of evidence that land disposal of hazardous waste is not providing, and in some cases cannot provide, protection against ground water contamination and in many cases poses threats to public health and the environment."13

To limit reliance on land disposal, Congress, as part of the Hazardous and Solid Waste Amendments of 1984 (HSWA),14 directed EPA to set treatment standards for roughly 550 different hazardous wastes by five statutory deadlines, beginning November 8, 1986,15 and ending four and one-half years later.16 Congress told EPA to specify in the treatment standards, "those levels or methods of treatment, if any, which substantively reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized."17 EPA transformed this general mandate into the land disposal restrictions (LDR) program. In this program, EPA bases treatment standards on the best demonstrated available technology18 (BDAT). In general, under the LDR framework, EPA selects the technology best able to substantially treat hazardous constituents in a particular waste.19 The evaluation of whether "substantial treatment"20 occurs depends on the number and types of hazardous constituents treated, the concentration of constituents in treatment residuals, and the percent of constituents removed.21

As EPA began applying its BDAT methodology to the list of hazardous wastes, it found that incineration performed better than any competing technology for nearly all organic hazardous wastes. For example, in the first phase of the LDR program, covering the five listed spent solvents and seven listed dioxins, EPA based the treatment standard for all nonwastewater forms of these materials on incineration.22 EPA's selection of incineration as BDAT for these organic wastes conformed precisely to legislative intent. An amendment clarifying EPA's authority to set treatment standards stated that "[f]or wastes with a high organic content, incineration should be required in lieu of land disposal[.]"23

As the phases of the LDR program passed, the trend toward selecting incineration as BDAT for organic hazardous wastes continued. In the second phase of the program, EPA specified incineration for the only organic wastes it had to address: liquid hazardous wastes containing polychlorinated biphenyls (PCBs) in concentrations of over 50 parts per million (ppm), and hazardous wastes containing over 1,000 milligrams/kilograms (mg/kg) halogenated organic compounds.24 In the next phase, comprising the "first-third" of the remaining hazardous wastes, EPA selected incineration as BDAT for roughly two-thirds of the wastes for which it set treatment standards.25

By the time EPA implemented the final phase of the land disposal restrictions, it had based treatment standards for approximately 375 of the 550 different waste types either [24 ELR 10382] wholly or partly on incineration.26 For roughly 63 different hazardous wastes, either incineration or fuel substitution27 may be used; for an additional 112 hazardous wastes, only incineration may be used. Performance-based treatment requirements for the other 200 wastes are based on incineration, though any technology may be used to meet the standards.28 Therefore, under duly promulgated EPA regulations, roughly 70 percent of all nonwastewater29 hazardous wastes are subject to incineration-based treatment standards. This fact probably would not have surprised Congress. When Congress passed HSWA, which put the land disposal restrictions into place,30 the Senate Environment and Public Works Committee recognized that the "volumes of wastes that will be incinerated will increase significantly as a result of these bans" on disposal.31

Superfund

The Superfund program has similarly led to an emphasis on incineration of hazardous wastes, though it gives EPA somewhat more flexibility in selecting a treatment method than does RCRA. Largely because of § 121(b) and (d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),32 EPA has selected incineration as the treatment method for Superfund cleanups more often than any other technology.33 CERCLA § 121(d) requires any hazardous waste remaining on site, or shipped off site, to meet applicable LDR standards. Waste remaining on site also may have to meet standards EPA determines are relevant and appropriate, even if the standards are legally inapplicable. This approach means that any RCRA hazardous wastes identified at Superfund sites must meet applicable LDR standards, including those based on incineration, provided "placement" occurs.34 But for contaminated soils, which constitute a large proportion of all Superfund wastes, EPA has made the generic finding that incineration is an inappropriate technology, and, therefore, EPA will issue treatability variances for these materials on an expedited basis.35

CERCLA § 121(b)36 expresses a congressional preference for remedial actions that use treatment methods that "permanently and significantly reduce the volume, toxicity or mobility of hazardous substances."37 As two EPA research scientists recently wrote: "Of all the 'permanent' treatment technologies, properly designed incineration systems are capable of the highest overall degree of destruction and control for the broadest range of hazardous waste streams."38 And, as EPA noted when it issued the first rules regulating these combustion units, "[i]ncineration can often provide an optimum, permanent solution to hazardous waste management with minimal long-term ecological burden."39

Toxic Substances Control Act

TSCA's treatment regime is much simpler than RCRA's because TSCA regulates the disposal of only one hazardous substance -- PCBs. TSCA requires incineration of liquid PCBs in concentrations of 500 ppm or more.40 PCB liquids between 50 ppm and 500 ppm may be either incinerated or disposed of in a TSCA-permitted landfill. The Act allows either incineration or disposal in a chemical waste landfill of nonliquid PCBs at concentrations of 50 ppm or more in the form of contaminated solids, rags, or other debris.41 As in the LDR program, incineration sets the performance standard for the destruction of PCBs. If a treater wants to use an alternate technology, it must demonstrate equivalency to incineration.42

Summary

EPA's own regulatory program is primarily responsible for the wide use of incinerators to destroy hazardous wastes. Before EPA's implementation of the LDRs, combustion units burned only a small fraction of hazardous waste. As noted in HSWA's legislative history, the federal government's failure to mandate treatment caused hazardous waste to flow to the lowest cost disposal option -- landfills. Once EPA, in response to congressional instructions, based the selection of hazardous waste treatment standards on BDAT, it virtually assured incineration a paramount role in the RCRA program, because no demonstrated available technology destroys as many organic constituents as well as incineration.

Similarly, EPA's regulatory program also is responsible [24 ELR 10383] for the wide practice of burning hazardous waste for energy recovery in industrial furnaces. Cement kilns can destroy hazardous waste to a performance level comparable to incineration.43 EPA generally allows fuel substitution to be used for disposal of any hazardous waste subject to an incineration-based standard except wastes that contain halogens, sulfur, or nitrogen.44 Fuel substitution also furthers RCRA's underlying goals of resource conservation and recovery.45 Notably, the use of hazardous waste to supplement a cement kiln's fossil feed is one of the most successful forms of resource conservation and recovery practiced; it has been estimated that if operators of U.S. cement kilns supplemented 25 percent of their fossil fuel with hazardous waste, they would save about 3.8 million tons of coal or 14.4 million barrels of oil.46

The Role of Waste Minimization in RCRA

Waste minimization is not a new concept under RCRA. "Resource conservation" means in part the "reduction of the amounts of solid wastes that are generated."47 The problem lies not in the concept, but in the execution: Even though waste reduction may have been one of RCRA's main goals, the statute as enacted did not require it.

Waste reduction emerged as a priority when Congress amended RCRA in 1984 to make minimizing the "generation of hazardous waste" an express objective of the statute.48 The now familiar waste management hierarchy also made an early appearance in HSWA's legislative history. The House Energy and Commerce Committee listed the options for managing hazardous wastes in order of preference:

(1) waste reduction, such as process modification, end-product substitution, and materials recovery;

(2) properly conducted recycling and reuse;

(3) treatment; and

(4) land disposal.49

This hierarchy is now firmly established as part of the Pollution Prevention Act of 1990.50

But when it came to mandating -- as opposed to encouraging -- waste reduction, Congress pulled back from making generators' business decisions. HSWA only weakly promotes waste minimization. It requires generators to formulate waste minimization plans, but sets no goals or standards specifying how or to what extent generators must actually minimize waste. For example, under RCRA § 3002(b),51 any large quantity generator must certify on the manifest that must accompany hazardous waste destined for off-site treatment, storage, or disposal that the generator has a program to reduce the volume or quantity and toxicity of such waste to the degree it determines to be economically practicable. Similarly, RCRA § 3004(h)52 mandates that a permit issued to a generator who treats, stores, or disposes of hazardous waste on site must require the generator to certify that it has established a hazardous waste reduction program. RCRA § 3002(a)(6)53 further requires generators to report every other year on, among other things, their efforts to reduce the volume and toxicity of waste generated.54

RCRA's legislative history expresses Congress' intent in drafting these provisions:

These sections are designed to encourage generators to voluntarily reduce the quantity and toxicity of all waste. While these provisions encourage the reduction of hazardous waste generated, they are directed at the generators of such waste and do not authorize the EPA or any other person or organization to interfere with or intrude into the production process or production decisions of individual generators.55

When EPA issued its rules effecting the statutory provisions, it explained in the preamble that:

Thus from an enforcement perspective, the agency will be concerned primarily with compliance with the certification signature requirement.

Each generator subject to the waste minimization requirement should make a good faith effort to minimize the amount and toxicity of waste generated and to select a means of treatment, storage or disposal most likely to minimize the present and future threat to human health and the environment.56

Under RCRA, therefore, EPA may require a generator to certify that it has a waste minimization program and report on the quantity of waste reduced, but EPA has no authority to intrude into the production process and second-guess how a generator chooses to minimize its waste.

EPA's control over waste minimization is limited because its authority to regulate hazardous waste begins at the point where the waste is generated.57 In a leading case on EPA's jurisdiction under RCRA, the Agency attempted to assert jurisdiction over materials recycled or reused in a generator'songoing production process. The U.S. Court of Appeals [24 ELR 10384] for the D.C. Circuit held that EPA's RCRA jurisdiction begins at the point of discard, not before. As the court noted, materials in an ongoing production process are not part of the waste disposal problem, but rather "are destined for beneficial reuse or recycling in a continuous process by the generating industry."58 If EPA lacks authority to regulate hazardous materials generated within an ongoing production process, then it also must lack authority to control how a company designs the process, the raw materials it uses, production rates, operating hours, or any other operational or engineering decision that determines the quantity and characteristics of waste materials generated.

An Overview of EPA Regulation of Combustion Units

Boilers and Industrial Furnaces

In 1980, EPA decided not to regulate the burning of hazardous waste for energy recovery under RCRA.59 At the time, commenters apparently convinced EPA that subjecting boilers and industrial furnaces (BIFs) to full-fledged RCRA regulation would create an economic burden incommensurate with the risk of combusting high energy waste materials.60 EPA also lacked sufficient data on the energy recovery process.61

But four years later, concerned that unregulated facilities were burning millions of tons of hazardous wastes,62 Congress amended RCRA to bring energy recovery facilities under regulatory controls. As amended, RCRA § 3010(a)63 required facilities burning hazardous waste for energy recovery to notify EPA of their waste burning activities by February 8, 1986. RCRA § 3004(q)64 directed EPA to promulgate, by November 8, 1986, such regulations covering facilities that burn hazardous waste as fuel "as may be necessary to protect human health and the environment." EPA published the final rules under § 3004(q) on February 21, 1991, with an effective date of August 21, 1991.65 The rules establish controls on emissions of toxic metals, toxic organic compounds, hydrogen chloride, chlorine gas, and particulate matter from BIFs burning hazardous waste.

In the BIF program, EPA adopted a new approach for fully regulating existing hazardous waste management units. In other parts of the RCRA program, EPA had established generic and lax interim status controls to cover existing hazardous waste facilities until it issued them final permits.66 In contrast, the BIF rule imposes a detailed and stringent set of interim operating controls on BIF operators.67 The rule gives hazardous waste burning BIFs until August 21, 1991, to certify, using engineering judgment, compliance with specified emission standards. BIFs must comply with those standards for the following year,68 and by August 21, 1992, must use actual emissions testing to certify compliance with the emission standards.69 The rule requires BIFs to comply with the emission limits until EPA issues them final Part B permits.70

EPA emphasized the stringency of the new BIF standards in an Environmental Fact Sheet accompanying the final rules:

This regulation will impose stringent controls on the burning of hazardous waste which will bring more and more waste and more burners within RCRA control. It applies similar permitting procedures and virtually identical emission standards to boilers, industrial furnaces, and hazardous waste incinerators. Public health and the environment will be protected from emissions of these facilities whether hazardous waste is burned for the purpose of recycling -- energy or materials recovery -- or destruction.71

These are the same stringent standards that Ms. Browner criticized in her May 18, 1993, press release. They are also the standards that EPA defended when both industry and environmentalists challenged the BIF rule in Horsehead Resources Development Co. v. Browner.72 In this 1994 decision, the D.C. Circuit sided with EPA on all but one of the contested issues, including all issues dealing with the stringency of the rule.73

[24 ELR 10385]

Incinerators

EPA first regulated hazardous waste incinerators through a one-page set of regulations that merely required incinerators to achieve normal, steady state combustion conditions before operators introduced hazardous waste into the unit.74 Then, through a series of rulemakings in the early 1980s, EPA increased the scope and detail of the regulatory performance standards for incinerators. These standards, which remain in effect, require (1) a destruction removal efficiency of 99.99 percent for each principal organic hazardous constituent, (2) at least 99 percent removal of hydrogen chloride from the stack gas if the device produces hydrogen chloride stack emissions greater than four pounds per hour, and (3) the emission of less than .08 grams per day standard cubic feet of particulate matter, converted to .7 percent in the stack gas.75 EPA reserves the right to impose additional controls through the so-called omnibus clause.76

On April 27, 1990, EPA proposed to amend the hazardous waste incinerator regulations to improve emissions of toxic metals, hydrogen chloride, and residual organics.77 EPA withdrew the proposal two years later,78 apparently in part because the Office of Management and Budget believed the rule imposed an economic burden disproportionate to the incremental reduction in risk.79

The Incinerator Capacity Freeze

Incinerators and cement kilns burn a large quantity of hazardous waste because RCRA and EPA regulations say they should. But Ms. Browner indicated that these units are burning too much waste and gave notice of EPA's intended capacity freeze. She stated:

EPA will make its chief permitting priority over the next 18 months bringing already-operating hazardous waste incinerators and industrial furnaces under permit controls. This means that over the next 18 months we will give low priority to processing requests for new capacity. This will have the general effect of temporarily freezing capacity at existing levels.80

Ms. Browner stated that EPA will focus its efforts on permitting existing incinerators, not authorizing the construction of new ones. Existing hazardous waste incinerators fall into two categories: those that existed on November 19, 1980, and were qualified to operate under interim status, and those that began operating after that date.81 Federal law required all hazardous waste incinerators that were still operating under interim status as of November 8, 1984, to submit an application for a final permit to EPA by November 9, 1986. Those that did not were supposed to lose the ability to operate.82 EPA was to make final decisions on the permits by November 8, 1989.83 Consequently, under RCRA, EPA should have permitted all "already-operating hazardous waste incinerators" over four years ago; for EPA to delay processing new applications because it failed to meet a statutory deadline for permitting older units seems to punish the incineration industry for EPA's own footdragging. RCRA requires incinerators that first began operating after the interim status final deadline to obtain a "finally effective RCRA permit" before construction begins.84 Accordingly, these facilities must already have final permits and should not be the subject of Ms. Browner's comments.85

EPA's method of announcing the capacity freeze may raise problems under the Administrative Procedure Act (APA).86 RCRA regulations detail the required contents of permit applications for new incinerators87 and the procedures governing both EPA's review of the application and the public's right to notice and comment.88 For example, the regulations give EPA 60 days to review an application for completeness89 and require a 45-day comment period90 and 30 days' prior notice for a public hearing.91 Although the regulations impose no deadline by which EPA must act on the application, EPA seems to exceed its authority when it unilaterally decides to slow down permitting requests for new incinerators without formally amending its regulations.

Or sothe D.C. Circuit thought the first time EPA decided to stop issuing permits to incinerators. In Environmental Defense Fund v. Gorsuch,92 (EDF) the court held that EPA's decision to suspend unilaterally the issuance of permits for incinerators and surface impoundments constituted rulemaking subject to the notice-and-comment provisions of the APA.93 In EDF, EPA had published its decision to suspend permitting of new incinerators in the Federal Register. EPA announced the current capacity freeze in a press release. In both situations, EPA claimed the announcement was simply a policy statement and not binding on either the regulated community or itself.94 In EDF, the court [24 ELR 10386] looked beyond EPA's characterization of the announcement to its effect, and found that although the decision was not expressed as a "suspension of the regulations creating the standards, the effect was exactly that."95 The same may be said of Ms. Browner's May 18, 1993, announcement. Although the Agency may characterize it as a policy, it has contributed to at least two companies deciding to cancel plans to construct new incinerators.96

Policy or Law?

Considered under the APA, Ms. Browner's statement seems to exhibit features of both policy and binding substantive law. A policy statement does not "establish a binding norm" but "only announces what the agency seeks to establish as policy."97 "A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications."98 In contrast, a substantive (or legislative) rule, "grants rights, imposes obligations, or produce[s] other significant effects on private interests."99 Policies, in short, express an agency's future intentions and allow for discretion in decisionmaking, while rules bind an agency and the public.

EPA issued Ms. Browner's statement as a press release announcing the future course of Agency rulemaking in the areas of waste minimization and combustion unit regulation. In that sense it is a policy. On the other hand, the statement's language suggests EPA intends to bind the Agency and the public. Ms. Browner states that EPA:

is issuing guidelines for waste reduction programs that generators of hazardous waste must develop;

is giving low priority to processing requests for new capacity, which will have the general effect of temporarily freezing capacity at existing levels;

will be adding to new permits more stringent controls for particulate matter; and

will be requiring that new permits be preceded by a complete risk assessment and more timely public participation.100

The mandatory nature of Ms. Browner's language "suggests the rigor of a rule, not the pliancy of a policy."101 EPA clearly has the ability to announce the course of future rulemakings and perhaps that is its intention. But the assertive language of Ms. Browner's statement strongly suggests that EPA intends to implement her policy statements now, before it promulgates rules.

Ms. Browner's compulsory tone provoked the Cement Kiln Recycling Coalition (CKRC), an association of companies that burn hazardous waste as fuel, to file a petition for review in the D.C. Circuit on June 24, 1993, seeking to invalidate the policy as rulemaking conducted outside the APA.102 Arguing that "EPA's action is so clearly illegal that a full briefing and oral argument is unnecessary," the CKRC sought a "summary reversal"103 from the court. In response to CKRC's petition, EPA did what one might expect: It argued that Ms. Browner's statement was simply a nonbinding policy, not a rule subject to judicial review in the D.C. Circuit.104 Soon after, EPA took steps to lessen the binding tone of Ms. Browner's statement by emphasizing the discretionary and voluntary nature of pronouncements that she had strongly implied constituted legal requirements.105 Apparently satisfied with EPA's retractions, the CKRC filed a motion to stay the lawsuit for nine months.106

The Scope of EPA's Omnibus Authority

Ms. Browner's statement, which seems to mandate conduct, also suggests that EPA may overreach its authority under the so-called omnibus clause.107 Under that clause, EPA may require permit conditions beyond those the regulations require, if it finds them "necessary to protect human health and the environment."108 Ms. Browner stated that EPA will use its omnibus authority to add more stringent operating controls for dioxin and particulate matter to new permits. She also stated that EPA would require "complete risk assessments" and "better and more timely public participation" before issuing permits for new incinerators.109

The omnibus clause by definition authorizes additional permit conditions on a case-by-case basis only and is not a vehicle to impose standards of general applicability on the regulated community. In the BIF rule, EPA writes, "permit writers must justify in the administrative record supporting the permit any discussion based on omnibus authority."110 EPA's Environmental Appeals Board has regularly rejected omnibus conditions not supported in the permitting record before it.111

[24 ELR 10387]

Summary and Conclusion

Ms. Browner's May 18, 1993, statement seems at odds with her Agency's regulatory program in several important areas. The statement:

looks with disapproval on the use of incinerators to burn hazardous wastes, when EPA's own regulations require the use of incineration for more hazardous wastes than any other technology;

suggests a need to strengthen the regulation of incinerators even though EPA withdrew a rulemaking four years ago that would have done just that;

calls for strengthening operating controls on industrial furnaces at the same time EPA was arguing before the D.C. Circuit that existing standards protected human health and the environment;

discourages the use of cement kilns to burn hazardous wastes when that technology is one of the few that actually constitutes both "resource conservation" and "resource recovery"; and

announces a "capacity freeze" on permitting incinerators in the face of a D.C. Circuit Court ruling that such unilateral freezes are illegal.

EPA in effect seems to be canceling invitations to its own hazardous waste combustion program. The regulated community can only base a waste management infrastructure on the laws and the rules written in the Code of Federal Regulations. Complying with this program has been no simple chore. Permitting and constructing a hazardous waste incinerator can take five or more years and over $ 100 million.112 Equipping a cement kiln to burn hazardous waste as fuel, though not as expensive or time-consuming as building an incinerator (because the kiln is already in place), nonetheless entails a serious commitment to comply with the full panoply of RCRA requirements, including those concerning corrective action and closure. Entering the RCRA program also subjects the kiln to increased public scrutiny, which often may jeopardize the underlying cement making business.

Making waste minimization the top priority in a waste management strategy can hardly be criticized. But when viewed in context, EPA's use of a press release to promote this new strategy may do more harm than good. If EPA can dismantle through a press release a program that took 10 years of rulemaking to put into place, companies may be disinclined to base business decisions on future EPA rules. Also, by appearing to rely so heavily on the first step in the waste management hierarchy, EPA may be discouraging industry efforts to develop modern treatment and recycling technologies to manage properly -- and in full accordance with EPA's own regulations -- the waste remaining after waste minimization efforts end.

1. EPA Administrator Browner Announces New Hazardous Waste Combustion Strategy, EPA ENVTL. NEWS (EPA/530-F-93-011) May 13, 1993 [hereinafter Browner Statement] (on file with The Environmental Law Reporter).

2. 58 Fed. Reg. 31114, 31118 (May 28, 1993).

3. 42 U.S.C. §§ 6901-6991, ELR STAT. RCRA §§ 1001-11012.

4. "Superfund" is the common name for the hazardous substances cleanup program under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

5. 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-412.

6. 42 U.S.C. § 6903(21), ELR STAT. RCRA § 1004(21).

7. Id. § 6903(22), ELR STAT. RCRA § 1004(22).

8. Among Congress' findings at the time it passed RCRA was that the problem of waste disposal … have become a matter national in scope … and necessitate federal action through financial and technical assistance and leadership in the development, demonstration, and application of new and improved methods and processes to reduce the amount of waste and unsalvageable materials and provide for proper and economical solid waste disposal practices.

Id. § 6901(a)(4), ELR STAT. RCRA § 1001(a)(4). Among RCRA's objectives was "providing technical and financial assistance to State and local governments and interstate agencies for the development of solid waste management plans (including resource recovery and resource conservation systems)[.]" Id. § 6902(a)(1), ELR STAT. RCRA § 1001(a)(1).

9. See 45 Fed. Reg. 33066 (May 19, 1980).

10. Id.

11. EPA deferred regulating recycling activities. See id. at 33093.

12. 130 CONG. REC. S13818 (1984) (statement of Sen. Chaffee).

13. H.R. REP. NO. 198, 98th Cong., 2d Sess., pt. 1 (1983).

14. Pub. L. No. 98-616, 98 Stat. 3221 (1984).

15. 42 U.S.C. § 6924(e)(1), ELR STAT. RCRA § 3004(e)(1).

16. Id. § 6924(g)(6)(B), ELR STAT. RCRA § 3004(g)(6)(B).

17. Id. § 6924(m)(1), ELR STAT. RCRA § 3004(m)(1).

18. EPA originally planned to base treatment standards on risk, but in the final rule concluded that Congress intended the standards to be technology-based. See 51 Fed. Reg. 40572, 40578 (Nov. 7, 1986).

19. See id. at 40589.

20. In the original LDR rulemaking, EPA stated that:

[i]n order to be considered "available," a demonstrated treatment technology must "substantially diminish" the toxicity of the waste or "substantially reduce" the likelihood of migration of hazardous constituents from the waste in accordance with § 3004(m). By requiring that substantial treatment be achieved in order to set a treatment standard, the statute ensures that all wastes are adequately treated before being placed in or on the land, and that the Agency does not require a treatment method that provides little or no environmental benefit.

Id.

21. Id.

22. See id. at 40610, 40615.

23. 130 CONG. REC. S9150 (1984).

24. See 40 C.F.R. § 268.42(a)(1) & (2) (1993); 52 Fed. Reg. 25760, 25790 (July 10, 1987).

25. See 53 Fed. Reg. 31193, 31217 (Aug. 16, 1988). Because of shortfalls in nationwide incineration capacity, however, EPA issued two-year variances from the treatment requirements for all wastes having incineration-based treatment standards if the waste came in the form of contaminated soil or debris; for five of the wastes EPA issued a two-year variance regardless of the form. Id. at 31217, 31196-97 (1988).

26. See 40 C.F.R. §§ 268.41, 268.43 (1993).

27. Fuel substitution recovers energy from hazardous waste. See 55 Fed. Reg. 22520, 22543 (June 1, 1990). Because of their high energy value, these 63 wastes may substitute for fossil fuel in boilers or industrial furnaces. Id. Fuel substitution must be conducted in "units operated in accordance with applicable technical operating requirements." 40 C.F.R. § 268.42, tbl. 1 (1993).

28. Treatment standards under the LDR program are either performance-based or technology-specific. Performance-based standards allow any technology to be used to meet the standard, but the standard itself is based on BDAT. With technology-specific standards, the specified technology must be used. See 55 Fed. Reg. 22520, 22525-26 (June 1, 1990).

29. Incineration may generally be used for the liquid (or wastewater) forms of these wastes, but wastewater treatment technologies, such as carbon adsorption or chemical oxidation, are often more appropriate. See 40 C.F.R. § 268.42 (1993).

30. 42 U.S.C. § 6924(c)-(g), (m), ELR STAT. RCRA § 3004(c)-(g), (m).

31. S. REP. NO. 284, 98th Cong., 1st Sess. (1983).

32. 42 U.S.C. § 9621(b), (d), ELR STAT. CERCLA § 121(b), (d).

33. See U.S. EPA, ROD ANNUAL REPORT -- FY 1991 at 12 (1992).

34. EPA has concluded LDR standards must be met prior to the land disposal or "placement" of a hazardous waste. Generally, for placement to occur, a hazardous waste must be excavated and moved from one place, or "area of contamination" (AOC), to another. EPA's managers define the AOCs on a site-by-site basis. Moving hazardous wastes between different AOCs triggers the LDRs. In addition, excavating wastes and processing them in a treatment unit located within an AOC also activates the LDRs, even if the residuals are redeposited in the same AOC. See EPA Superfund LDR Guide No. 5, Determining When Land Disposal Restrictions (LDRs) Are Applicable to CERCLA Response Actions (July 1989).

35. See 58 Fed. Reg. 48092, 48132 (Sept. 14, 1993); 55 Fed.Reg. 8666, 8762 (Mar. 8, 1990); Superfund LDR Guide No. 6a (2d ed.) Obtaining a Soil and Debris Treatability Variance for Remedial Actions (Sept. 1990). EPA may grant a variance from an applicable LDR treatment standard if it determines that the standard is inappropriate for the waste. 40 C.F.R. § 268.44(a) (1993).

36. 42 U.S.C. § 9621(b), ELR STAT. CERCLA § 121(b).

37. Clyde R. Dempsey & E. Timothy Oppelt, Incineration of Hazardous Waste: A Critical Review Update, 43 AIR & WASTE 25 (1993).

38. Id.

39. 45 Fed. Reg. 33154, 33215 (May 19, 1980).

40. See 40 C.F.R. § 761.60(a) (1993).

41. See id. § 761.60(a)(4).

42. See id. § 761.70.

43. See 55 Fed. Reg. 22520, 22543 (June 1, 1990). In Horsehead Resources Dev. Co. v. Browner, 16 F.3d 1246, 1265, 24 ELR 20562, 20571 (D.C. Cir. 1994), the D.C. Circuit noted that one benefit of burning hazardous waste-derived fuel is that the "high temperatures (upwards of 2,500 degrees Fahrenheit) destroy the hazardous organic compounds contained in the waste."

44. See 55 Fed. Reg. 22520, 22611 (June 1, 1990).

45. The Horsehead court noted that another benefit of burning hazardous waste as fuel is "immediately obvious: It takes the place of scarce fossil fuels." Horsehead, 16 F.3d at 1265, 24 ELR at 20571.

46. See All Fired Up ENVTL. TOXICOLOGY INT'L 19-20 (1992).

47. 42 U.S.C. § 6903(21), ELR STAT. RCRA § 1004(21).

48. Senator Lautenberg, during the Senate debates, said: "The best solution to the hazardous waste crisis facing our country is the reduction and recycling of these wastes. But, for the foreseeable future, there will be a substantial amount of wastes that must be disposed of through other means that can harm the public and the environment." 130 CONG. REC. S13818 (1984).

49. H.R. REP. NO. 198, 98th Cong., 1st Sess. (1983).

50. 42 U.S.C. § 13101(b), ELR STAT. PPA § 13101(b).

51. Id. § 6922(b), ELR STAT. RCRA § 3002(b).

52. Id. § 6924(h), ELR STAT. RCRA § 3004(h).

53. Id. § 6922(a)(6), ELR STAT. RCRA § 3002(a)(6).

54. These statutory requirements are carried forward in three separate EPA regulations. In the appendix to 40 C.F.R. pt. 262 (1993) Uniform Hazardous Waste Manifest and Instructions, EPA revised the uniform hazardous waste manifest to include the generator's waste minimization certification; in § 262.41(a)(6), EPA modified the generator's biannual reporting obligations; and in 40 C.F.R. § 264.75(h), EPA codified the waste minimization reporting obligations for generators who dispose of waste on site. These provisions require generators to have a waste minimization program, however, they do not dictate the contents of that program.

55. S. REP. NO. 284, 98th Cong., 1st Sess., at 66 (1983).

56. 50 Fed. Reg. 28702, 28734 (July 15, 1985).

57. See Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 976 F.2d 2, 23 ELR 20024 (D.C. Cir. 1992).

58. American Mining Congress v. U.S. Environmental Protection Agency, 824 F.2d 1177, 1186, 17 ELR 21064, 21068 (D.C. Cir. 1990) (italics in original deleted).

59. 45 Fed. Reg. 33155, 33216 (May 19, 1980).

60. Id. The energy or heating value of a waste material is expressed in British thermal units (BTUs) per pound. EPA, using the BTU value of coal and wood as a benchmark, has determined that a waste material must possess at least 5,000 BTUs per pound to be burned for energy recovery. Burning waste with a BTU value below that level is considered destructive incineration, not energy recovery. See 48 Fed. Reg. 11157 (Mar. 16, 1983); 56 Fed. Reg. 7134, 7184 n.76 (Feb. 20, 1991); 50 Fed. Reg. 614, 630 (Jan. 4, 1985).

61. See E. Timothy Oppelt, Incineration of Hazardous Waste -- A Critical Review, 37 J. AIR POLLUTION CONTROL ASS'N 558, 560 (May 1987).

62. S. REP. NO. 284, 98th Cong., 1st Sess. (1983).

63. 42 U.S.C. § 6930(a), ELR STAT. RCRA § 3010(a).

64. Id. § 6924(q), ELR STAT. RCRA § 3004(q).

65. 56 Fed. Reg. 7134 (Feb. 20, 1991).

66. When EPA promulgated the original interim status regulations, it said that existing facilities eligible for interim status

should not be expected to meet all of the … Part 264 standards, because some of the specific requirements of these standards may be inappropriate for certain facilities and different requirements may be substituted when a permit issued using the variance provisions in the regulations.… In addition, some permittees may be allowed a reasonable period of time to come into compliance with certain of the general Section 3004 (i.e., Part 264) standards, as permitted by Section 3005(c) of RCRA. The Agency believes that decisions regarding certain standards and all individual compliance schedules should be made in the permit issuance process where there is full opportunity for public participation and for interaction between the Agency and the permit applicant.

45 Fed. Reg. 33154, 33158 (May 19, 1980).

67. See Dempsey & Oppelt, supra note 37, at 28.

68. 56 Fed. Reg. 7134, 7181 (Feb. 20, 1991); 40 C.F.R. § 266.103(b)(9) (1993).

69. 40 C.F.R. § 266.103(c) (1993).

70. Id. § 266.103(c)(1).

71. U.S. EPA, EPA OFFICE OF SOLID WASTE ENVIRONMENTAL FACT SHEET: HAZARDOUS WASTE BOILERS AND INDUSTRIAL FURNACES NOW UNDER STRICT RCRA REGULATION (Dec. 1990).

72. 16 F.3d 1246, 24 ELR 20562 (D.C. Cir. 1994).

73. Petitioners originally challenged 12 issues in the final BIF Rule. Of these, the parties settled nine before oral argument, leaving only three issues for the court to rule on. The court: (1) upheld EPA's method of regulating cement kiln dust derived from the coprocessing of hazardous wastes and normal raw materials; (2) upheld EPA's authority to regulate air emissions from burning mixtures of hazardous wastes and fossil fuels; and (3) remanded one of EPA's three methods ("Tier III") for determining a kiln's combustion efficiency because of inadequate notice and comment. Id. at 1251 n.1, 24 ELR at 20563 n.1.

74. 45 Fed. Reg. 33154, 33250 (May 19, 1980). At the time EPA first issued regulations governing the operation of hazardous waste incinerators, it noted that proposed technical standards

cannot be implemented during interim status. The time and costs of upgrading most existing facilities to comply with these standards would be considerable, and the designs would require EPA approval during the approval process. As a result, the Agency has developed a few operation requirements for incineration which can be implemented during the interim status period.

Id. at 33215.

75. 40 C.F.R. § 264.343 (1993).

76. See id. § 270.32(b)(2).

77. 55 Fed. Reg. 17862 (Apr. 27, 1990).

78. 57 Fed. Reg. 17246 (Apr. 27, 1992).

79. See letter from Jay Plager, Office of Management and Budget to William K. Reilly (Feb. 23, 1989) (on file with The Environmental Law Reporter).

80. Browner Statement supra note 1, at 1-2.

81. 42 U.S.C. § 6925(e), ELR STAT. RCRA § 6935(e).

82. Id. § 6925(c)(2)(C)(ii), ELR STAT. RCRA § 3005(c)(2)(C)(ii).

83. Id. § 6925(c)(2)(A)(ii), ELR STAT. RCRA § 3005(c)(2)(A)(ii).

84. 40 C.F.R. § 270.10(f) (1993).

85. With regard to BIFs, neither RCRA nor EPA regulations set a deadline for issuing final permits to these units, so the timetable by which EPA issues them permits is within its discretion, as Ms. Browner indicated. See 56 Fed. Reg. 7134, 7136 (Feb. 20, 1991).

86. 5 U.S.C. §§ 500-506, ELR STAT. APA §§ 500-506.

87. 40 C.F.R. §§ 270.14, 270.19 (1993).

88. See id. § 124.3-.17.

89. Id. § 124.3(c).

90. Id. § 124.10(b)(1).

91. Id. § 124.10(b)(2).

92. 713 F.2d 802, 13 ELR 20712 (D.C. Cir. 1983).

93. EDF v. Gorsuch, 713 F.2d at 804, 13 ELR at 20715.

94. EDF, 713 F.2d at 816, 13 ELR at 20720; ENVTL. POL'Y ALERT (BNA) at 12 (Aug. 18, 1993).

95. EDF, 713 F.2d at 818, 13 ELR at 20721.

96. See Company Withdraws Application to Build Incinerator, Cites EPA Review of Permits, ENV'T REP. (BNA) Sept. 17, 1993; Colorado Firm Abandons Applications to Build Waste Incinerator in Florida, ENV'T REP. (BNA) Oct. 22, 1993, at 1174.

97. Pacific Gas & Elec. Co. v. Federal Power Comm'n, 506 F.2d 33, 38 (D.C. Cir. 1974).

98. Id. at 38.

99. American Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987).

100. Browner Statement supra note 1.

101. McLouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317, 1320-21, 18 ELR 20473, 20475 (D.C. Cir. 1988) (court found that language in a guidance document stating EPA "will" use a certain groundwater model evidenced a binding rule).

102. See Cement Kiln Recycling Coalition v. U.S. Environmental Protection Agency, No. 93-1413 (D.C. Cir. petition for review filed June 24, 1993).

103. D.C. Circuit, Local Rule 7(i).

104. See DAILY ENV'T REP. (BNA) July 23, 1993, at A-3.

105. See EPA Says Standards in new Hazwaste Burning Policy Just Goals, ENVTL. POL'Y ALERT (BNA) Aug. 18, 1993, at 12; Draft EPA Guidance on Implementation of Guidance on Conducting Indirect Exposure Assessments for RCRA Hazardous Waste Combustors, Sept. 24, 1993, published in ENV'T REP. CURRENT DEV. (BNA) Oct. 1993, at 1154.

106. DAILY ENV'T REP. (BNA) Aug. 23, 1993, at A-1.

107. 40 C.F.R. § 270.32(b)(2) (1993).

108. Id.

109. Browner Statement supra note 1, at 2.

110. 56 Fed. Reg. 7134, 7145 n.8 (Feb. 20, 1991).

111. See, e.g., In re Amoco Oil Co., Mandan, North Dakota Refinery, Permittee RCRA Appeal No. 92-21 (Envtl. App. B. Nov. 23, 1993).

112. The new Waste Technologies Industries incinerator in East Liverpool, Ohio, reportedly cost $ 140 million to build. See Waste Industry Fears Gore WTI Decision Signals Tough Time Ahead for Incineration, 23 ENV'T REP. (BNA) No. 36, Jan. 1, 1993, at 2220.

24 ELR 10380 | Environmental Law Reporter | copyright © 1994 | All rights reserved