EPA Exempts Refineries From Hazardous Waste Control Requirements

The U.S. Environmental Protection Agency today tentatively denied a plea from citizens groups to reconsider a Bush-era loophole that allows petroleum refineries to burn more than 300,000 tons of hazardous waste every year without meeting the Resource Conservation and Recovery Act's (RCRA) protective standards for storing and transporting hazardous waste and without meeting the Clean Air Act's requirements for burning it.

Because hazardous waste has the potential to cause serious harm to public health if it is released into the environment, RCRA specifies protective "cradle-to-grave" requirements for storing, handling and disposing of it. Additionally, the Clean Air Act requires protective emission standards for the air pollution generated by facilities that burn hazardous waste.

The Bush administration created the loophole in 2008. Based on the Obama administration's stated commitment to protect public health and respect the law, Earthjustice petitioned the EPA on behalf of Sierra Club and the Louisiana Environmental Action Network and asked the agency to reconsider the loophole. But nearly two years after that request was made, the EPA has now proposed to reissue the Bush-era exemption word for word.

The loophole allows refineries to burn their hazardous wastes as fuel in incinerators that EPA euphemistically refers to as "gasification units." These units do not have to meet the protective Clean Air Act emission standards otherwise required for all facilities that burn hazardous wastes. As a result, the fenceline communities that are already overburdened by refineries' toxic pollution are also subjected to additional toxic emissions from the unregulated combustion of hazardous waste.

"Burning hazardous waste generates toxic pollution that is incredibly dangerous to those who breathe it," said Jane Williams of the Sierra Club. "Calling hazardous waste 'fuel' doesn't in any way change those toxic emissions, but it does mean that petroleum refineries don't have to comply with laws that were designed to protect people from such pollution. This is a favor to petroleum refiners, plain and simple, at the expense of communities who live near refineries."

"Communities in the Gulf region already suffer enough from refineries' toxic pollution," said Wilma Subra of the Louisiana Environmental Action Network. "The last thing we need is uncontrolled burning of their hazardous wastes."

Notwithstanding the text of RCRA, which makes clear that hazardous waste does not cease to be waste just because it is processed to produce a fuel, the loophole also allows refineries to avoid safe storage and transportation requirements under RCRA for the waste they plan to burn in gasification units.

"The EPA's decision to side with the Bush administration and polluting refineries is shocking," said Earthjustice's Khushi Desai. "The agency does not dispute that the exempted 300,000 tons of toxic material are, in fact, hazardous waste. And yet it is somehow willing to let refiners store and transport this harmful waste without taking safety measures that Congress enacted to protect people from just such a danger. It's unbelievable."

"This troubling decision could cause major environmental damage in California, which ranks third in the nation for refining capacity," said Denny Larson, Executive Director of Global Community Monitor, a group that works with refinery neighbors nationally. "This is extremely disappointing news coming from this EPA, which has promised so much."

"It's sad that the communities which need the most help, the most protection and the most attention from environmental agencies instead continue to shoulder an increasing burden on their health and quality of life," said Matthew Tejada, Executive Director of Air Alliance Houston. "The well-being of folks in areas like the Houston Ship Channel, which has a number of refineries, should be a priority for the EPA. This exemption must be eliminated."

"The EPA has a duty and an obligation, and that is to protect the health and well-being of people and the environment by upholding laws such as the Clean Air Act," said Hilton Kelley, Executive Director of Community In-power and Development, based in Port Arthur, TX. "This exemption does exactly the opposite. Children, the elderly, and other vulnerable members of our communities need the EPA to do everything that it can to protect those who have no other means of protection."

EPA will accept public comments on its tentative determination to deny the petition, 76 Fed. Reg. 5107 (January 28, 2011), until March 14, 2011.