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Activists and Industry Critical of EPA Definition of Solid Waste Rule

Date: August 13, 2010

Source: News Room

EPA is getting criticism from all sides for its proposed definition of non-hazardous solid waste that will determine which, when burned as fuel, will be subject to more stringent pollution control requirements. Environmentalists say the rule contains numerous "unlawful" regulatory exemptions for boilers and such that would exacerbate toxic air pollution impacting communities' health and welfare. Industry officials complain that the exemptions do not go far enough to include all types of biomass, and secondary materials, and scrap tires. These materials, they argue, "will become increasingly important to utilities as renewable energy standards are adopted by more states and possibly applied to all states as a result of federal mandates." State air officials meanwhile say EPA's proposal should give states, not industry, authority to determine whether facilities must follow the more stringent incinerator rule or the more relaxed boiler rule. Environmentalists, industry, statesand others are offering their views through formal comments on EPA's proposal to define non-hazardous waste under the Resource Conservation & Recovery Act (RCRA).

EPA developed the proposals following a 2007 D.C. Circuit ruling in Natural Resources Defense Council v. EPA that vacated and remanded the agency's air toxics rule for boilers because the agency had unlawfully excluded units that recovered energy from solid waste combustion from the incinerator rule, issued under the more-stringent section 129 of the Clean Air Act, and regulated them instead as boilers under section 112 of the law.

EPA's proposal exempts from the stringent incinerator rule "traditional fuels," which are fuels that have been historically managed as a valuable fuel product rather than a waste, including coal, oil, natural gas, petroleum coke, coal tar oil, refinery gas, synthetic fuel, and "clean" biomass that has not been altered through a chemical or production process. However, Earthjustice and Sierra Club argue that EPA may not define solid waste to exclude waste burned for energy and say the proposed exemptions are arbitrary and too vague. On the other hand a wide range of industry groups including the American Petroleum Institute (API), the Utility Air Regulatory Group (UARG), the Utility Solid Waste Activities Group (USWAG), and the American Forest & Paper Association (AF&PA), praised the exemptions through comment on the rules, while pushing for more.

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