A federal appeals court has thrown out the Gasification Exclusion Rule that exempted certain byproducts from the petroleum refining process from the hazardous waste regulations, holding that the plain language of the Resource Conservation and Recovery Act (RCRA) requires EPA to regulate the production, distribution, and use of hazardous waste-derived fuels. Gasification is the process of transforming certain refining byproducts into synthesis gas, or “syngas,” which can be burned as fuel.
The Gasification Exclusion Rule, in place since 2008, excluded from RCRA oversight those waste products that were reused by the refinery as fuel or syngas. EPA reasoned that such materials do not constitute waste because they are recycled as part of the petroleum production process, and thus never discarded.
In Sierra Club v. EPA, the Appeals Court disagreed with EPA’s reasoning, and held that the gasification exemption violated RCRA’s plain language requiring EPA to regulate the production, distribution, and use of hazardous waste-derived fuel. At issue in the case was whether the leftover refining products count as waste. EPA contended that because the materials were part of an ongoing process and not discarded, they did not meet the definition of waste, and thus an exemption was appropriate. As noted, the Court sided with Sierra Club holding that RCRA obliges EPA to regulated fuels derived from hazardous waste.
In a separate but related case NRDC v. EPA, the appeals court also tossed the “Comparable Fuels Exclusion” Rule that exempted certain materials from hazardous waste disposal rules if the material is: (1) used as fuel; and (2) its emissions levels are comparable to those produced by burning fossil fuels. In NRDC, the court used similar reasoning as in Sierra Club, holding that the plan language of RCRA required EPA to establish standards applicable to all duels derived from hazardous waste. Industry argued that the exemptions were important as they promoted recycling of materials that were still useful and that did not contain more hazardous content than other fuels that could be used at the facility. The appeals court disagreed.
Red-on-line EHS Legal Counsel
Sierra Club v. EPA, Case No. 08-1144, US Court of Appeals, District of Columbia, decided June 27, 2014 (http://www.cadc.uscourts.gov/internet/opinions.nsf/8810C7665141CE2185257D04004F86BC/%24file/08-1144.pdf)
Natural Resource Defense Council (NRDC) et al., v. EPA, Case No. 98-1379, US Court of Appeals, District of Columbia, decided June 27, 2014
Ellen Gilmer, Appeals Court tosses hazardous waste exemption for refineries, Energywire, June 30, 2014
Resource Conservation and Recovery Act of 1976
Hazardous Waste Identification and Listing, 40 CFR Part 261 (consolidated as of May 29, 2014)