WASHINGTON — A federal appeals court ruling on Clean Air Act rules governing industrial boilers and incinerators could jeopardize the rubber recycling industry as a whole and tire-derived fuel in particular, according to industry experts.
The Environmental Protection Agency violated the plain intent of the Clean Air Act when it allowed industrial facilities that use alternative fuels such as TDF to be regulated under Section 112, which governs industrial boilers, instead of the more stringent Section 129 that governs hazardous waste incinerators, the U.S. Court of Appeals for the District of Columbia Circuit ruled June 8.
The appeals court vacated two EPA rules, the Boilers Rule and the Commercial and Industrial Solid Waste Incineration Definitions Rule, which allowed the less stringent emissions regulation of TDF and other alternative fuels. The agency must now promulgate new rules, and while this will take time — perhaps as long as two years, according to the Washington Post-some rubber industry experts are already on their guard.
"This not only affects TDF, but it will affect all aspects of tire recycling," said Michael Sorcher, president of MA Associates Inc., a major TDF marketer based in Overland Park, Kan. "Whenever there´s a major regulatory challenge, it affects the whole industry structure."
"There´s still a lot of confusion at this point, but this is a real concern for TDF markets," said Tracey Norberg, vice president of environmental and resource recovery and deputy general counsel at the Rubber Manufacturers Association. "It´s a very serious question as to how the EPA will ultimately define TDF in energy recovery."
All the parties stressed that nothing will happen to the TDF market immediately.
"Nothing changes right now or any time real soon," said Michel Benoit, executive director of the Cement Kiln Recycling Coalition. "It´s really that whole unknown factor of what defining TDF under (Section) 129 could bring that concerns us."
Cement kilns to be hit hard
Cement kilns stand to lose the most of any TDF-using sector, according to Benoit. The cement industry uses some 50 million to 60 million whole tires as alternative fuel annually, more than any other industry, he said.
Four environmental groups — the Natural Resources Defense Council, the Sierra Club, the Louisiana Environmental Action Network and the Environmental Integrity Project — filed suit with the appeals court in November 2004. The groups claimed that industrial facilities were incinerating used tires, plastics and other industrial and agricultural scrap and that the EPA was allowing them to define incinerators as industrial boilers under illegal interpretations of the Clean Air Act.
The court ruled straight down the line in favor of the environmental groups. The majority opinion by Judge Karen LeCraft Henderson stated flatly that the EPA´s arguments in favor of its interpretations were unpersuasive and unjustified under the law.
The statutory definition of "solid waste incineration unit" is "any facility which combusts any solid waste material from commercial or industrial establishments," Henderson wrote. The plain language negates the agency´s attempts to exempt incineration intended for thermal recovery, she said.
"In the rulemaking, EPA asserted its definition simply resolves an ambiguity created by the Congress´ failure to provide a statutory definition of ´commercial or industrial waste,´ " she wrote. "We have previously rejected just such an argument, stating unequivocally: ´There is no such rule of law.´ "
In both its Oct. 2, 2006, amicus brief for the EPA and its June 25, 2007, letter to the agency, the RMA remained adamant that it is always a grievous error to define TDF as solid waste.
"While the regulatory regime under Section 112 is robust, regulation under Section 129 imposes substantial additional administrative burdens on the owner or operator of a boiler," the RMA wrote. "Consequently, a facility regulated under Section 112 might be loath to consider using tire-derived fuels — even if it is a superior fuel — if doing so would potentially subject the facility to the additional administrative requirements of Section 129."
In its June 25 submission to the EPA, the RMA urged the agency to add language to the Resource Conservation and Recovery Act specifically exempting scrap tires from being defined as solid waste if they are used as TDF, in civil engineering, in ground rubber applications or for other beneficial purposes.
"This interpretation is consistent with the plain meaning of the RCRA regulations," the association wrote. "The explicit language proposed by RMA above is not only reasonable, but it is preferable from an environmental perspective as it considers the function of the material."
Environmentalists so far have been unimpressed by the tire industry´s arguments.
"I´ve seen no evidence to back up those apocryphal positions, but they will have the chance to make their case during the rulemaking," said John Walke, an attorney with the NRDC who helped argue the environmentalists´ case before the appeals court. "The EPA and the (tire) industry thought they could get away with it all, but they ended up getting away with none of it."
Supporters of TDF were not surprised by the NRDC response. "Clearly they have competing interests in this matter," Benoit said. "They are not responsive to the kinds of solutions that would alleviate this situation.
"It´ll wind down to a contest of some sort," Benoit said. "Fortunately, the EPA is sensitive to the problem. They´re proud of the progress they´ve made in scrap tire reuse, and they don´t want to lose that."
Meanwhile, Norberg said, there is the prospect of regulations by individual states covering Maximum Achievable Control Technology standards in industrial boilers. There is now no federal rule covering MACT, she said, and the plain language of Section 112 states that in the absence of federal standards, those standards must be promulgated on a case-by-case, facility-by-facility basis.
"This is a very cumbersome system," Norberg said. However, she said, she has not heard of any state moving as yet to establish such rules.
It´s the prospect of state MACT rules that provide the impetus for redefining scrap tires under RCRA as soon as possible, Benoit said. "There´s a lot of uncertainty in the states, and some state permits on the verge of renewal," he said.