Burning Mad:

The Controversy Over Treatment of Hazardous Waste in Incinerators, Boilers, and Industrial Furnaces

by David B. Kopel

Originally published in Environmental Law Reporter, April 1993, vol. 23, pp. 10216-27. More by Kopel on hazardous waste and on air pollution.

Editors' Summary

This Article examines the burning of hazardous waste in incinerators, boilers, and industrial furnaces, as regulated by RCRA. After providing a background on the controversy and competing claims about the thermal destruction of hazardous waste, the Article describes how thermal destruction devices operate and why these devices pose regulatory difficulties. The Article then analyzes how EPA and the states regulate incinerators, boilers, and industrial furnaces. The author focuses in particular on the regulation of cement kilns that burn hazardous waste and permitting issues unique to incinerators, boilers, and industrial furnaces. The Article concludes that carefully regulated and permitted facilities pose a small health risk in comparison with the health risks posed by other common industrial processes.

The debate over incineration of hazardous waste has produced a lot of heat and smoke--but very little light. At times, the advocates and enemies of hazardous waste combustion are even describing different realities. The incineration industry assures the public that stringent government regulations require that 99.99 percent of the waste put into an incinerator be destroyed. Moreover, proponents consider incineration a necessary component of a rational program for managing America's hazardous wastes. On the other hand, opponents consider incineration the very incarnation of everything the movement for environmental justice opposes: giant waste oligopolies allied with government, both determined to force incineration on an unwilling public to promote the profitable but unnecessary production of hazardous waste. To make matters worse, say the opponents, the federal government's regulations relating to boilers and industrial furnaces (BIFs)[1] make the problem exponentially worse, by encouraging the burning of waste in unsuitable facilities such as cement kilns. Regulatory laxity will haunt America for generations to come, we are warned, because the federal BIF regulations will result in toxic waste contamination of much of America's new cement.

This Article sorts through the competing, and sometimes contradictory, claims about the thermal destruction of hazardous waste. The Article deals with the burning of hazardous waste in incinerators, boilers, and industrial furnaces. The Article focuses only on hazardous waste as defined by the federal Resource Conservation and Recovery Act (RCRA),[2] and not on the burning of municipal solid waste or hazardous wastes mixed with radioactive wastes (mixed waste). After providing a background to the development of the present controversy, the author offers an overview of how thermal destruction devices operate, and why these devices pose special regulatory difficulties. The Article then details the special approaches that the U.S. Environmental Protection Agency (EPA) and the states have taken toward dealing with incinerators and BIFs, with particular attention to the most controversial of all BIFs: cement kilns that burn hazardous waste. Following a summary of permitting issues unique to incinerators and BIFs, the Article concludes with an analysis of the policy issues that the burning controversy raises.

Background

Until RCRA was enacted in 1976,[3] there was little interest in burning hazardous waste. Since hazardous wastes could readily be disposed in landfills, and since no standards governed landfill quality, waste naturally flowed toward the cheapest disposal option. And, having flowed into a cheap landfill, the hazardous waste too often flowed out into nearby groundwater.

When EPA finally promulgated core RCRA regulations around 1980,[4] the costs of land disposal began to climb sharply. Hazardous waste had to be sent to an approved treatment, storage, or disposal (TSD) facility, and such facilities were required to maintain increasingly expensive systems to prevent release of their hazardous wastes into the environment.

In 1984, Congress enacted the Hazardous and Solid Waste Amendments (HSWA),[5] which amended RCRA to impose a near-total ban on land disposal of hazardous waste. Pursuant to the HSWA, EPA in the late 1980s and early 1990s promulgated the land disposal restrictions (land ban)[6] to bar land disposal--except under very restrictive conditions--of untreated hazardous waste that poses a potential threat of groundwater contamination.

Because land disposal is extremely expensive, other disposal options became increasingly attractive. The Federal Water Pollution Control Act[ 7] and the Clean Air Act,[8] both of which predate RCRA, had already foreclosed the possibility of disposing of large quantities of hazardous waste in the water or air. Hence, disposal of waste through burning became the most economical, and in some cases, the only option for a large class of hazardous wastes.

The concept of disposal through burning has generally been supported by environmental regulators. EPA encourages regulated burning as a treatment option, and considers incineration to be the best demonstrated available technology (BDAT) for most wastes. EPA's land ban regulations actually mandate that certain wastes may be treated only by incineration.[9]

The environmental community, which at first viewed waste-to-energy facilities as environmentally positive, has become increasingly skeptical of burning hazardous waste. Currently, almost any government regulation or permit allowing the burning of hazardous waste is met with vociferous opposition from at least one environmental or public interest group.

How Incinerators and BIFs Work

Hazardous wastes legally can be burned in one of three major types of thermal destruction devices: incinerators, boilers, and industrial furnaces.[10] This section of the Article first explains how these three devices work, provides a synopsis of their regulatory status, and then details the key problem that all three devices pose for regulators.

Incinerators

Whether a device is classified as an incinerator, a boiler, or an industrial furnace depends mainly on the purpose for which the device burns waste. An incinerator is a device that uses controlled flame combustion and is not a boiler or industrial furnace.[11] Broadly speaking, an incinerator is built for the purpose of treating waste thermally by reducing its volume or hazard, not for the purpose of using the waste's heat, or recovering usable matter from the waste. Most of the 18 commercial hazardous waste incinerators in the United States have been built within the last decade, in response to the demand created by the escalating costs of land disposal.[12] In addition to the 18 commercial incinerators, nearly 200 incinerators serve a more limited source, such as a single manufacturing facility.

Interestingly, the legislative history of RCRA indicates that Congress did not consider incineration to be "disposal"; accordingly, EPA regulates incineration under its authority to regulate "treatment" of hazardous waste.[13] Scientifically speaking, incineration really is treatment rather than disposal. Organic wastes fed into an incinerator are not destroyed, but rather are thermodynamically converted, through oxidation, to simpler forms. The mass at the start of the process is the same as the mass at the end. What changes is that larger molecules are rapidly oxidized and broken down into smaller molecules--mostly water and carbon dioxide. The heat resulting from incineration is the energy released which is no longer used to hold the larger molecules together.

Almost all states have incinerator regulations, similar to the federal regulations,[ 14] in their own hazardous waste programs. In April 1990, EPA proposed additional incinerator regulations, the main element of which was to place additional controls on particular types of incinerator emissions.[15] EPA has not announced plans to issue the draft 1990 incinerator regulations in final form. Currently, EPA applies the proposed 1990 regulations on a case-by-case basis during the permitting process.[16] Some states are moving to adopt the 1990 EPA proposals in their own incinerator regulations.

Boilers

A boiler is a device that uses combustion of fuels for the recovery of energy, almost always through the generation of steam.[17] The furnace in the basement of many homes is, by the regulatory definition, really a boiler. It combusts fuels to recover energy. While the huge varieties of boilers are subject to a multitude of regulations, this Article deals only with boilers that burn hazardous waste for fuel.

Industrial Furnaces

An industrial furnace is one of a number of listed "enclosed devices that are integral components of manufacturing processes and that use controlled thermal treatment to accomplish recovery of materials or energy."[18] EPA regulations list 12 types of industrial furnaces, including cement kilns; lime kilns; aggregate kilns; smelting, melting, and refining furnaces; and certain halogen acid furnaces.[19]

The BIF Rule

EPA's boiler regulations were promulgated on February 21, 1991, and became effective on August 21, 1991.[20] The boiler rules are co-extensive with the industrial furnace rules promulgated the same day. The rules are collectively called the "BIF rule."[21]

The BIF rule incorporates many of the existing rules applicable to incinerators, as well as EPA's proposed but unfinalized 1990 incinerator rules. Thus, formally speaking, the current BIF regulations are actually stricter than the current incinerator regulations.[22]

States that want to have an EPA-authorized program, so that primary enforcement regarding hazardous waste boilers and industrial furnaces is ceded to the state, must adopt BIF regulations by July 1, 1993, if no statutory change is needed for the regulations, or by July 1, 1994, if statutory authorization is needed.[ 23]

Before the effective date of EPA's BIF rule, about 925 boilers in the United States were burning hazardous waste fuels.[24] About 600 of them are exempt from most of the BIF rule because they qualify as "small quantity burners."[ 25] Of the 325 non-exempt boilers, about 200 are expected to stop burning hazardous waste because of increased cost attributable to the BIF rule. Thus, about 125 boilers will be operating under the BIF rule.[26] Additionally, some classes of industrial furnaces, particularly cement kilns, have been granted waivers from part of the BIF rule.

Status of Lawsuits

EPA expects that under BIF regulations, 3 percent of waste burned currently in BIFs will be diverted to other devices. The regulation is expected to cost the U.S. economy $15.2 million per year.[27] While EPA estimates that a $15 million negative short-term impact on the general economy from the BIF rule, the rule may have an equally large positive impact on the legal economy. A dozen chemical, mining, and manufacturing companies have filed suit against the BIF rule.[28] EPA promulgated a variety of technical amendments on August 16, 1991, to deal with some of the issues raised in the suit.[29] The Hazardous Waste Treatment Council has also filed suit, claiming that the BIF rule is insufficiently stringent and violates congressional intent expressed in the legislative history of the 1984 HSWA.[30]

The Basic Problem With Regulating Incinerators and BIFs

There are relatively few incinerators, boilers, and industrial furnaces in the United States. Yet, EPA's regulations for these devices are lengthy, and it has taken the Agency great time and effort to craft the regulations. The difficulty stems from the nature of the devices themselves. Incinerators are complex devices; even experienced government inspectors find them difficult to inspect properly. A full inspection may take five days.[ 31]

More importantly, no matter how much a thermal device is studied, it is impossible to know with certainty what is going on inside. The average temperature inside a thermal destruction device is generally at least 1,400[o]F, and temperatures sometimes exceed 3,000[o]F. Accordingly, it is too hot for a person to stand inside and watch what goes on. Likewise, standard monitoring devices have difficulty operating precisely. Since the inside of the device cannot be monitored effectively, regulators must rely on information gleaned from air emissions and other outputs, such as ash, to attempt to discern what happens inside the devices.

But relying on emissions is also difficult. Emissions monitoring is imprecise and costly. State-of-the-art commercial emissions monitors cannot continuously measure releases of the most toxic emissions, such as heavy metals and dioxins. Such releases are sampled only occasionally, and lab analysis is quite expensive. Continuous monitoring of toxic releases may become feasible in the middle-term future. The U.S. Department of Energy predicts Fourier transform infrared spectroscopy (FTIR) will be increasingly used commercially within the next several years.[32] This technology is capable of detecting emissions at the parts per billion level. In the more distant future, Cornell's Solid Waste Combustion Institute group foresees emissions monitors that are accurate at parts per trillion.

In practical terms, while very sophisticated monitoring may be feasible in the laboratory, continuous emissions monitoring for small quantities of toxic chemicals is only beginning to be made to work in the demanding environment of an emissions stack. As a result of the monitoring problems, thermal destruction device operators simply do not know what kind of air pollution they are creating with the degree of certainty demanded by the public.

At first impression, it appears that what goes out of a thermal destruction device is similar to what goes in. If the device is burning spent toluene, the most dangerous emission from the stack would be uncombusted spent toluene. But, the products that result from the burning of hazardous waste can be considerably more dangerous than the original wastes.

Since no burning device operates at 100 percent efficiency, some of the items end up only partially burned. These are called products of incomplete combustion (PICs). PICs are created when fragments of partially burned materials stabilize or recombine to form new chemicals. A simple type of PIC is carbon monoxide (CO); rather than being fully oxidized and acquiring two oxygen atoms to become carbon dioxide (CO2), the carbon atom acquires only a single oxygen atom to become CO.

Among the most dangerous PICs are dioxins, furans, polychlorinated biphenyls (PCBs), and other complex organochlorines, with dioxins and other halocarbons being the most dangerous.[33] One type of PIC is made from fragments of original input constituents which result from partial oxidation or simple substitution reactions. For example, the burning of PCBs produces hexachlorobenzene as a by-product. Another type of PIC is a reaction product, resulting from recombination. As recombinations, these PICs usually have a high molecular weight. Examples include naphthalene, fluoranthane, and pyrene. A third type of PIC is a simple fragment which is a universal by-product of combustion of organic compounds. As a simple fragment, this type of PIC is usually of lower molecular weight. Examples includes chloroform, carbon tetrachloride, trichloroethylene (TCE), tetrachloroethylene, benzene, phenol, toluene, and chlorobenzene.

Due to the primitive state of emissions monitoring, many facilities may not know exactly what PICs they are emitting. Only zero to 60 percent of unburned hydrocarbon (HC) emissions at any particular facility have been identified.[ 34] Some of these unidentified HC emissions may be toxic PICs.

Dioxins and other chlorinated PICs are often formed in cooler areas--such as in the air emissions stack, where the gas temperature may have cooled to about 450 degrees, or in the ash--rather than during the actual burning.[35] Hence, high temperatures in the burning process are not a complete protection against PICs. In fact, high temperatures and lots of oxygen--conditions associated with a high level of combustion efficiency--sometimes result in their own set of PICs.

Significant deviations from operating parameters are called "upsets," and PICs form at higher rates during upsets. Upsets are not at all uncommon, although without continuous monitoring it is difficult accurately to gauge their frequency. Some upsets may be just a minor deviation from numerical standards. For example, if the boiler is supposed to operate between 1,600 and 1,700 degrees, the temperature might drop to 1,580 degrees for a minute. Other upsets may be much more spectacular--and dangerous. A gas buildup in a furnace can spew pollutants 240 feet in the air, blow the furnace door off, and melt light sockets 30 feet away from the furnace. Upsets are best avoided through redundancy, so that if one component fails, there are backups.

In sum, it is impossible to tell exactly what is going on inside a thermal destruction device. It is impossible to tell what quantity and type of PICs are being formed, even though PICs may be the most dangerous pollutant emitted by the burning process. The lack of direct knowledge leads regulators to grab hold of a variety of surrogate indicators, in the hope that when enough surrogates are controlled, the burning process itself and its by-products will be brought under reasonable control. For example, technology currently exists which makes it easy to monitor CO output on a minute-by-minute basis. Yet, monitoring CO output is only an imperfect indicator of what is going on during the burning process. In addition, regulators attempt to assure that the key conditions for efficient combustion--time, temperature, and turbidity--exist. The particular regulations affecting incinerators and BIFs, especially the monitoring of surrogate indicators, is the topic of the next section.[36]

Legal Analysis

How exactly does the regulatory scheme control incinerators and BIFs? This section first summarizes the emissions controls applicable to thermal destruction devices. The section then examines several of the most controversial regulatory issues. Unless otherwise noted, the rules discussed apply to both incinerators and BIFs.

Destruction and Removal Efficiency: 99.99 Percent Pure?

When faced with community opposition, thermal device owners quickly point out that federal and state regulations require them to destroy 99.99 percent of the waste. The implication is that only a trivial amount of waste escapes the facility. Yet closer examination of the 99.99 percent figure shows that it is not nearly as comforting as it first sounds.

The 99.99 percent figure is the required destruction and removal efficiency (DRE).[ 37] If a facility accepts, for example, 10,000 pounds of spent toluene, 9,999 pounds must be destroyed during combustion--or more precisely, changed into simpler molecular forms, captured by the air pollution control devices, or incorporated into solid residues such as ash. Only one pound of the 10,000 pounds of waste input may be emitted into the environment through the facility's stack.[38]

For most wastes, the minimum DRE is 99.99 percent--"four nines."[39] Thermal devices which accept PCB or dioxin-bearing wastes must achieve 99.9999 percent--"six nines."[40] Unfortunately, current emissions equipment does not allow continuous monitoring of the actual DRE during operations. Instead, facilities applying for a permit must conduct a test burn demonstrating that under all potential burning conditions at the facility, the DRE is at least 99.99 percent.

Even the test burn is problematic, since it is impossible under current technology to monitor DRE for every component. To solve the problem, the test burn must monitor the destruction of several indicator chemicals that are unusually difficult to burn.[41] The indicator chemicals are called principal organic hazardous constituents (POHCs). Carbon tetrachloride or chlorobenzene are commonly chosen, since they have high "thermal stability"--that is, they are hard to combust. Unfortunately, one POHC's DRE may not necessarily be a good indicator for the burning of other wastes.

In addition, some scientists contend, the DRE estimates from the trial burn may be wildly overoptimistic.[42] Boilers are known to produce a "hysteresis effect," whereby the slow movement of POHCs and other emissions into the stack may continue for hours after the test burn is ended.[43] In the worst case, the hysteresis effect could cause underestimation of stack pollutant output by up to two orders of magnitude, although other scientists would say the effect is far smaller. Scientists also argue that the 99.99 percent DRE is based on making best-case assumptions in data interpretation, which may substantially overstate actual DRE.[44] Even if the errors were few and the DRE were still fairly high, at 99.00 percent, the result would be 100 times more emissions than assumed by the 99.99 percent DRE.

Another DRE problem is that, according to EPA-funded research, the proper DRE cannot be achieved for wastes that occur in low concentrations in the feedstock. The "six nines" cannot be met if the substance to be destroyed amounts to less than 10,000 parts per million. The "four nines" cannot be met if the substance amounts to less than 1,000 parts per million.[45] The problem for low-concentration wastes is most relevant for dioxins, furans, PCBs, sludges, contaminated solids, and wood-treatment waste.

Finally, even if a high DRE is achieved--the input wastes are almost entirely absent from smokestack output--new, more dangerous products may be formed during combustion. These PICs may be substantially more menacing than the original waste inputs.

Carbon Monoxide

Why do facilities monitor CO? Because they can. The technology for continuous CO monitoring is well-developed. And since CO is itself a product of incomplete combustion, CO should arguably be a good surrogate for formation of other, more dangerous PICs.

Critics charge that CO monitoring can reveal gross upsets, but does not reveal the production of PICs under optimal conditions. EPA counters that low CO levels have been demonstrated to indicate that PIC formation is low. The only degree to which CO is a poor surrogate, EPA believes, is that CO may set off false alarms; high CO levels are not always associated with high levels of PICs.[46]

Some environmentalists complain that CO continuous monitoring standards for BIFs are based on an hourly rolling average,[47] which understates small upsets and prevents automatic waste feed cutoffs from being triggered.[ 48] The automatic waste feed cutoff, which is mandatory at all BIFs and incinerators, requires that equipment be configured to automatically shut off waste input and burning whenever particular operating conditions are not met.[ 49]

The actual levels of permissible CO output are set up on a two-tier system. The two-tiered CO standard is intended to be flexible, because EPA aimed to avoid major economic impacts on the regulated community. Under tier I, a facility must monitor CO in flue gasses (stack gasses) and must not exceed a 100 parts per million by volume (ppm/v) limit on emissions.[50] Under tier II, the facility can exceed the 100 ppm/v on CO if the HC concentration in stack gas does not exceed 20 ppm/v.[51] The CO standards include a special, controversial exemption for certain BIFs.[ 52]

Metals

The most important metals of concern for thermal devices are arsenic, beryllium, cadmium, and chromium--which are all carcinogens,[53] and antimony, barium, lead, mercury, thallium, and silver--which are noncarcinogens. Metals are not destroyed or broken down into simpler molecules by combustion. Burning may, however, change the form of metal, as from an elemental form to a metallic oxide or an organometallic complex.[54] Or the metal could be changed from a solid state to a vaporous or fine-particle state. Some of the metallic oxides created by incineration are more toxic than the base metal that entered the incinerator. Similarly, the solid metals that enter the thermal device, if changed into metallic vapors, are lighter, more mobile, and hence more easily inhaled or ingested. Metals which are emitted from thermal devices are usually emitted as a particulate, sometimes as metallic vapors.[55]

While metals emissions are not feasibly monitored on a continuous basis, the regulations require periodic emissions testing.[56] Only the BIF regulations have specific metals standards. The draft April 1990 incinerator regulations have similar standards which, although they are not yet law, are usually put into effect by incinerator permit writers pursuant to the omnibus permitting authority.

The BIF metals standards use a three-tiered control system. The principle of the three-tiered system is that the more evidence a facility can provide demonstrating the safety of its emissions, the larger the allowable level. Under tier I, no emissions testing or site-specific dispersion modeling is needed. The assumption is made that 100 percent of input metals are emitted into the air. Then, using appendix I of the rule, the permit writer cross-references the metals input, which is also the assumed output, with the facility's stack height, nearby terrain, and nearby land use to arrive at a metals feed rate limit.[57]

Under tier II, the facility performs site-specific emissions testing, to demonstrate how many metals are captured before they exit through the stack. The facility determines how much of the metals go into ash; how much into the product--if there is a product, as at a cement kiln; and how much is captured by the air pollution control equipment. Then, knowing how many metals are emitted, the facility looks at the appendix I table to factor in stack height, terrain, and land use. Appendix I then supplies the allowable emission rate. If a facility has more than one stack, permissible rates are based on worst-case stack.[ 58]

Tier III requires a facility to do all the testing required for tier II, and to also conduct site-specific dispersion modeling and emissions testing to produce a risk assessment. For carcinogenic metals, the legally acceptable level is a lifetime cancer risk of less than 1/100,000 risk for the maximum exposed individual.[59] For the noncarcinogenic metals, there are specific reference air concentrations that cannot be exceeded.[60]

The flexible three-tier system allows a facility to use different tiers for different metals. Under tiers I and II, the emissions rates are based on the worst-case stack; under tier III, a facility can instead look at its stacks in aggregate.[61]

Some people have criticized the metals rules for dealing only with air emissions, and thus placing no limits on metals in ash or residues. But for all incinerators and BIFs other than cement kilns, ashes and residues have to be treated as hazardous waste anyway, since they are derived from hazardous waste.[62] Accordingly, the ashes and residues are subject to the normal panoply of strict hazardous waste controls.

Particulate Matter (PM)

The controls on particulate matter (PM) regulate the size of floating particles that a facility may emit. The basis of regulation is not that "dust" per se is highly dangerous. Rather, PM often adsorbs toxic organics and metals, and is thus a vector for travel of these dangerous materials.[63]

The legal PM standard allows particulate emissions of up to .08 grains per dry standard cubic foot (gr/dscf).[64] EPA had proposed a .03 gr/dscf standard for incinerators, but was overruled by the White House Office of Management and Budget. EPA headquarters ordered its regional office to implement the .03 standard anyway, by forcing facilities to agree to it as part of the permitting process.[ 65] Several states have adopted their own, stricter PM standards. Stringent PM standards are relatively easy for new facilities to meet, but may be very difficult at facilities that need to be retrofitted.

Hydrogen Chloride (Hcl) and Chlorine Gas (cl2)

Chlorine gas (cl2) results from insufficient hydrogen during the burn to react with the chlorine in the waste. Chlorine gas is controlled under a three-tier schedule similar to the one used for noncarcinogenic metals. Under tier I, the facility does not provide detailed information; the control system sets strict limits on feed rates.[66] Under tier II, the facility provides detailed information about how well its equipment prevents the escape for cl2.[67] For tier III, the facility also produces site-specific modeling to determine the risks of emissions from the facility.[ 68]

Unlike incinerators, BIFs are not required to employ technology-based emissions controls that achieve a 99 percent reduction in hydrogen chloride (Hcl) emissions in stack gas.[69] The rationales for the lesser standards on BIFs are that such reductions are not technically feasible at reasonable expense, that BIFs produce little chlorine anyway, and there is no showing that a 99 percent Hcl reduction is necessary to protect health.[70]

Interim Status

One of the most intensely controversial aspects of the BIF rule was EPA's generous interim status rules. Under interim status, which is a familiar RCRA concept, a facility which is newly subject to RCRA regulation is allowed to remain in operation, pending final review of its permit application.

During the interim status period, a facility must operate in conformity with most of the same legal standards that would apply to a facility granted a permit. During interim status, the only emission standard not applicable is the 99.99 percent DRE.[71]

Under the BIF rule approach to interim status, actual monitoring of compliance with the interim status standards is left largely to the facility. For example, a BIF must use engineering judgment to certify that emissions will likely not exceed emissions standards. By August 1991, BIFs wanting interim status were required to submit a certificate of precompliance, attesting that emissions of metals, Hcl, cl2, CO, and PM were likely within legal limits.[72] The facilities were also required to publish in a local newspaper of general circulation information including a facility description and the type and quantity of waste burned.[ 73] By August 1992, every facility was required to submit a certificate of compliance, detailing the results of a test burn demonstrating compliance with emissions standards.[74]

When the BIF interim status rules were announced, they provoked intense controversy, because they allowed BIFs to continue in operation for several years before regulatory agencies certified their safe operations. In practice, the long window provided by interim status is less significant than had originally been feared. Many states put their BIF permit applications on a fast review track. Faced with having to obtain and comply with a permit, rather than merely self-certifying that interim status standards are met, many industrial furnaces, particularly cement kilns, have stopped burning hazardous waste. In addition, EPA has denied interim status to several kilns, particularly those that began burning hazardous waste just before BIF regulations went into effect.

Small Quantity Burners

Just as RCRA's overall regulatory scheme imposes less stringent regulation on small quantity generators of hazardous waste, the BIF rule contains a special system for small quantity burners.[75] The exemption is based on specific authority in RCRA for EPA to exempt facilities that burn small quantities at the same facility where the waste is generated.[76]

To qualify for the small quantity burner exemption, the facility must make hazardous waste 1 percent or less of the total fuel burned.[77] The hazardous waste burned must have a heating value equivalent to low-grade coal (at least 5,000 btu/lb).[78] The heating value standard is designed to ensure that the waste is really burned for fuel, and not simply thrown in a boiler to avoid the expense of disposal. In addition, a high heating value is thought to promote combustion that will be efficient enough to achieve a high DRE of toxic organic constituents.

Unlike permitted facilities that emit metals or hydrogen chloride under tier III of BIF/incinerator regulations, small quantity burners are not allowed increased emissions based on favorable terrain. Instead, the small quantity burner regulations assume that the burner operates in the worst possible terrain--that which will promote air and water-borne movement of emissions toward vulnerable human populations. EPA reasons that because small quantity burners do not need permits, there would be no government oversight of operators' classification of terrain type.[79] And, since there will be no trial burn to verify that "the four nines" (99.99 percent) are met, the regulations assume that the small quantity burner will achieve only a 99 percent DRE.

The actual amount that may be burned per month depends on the small quantity burning unit's stack height.[80] The emission limits are based on avoiding lifetime cancer or mortality of risks more than 1 x 10[-5] for an individual living at ground level point of maximum exposure. Small quantity burners may not burn dioxins at all.

A small quantity burner must provide a one-time notice to EPA,[81] and must keep records demonstrating compliance with all applicable standards.[ 82]

Storage and Facility Operations

While BIFs treat large quantities of hazardous waste, the facilities also generally store the waste on the premises before it is burned. If a BIF has a hazardous waste storage unit, the unit must comply with the standard RCRA rules for hazardous waste storage.[ 83] At some BIFs, the hazardous waste to be burned may be loaded directly from a truck into the burning unit, with no interim storage. The BIF rule regulates transfer operations, and sets operating standards, including recordkeeping, leak detection, and remediation.[84] Significantly, the BIF rule does not require transfer operations to have special pre-feeding tanks to ensure that the hazardous waste fuel stays blended and nonstratified. Stratification may change burning conditions for the worse by reducing combustion efficiency. The risk is higher if the hazardous waste is a non-uniform "blend" of solvents and solids.

Permits

Obtaining a BIF or incinerator permit is generally similar to obtaining a permit for any other type of hazardous waste treatment, storage, or disposal facility. The main difference is that the BIF/incinerator permit proceeds along a defined four-step process.[ 85]

The first step in the permitting process for existing facilities is the pre-trial burn period. The period begins with introduction of hazardous waste into the unit. During the pre-trial burn period--the "shakedown period," the facility may burn hazardous waste for up to 720 hours to get the unit up to operational readiness for the trial burn.[86] New facilities do not have a pre-trial burn period, but commence directly with the trial burn phase.

In the trial burn, the facility must demonstrate that it can meet the 99.99 percent DRE and all emissions standards, under all potential operating variables.[87] A trial burn may cost $100,000 or more. Before a trial burn can begin at an existing facility, the facility must obtain a draft permit specifying trial burn conditions. The problem with a trial burn, of course, is that the facility's staff is probably operating with a high degree of care, but may not always so operate in the future. During the post-trial burn period, regulators and the facility analyze the trial burn results.[88] Lastly, the successful facility is granted a final permit, and begins operations in the final permit period.[89]

If a proposed new facility, rather than an existing facility, applies for a permit, construction cannot begin until a final permit has been issued. The final permit will specify trial burn conditions, and if the trial burn is successful, the facility will be allowed to commence operations. Permits will set allowable operating conditions based on reliably measured control parameters. The parameters will include, inter alia: operating temperature; permissible waste inputs (operators must conduct waste analysis throughout the permit period to insure that only authorized wastes are burned); waste feed rates; combustion chamber pressure; emissions standards; and conditions for activation of the automatic waste feed cutoff.[90] As long as the facility complies with its permit conditions, it is conclusively presumed that the facility complies with the legal emissions standards.[91]

Ed Kleppinger, a critic of cement kilns, suggests that any thermal destruction device should have the following requirements in its permit: mandatory use of the BDAT; round-the-clock inspectors; on-line stack gas readouts available to the community; stipulated penalties for violating operating parameters; automatic shutdown if the automatic alarms trip more than once a month, with the shutdown continuing until the problem is fixed; permits limited to no more than five years; permit renewal only upon proof of achievement of current BDAT; and community involvement paid for by the facility.[ 92] Some states have adopted some of the Kleppinger proposals in their own hazardous waste programs.

Cement Kilns

A type of BIF, cement kilns are large, inclined, rotating cylindrical industrial furnaces. They may be 10-15 feet in diameter and 400-760 feet long. In a cement kiln, raw materials--limestone, clay, sand, iron ore--are fed in at the upper, cooler end. Fuel--coal, oil, and/or hazardous waste--is fed into the lower, hot end.

In the interior of the kiln, the maximum temperature may reach 3,500[o]F, although 2,700[o]F would be more standard. At these very hot temperatures, the input materials change--specifically, the limestone calcines--and fuse into something called "clinker." The clinker--the kiln's product--leaves the kiln at the lower end, is cooled, ground with gypsum into a fine powder, and transported to ready-mix concrete makers. Clinker requires metals for compressive strength; hence, kilns find that incorporation of metals from hazardous waste into the clinker may improve its quality.[93] After the clinker has been turned into cement, the cement is mixed with aggregate, water, and other materials to make concrete. Cement is basically the glue which makes concrete.[94]

The amount of hazardous waste burning in kilns is rapidly increasing. Cement kilns currently burn 2 billion pounds per year of waste.[95] Of the 116 cement kilns in the United States, 40 burn hazardous waste. The number has increased by nearly 50 percent in the last few years. The amount of hazardous waste burned annually in cement kilns is the equivalent of 168 million gallons of oil, or 1 million tons of coal.[96] Opines one cement manufacturer, "It's possible that in the not-too-distant future, cement will just be a by-product of waste burning."[ 97]

Powerful economic incentives promote burning. Cement prices fell 40 percent in the 1980s, thanks in part to competition from South Korea and other nations.[ 98] Burning hazardous waste lets kilns be paid for accepting fuel, rather than having to pay for coal or oil. When kilns first began burning hazardous waste, they usually burned only "nurse" fuels--high British thermal units (Btu), relatively clean, liquid wastes. Now, nurse fuels are more and more burned on-site by their generator in a captive boiler or furnace. Cement kilns today burn large amounts of low Btu solids or sludges, which have been mixed with high Btu liquids. The hazardous waste fuel can include filter cartridges from dry cleaner plants or cleaning rags from automotive repair shops.[99]

While kilns operate at very high temperatures, extreme heat is not necessarily a virtue from an environmental viewpoint. Super-high temperatures are not necessary for proper combustion. Indeed, high temperatures can produce rapid combustion, exhaust available oxygen, and create pyrolysis conditions, which promote PIC formation. In addition, kilns are hot at the front end. Incinerators are hot at the other end, and are therefore better protected against upsets.

Although kilns do burn waste for longer periods than many incinerators do, the length of burning is not always important. The molecular reaction to be accomplished by burning takes place in microseconds. Good combustion also requires turbulence and oxygen--both of which are often deficient in kilns.[ 100] Cement kilns have pockets of oxygen-rich and oxygen-poor areas, caused by cyclones of combustion gasses. The oxygen-poor areas are where pyrolysis occurs.[101]

Perhaps the most important reason to be concerned about cement kilns burning hazardous waste is that they were not originally designed to do so. Almost all hazardous waste incinerators are less than five years old and are highly engineered; many kilns are much older, and date from an era when environmental concerns barely existed.[102]

Commercial incinerators represent a capital investment of over $100 million. The employees will be aware that a single misstep could cost the facility its hazardous waste permit, and them their jobs. Cement kiln employees, on the other hand, are primarily in the business of producing cement, and may not be as conscious of environmental standards. In addition, cement kilns are run with a much smaller staff (three to five on low shifts) than incinerators (10 to 15 on lowest shift).[103]

Hugh Kaufman, an engineer with EPA's Office of Solid Waste, charges that BIF regulations were specially tailored to the financial benefit of the cement kiln hazardous waste incineration industry. EPA, he writes,

appears to be engaged in a pattern and practice of accommodating the regulated cement kiln hazardous waste incineration industry with nonexistent, or at best loose, regulation. . . . As a direct result of the lack of the RCRA regulations, many sectors of the cement kiln industry have been transformed into major commercial hazardous waste disposal companies. The public and the environment have not been protected from the adverse consequence of these incineration activities.[104]

An example of the policy Kaufman complains about is BIF rule handling of CO standards. Some BIFs, such as cement kilns, cannot meet the 20 ppm/v CO standard under any circumstances; many cement kilns are not particularly efficient devices, and if they burn natural but dirty fuels such as coal, they may easily exceed the CO limit. In such case, the BIF rule allows the permit writer to establish alternate CO limits. To qualify for the alternate limit, a facility must conduct a risk assessment to show that cancer risk by inhalation for selected PICs is less than 1/100,000.[105]

While there is room for debate about whether the BIF rule does in fact treat cement kilns too leniently, there is no doubt that EPA made a deliberate policy decision to write a rule that would allow cement kilns to continue burning hazardous waste. EPA apparently believes that, since land disposal has essentially been closed off, it would be irresponsible for EPA to foreclose one of the few remaining disposal options.

Although there are many reasons to take overly optimistic claims about cement kilns with a grain of salt, it may well be that cement kilns are not nearly so dangerous as their critics assert. The Texas Air Control Board recently completed an 18-month study of the environment around Midlothian, Texas, the site of two waste-burning cement kilns.[106] From 1,000 samples taken, only one exceeded state health standards, and that standard involved nuisance odors rather than health effects; significantly, the Texas health standards are a degree of magnitude more stringent than federal standards.[107]

Toxic Cement?

When clinker is being produced in the cement kiln, organic compounds which are included in the fuel mix will, if everything goes right, be destroyed. In contrast, inorganics, such as metals, recombine with raw materials, and are incorporated into clinker. Is the incorporation of hazardous constituents into clinker--and hence into cement--a potential hazard?

Arguably, if hazardous waste-derived cement were used at a construction site, and the hazardous constituents in the cement became a health problem, every waste generator that shipped hazardous waste to the cement kiln would be a potentially responsible party under 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[108] Such liability, however, would more likely arise in the context of a contribution suit or other private cause of action, for EPA has never taken enforcement action against a generator that sent waste to a properly permitted BIF or incinerator.

Critics of "toxic cement" assert that the hazardous constituents in the cement may eventually leach out. The cement kiln industry responds by promising that hazardous waste in cement is like lead in crystal decanters, "chemically bonded in a highly-stable crystalline matrix."[109] Unfortunately, crystal decanters have now been found to leach low levels of lead into wine.

While there is potential for some leaching, Portland Cement Association analysis shows that hazardous waste cement has leaching characteristics similar to standard cement.[110] Both types of cement easily pass the toxicity characteristic leaching procedure test.[111] So does cement kiln dust.[112] In fact, EPA sometimes orders the use of cement stabilization as CERCLA treatment.

Opponents of cement kilns express concern that, since cement is a product, and not a waste, cement produced from kilns burning hazardous waste is subject to none of the hazardous waste regulations.[113] Cement kiln opponents favor laws like one that was recently proposed in the Texas legislature: waste-derived cement would be required to carry a warning that the product was made with hazardous or toxic waste, that the waste may leach out, that buyers use the cement at their own risk, and that they may be partly liable for resulting environmental contamination. And, some businesses and local governments are now refusing to buy cement from kilns that use hazardous waste.[ 114] Given that the scientific data show waste-derived cement to be no different from ordinary cement, it seems questionable whether warning labels should be mandated.

Cement Kiln Dust

Another highly contentious issue regarding cement kilns is the dust that results from clinker production. The absence of severe regulation of cement kiln dust is considered by kiln opponents to be one of the worst loopholes in the BIF rule.[ 115] From four to 12 million tons of cement kiln dust are produced every year in the United States.[ 116] The dust is often used as a neutralizer for coal mine effluent. The agriculture and construction industries are beginning to use it as a substitute for lime. Excess dust is sometimes dumped onsite by the cement kiln, a practice which has created several Superfund sites.[117] Cement kiln dust is considered to contain hazardous substances within the meaning of CERCLA.[ 118] As kilns burn more and more hazardous waste, the volume of dust will rise. An increase in chlorinated wastes burned in the clinker leads to a large, directly proportional increase in the volume of dust.[ 119]

Under the Bevill Amendment,[120] cement kiln dust may not be regulated as a hazardous waste unless EPA conducts a study showing it to merit such treatment. When the Bevill Amendment was enacted, cement kilns were not commonly burning hazardous waste. Accordingly, the Bevill Amendment should not apply to cement kiln dust derived from hazardous waste, some kiln critics argue.

EPA, however, interprets the Bevill Amendment more broadly, and allows cement kilns burning hazardous waste to, under some conditions, qualify for the Bevill exclusion. Kiln operators that wish dust to qualify for the Bevill exclusion, must show, on a facility-specific basis, that concentrations of toxics in the dust are not significantly higher than in normal cement kiln dust--dust from the kiln when it just burns coal or oil. Similar rules apply to any effort to have BIF residues classified as nonhazardous.[121]

If the facility can actually demonstrate that its waste-derived cement kiln dust is chemically similar to normal kiln dust, it would make little sense to apply stricter regulations to the waste-derived dust. Whether a waste is regulated as hazardous ought to depend primarily on the hazards posed by its particular chemical characteristics, rather than on its ancestry.

Policy Considerations

In assessing the risks posed by incinerators and BIFs, a comparative perspective is essential. Pro-industry commentators often criticize EPA's risk assessment for being implausibly cautious. For example, EPA calculates cancer risks based on the maximum exposed individual (MEI). The MEI is just the opposite of tort law's reasonably prudent person. The MEI scours his region for a nearby incinerator or BIF. Using sophisticated computer modeling, the MEI finds the exact spot where he will suffer the most exposure to emissions from the thermal device. Having found the most dangerous place possible, the MEI moves there, and stays there all day, every day, for 70 years.[122]

If this maximally erroneous idiot suffers at least a 1/100,000 extra lifetime cancer risk, EPA pronounces the BIF/incinerator emissions excessive, and orders them reduced. Are EPA's scientists as misguided as the self-destructive MEI? Not at all. While there are numerous health studies of particular hazardous wastes, there has been virtually no research regarding synergistic, multichemical effects.[123] When two toxins have a synergistic effect, they may interact to cause far more harm than the sum of their dangers. For example, cigarette smoking causes one quanta of risk (risk A), and occupational exposure to radon causes another quanta of risk (risk B). The cancer risk of smokers that have occupational exposure to radon far exceeds A+B. The synergistic effect of smoking and radon causes a danger that is much greater than the sum of its parts.

One reason that few synergistic studies have been done is that they are so expensive. The National Toxicology Program estimates that a 13-week, subchronic, single-species study of a mixture of 25 chemicals would cost $33 million.[ 124]

Although captive boilers may burn a single waste stream--such as solvents generated onsite, the pattern for the majority of incinerators and BIFs is to burn a wide and complex variety of hazardous wastes. Accordingly, the potential for synergistic effects could be high. And, since synergistic effects are essentially unknown, EPA attempts to compensate by taking a conservative approach to estimating single-waste risks.

Besides basing risk assessments on the hapless MEI, EPA makes a number of other conservative assumptions. EPA assumes that carcinogens have a linear slope effect from high to low dose.[125] In other words, if a 100-gram dose causes a 50 percent risk of cancer, a one-gram dose is assumed to cause a .5 percent risk of cancer. Assuming a slope effect is extremely conservative, since much research shows that substances that are toxic at a high dose may be harmless below a threshold dose. One reason may be that the human body is able to repair cells damaged by carcinogens, as long as the number of cells damaged remains low. At high doses, cells may be damaged faster than the body can repair or remove them, and the cancer may thus take hold and begin to spread.[126]

Moreover, many carcinogens have been so classified because they are associated with cancer at the maximum tolerated dose (MTD) in animal studies. The maximum tolerated dose is the largest dose which the laboratory animal can ingest without causing significant adverse effects other than cancer.[127] It is entirely possible that substances which are carcinogens at the MTD level may be harmless at lesser doses.[128] EPA also assumes that indoor air contains the same amount of pollutants as outdoor air. For noncarcinogenic health risks, it is assumed that the MEI already receives, through his other activities, a background exposure amounting to 75 percent of the reference dose. For example, if 10 grams of a chemical are harmful, the individual is assumed to have already ingested 7 1/2 grams from other sources. In addition, possible and probable carcinogens are evaluated as if they were known carcinogens.

Besides addressing the problem of unknown synergistic effects, EPA's strict, conservative human health standards also serve as a proxy for environmental protection. Since few standards exist for exposure of animals to pollution, except for the Clean Water Act aquatic life standards,[129] very strict protection of human health is used as a proxy for protection of animal health. Because animals usually have lower body weight than humans, and because they usually consume their food from a fairly small geographic region, it makes sense to assume that nothing less than strict human health protection could adequately protect animal health.[130]

The conservative EPA assumptions make sense not only because health effects of various chemical combinations are poorly understood, but also because it is difficult to determine with certainty exactly what an incinerator or BIF is actually emitting.

Taking into account the extremely conservative assumptions made by EPA in setting BIF and incinerator standards, the health risks posed by a properly operated thermal destruction device appear relatively small. The risks of emitting small quantities of waste into the air look particularly attractive compared to the disposal option that thermal devices have replaced: putting huge quantities of waste into landfills, which could eventually leak and contaminate groundwater.

Many scientists would suggest that a BIF or incinerator operating under a strict permit is no more dangerous than a facility commonly considered innocuous, such as a coal-burning cement kiln. And, while it is true that thermal destruction devices emit PICs, so do many other things, such as automobiles, fireplaces, and coal-burning utilities.

What makes PICs from incinerators or BIFs particularly hazardous, argue Greenpeace and other anti-incineration groups, is that they burn halogenated wastes--fossil fuels contain few halogens--and are hence more likely to produce particularly toxic PICs, such as chlorinated dioxins, furans, and PCBs. Even so, it may be that a tiny amount of incinerator dioxin is still much less of a health threat than a great deal of benzene, to which Americans are constantly exposed in large doses from normal industrial processes, or vast quantities of unburned hydrocarbons--which result from auto emissions.

Moreover, most thermal device PICs are methane or TCE, or some other PIC common to industrial emissions. Because combustion has broken complex molecules into simpler forms, most PICs tend to be simple organic compounds. For the more dangerous PICs, such as dioxins, emission levels are very low.

Even if hazardous waste did not exist, cement kilns and other BIFs would continue to operate. They would presumably return to burning fossil fuels rather than hazardous waste. Yet coal, while "natural," is far from environmentally benign. Coal can contain naturally occurring radioactive material, hazardous constituents such as benzene, and polynuclear aromatic hydrocarbons--semi-volatile organic compounds similar to some of the carcinogens in cigarette smoke. Thus, a properly permitted cement kiln burning hazardous waste--which will be subject to strict government oversight--may well be safer than a cement kiln burning coal, which is subject to very little regulation. A hazardous waste incinerator, even one that occasionally makes minor deviations from its permit standards, is a much healthier neighbor than a petrochemical refinery.

In sum, while it is understandable that most people want incinerators and BIFs to be carefully regulated, the facilities pose a very small health risk if forced to operate within strict permit limits, particularly when compared with the risks posed by other, more common, industrial processes.

Some thermal device critics argue, however, that the size of the risk is irrelevant. Their theory is that it is immoral to subject anyone to an involuntary risk, no matter how slight. Thus, that hazardous waste generation is related to the creation of jobs does not justify the infliction of BIF/incineration risks, even if risks are less than 10[-9], on the persons in the distant community where disposal takes place.

While the argument about involuntary risk has an appealing moral simplicity, it is wrong. Everyone inflicts involuntary risks on people all the time. As one scholar observes, under a rule forbidding any imposition of involuntary risk, to fly an airplane would require the permission of all those living below the route, and to light a fire might require consent of the entire community.[ 131]

The core of the attack on incinerators and BIFs is, at its heart, not an attack on the safety of the facilities themselves. Just as the spotted owl controversy is really about preserving old growth forests rather than about owls,[132] and just as the disposable diaper controversy is really about America's "throwaway" society rather than about landfill space, the core of the attack on incinerators and BIFs is the perception that they discourage source reduction, even though thermal treatment is expensive. Further, some environmentalists argue that society should eliminate all generation of hazardous waste. Any process, such as thermal treatment, that facilitates waste disposal is seen as impeding the proper goal of abolishing all hazardous waste generation.

The validity of the critique of incinerators and BIFs, therefore, depends on the assumption that source reduction is a goal in itself. While EPA and most of the environmental community have made this assumption to varying degrees, critics argue that mandated source reduction is economically inefficient at best, and environmentally dangerous at worst.[133]

The pros and cons of source reduction are outside the scope of this Article. But, unless it is determined that choking off hazardous waste treatment options is a desirable goal, it is reasonable to conclude that strictly regulated and supervised incinerators, boilers, and industrial furnaces have a legitimate role to play in managing America's hazardous waste.


Formerly, an assistant attorney general in the Hazardous Waste Unit of Colorado Attorney General's office, Mr. Kopel is research director of the Independence Institute, a free-market think tank in Golden, Colorado. He graduated with high honors in history from Brown University, and magna cum laude from the University of Michigan Law School. The views expressed in this Article are the author's alone, and are not intended to represent the views of the state of Colorado.


Notes

1. 40 C.F.R. 266.100-.112 & apps. I-X.
2. 42 U.S.C. 6901-6992k, ELR Stat. RCRA 001-050. For a good overview of the definition of hazardous waste, see Donald W. Stever, Law of Chemical Regulation and Hazardous Waste (1988). Hazardous waste is legally defined at RCRA 1004(5); 42 U.S.C. 6903(5); ELR Stat. RCRA 005; and 40 C.F.R. pt. 261 (1992).
3. 42 U.S.C. 6901-6992k, ELR Stat. RCRA 001-050.
4. See generally Randolph L. Hill, An Overview of RCRA: The "Mind-Numbing" Provisions of the Most Complicated Environmental Statute, 21 ELR 10254, 10255 & nn. 8-11 (May 1991).
5. Pub. L. No. 98-616, 98 Stat. 3221.
6. 40 C.F.R. pt. 268 (1992). See Hill, supra note 4, at 10268-69.
7. 33 U.S.C. 1251-1387, ELR Stat. FWPCA 001-071.
8. 42 U.S.C. 7401-7671q, ELR Stat. CAA 1-186.
9. 40 C.F.R. 268.42.
10. Burning may also sometimes be allowed in a "miscellaneous unit" regulated under 40 C.F.R. 264.600-264.603.
11. Id. 260.10. Sludge dryers and carbon regeneration units are also excluded from the definition of "incinerator."
12. See Concerns Mount Over Operating Methods of Plants That Incinerate Toxic Waste, Wall St. J., Mar. 20, 1992, at B1.
13. See 46 Fed. Reg. 7672 (1981). "Disposal" is defined at RCRA 1004(3), 42 U.S.C. 6903(3), ELR Stat. RCRA 005; 40 C.F.R. 260.10. "Treatment" is defined at RCRA 1004(34), 42 U.S.C. 6904(34), ELR Stat. RCRA 005; 40 C.F.R. 260.10.
14. 40 C.F.R. 264.340-.351. For earlier versions of the incinerator regulations see 50 Fed. Reg. 49203 (1985); id. at 665; 48 Fed. Reg. 14295 (1983); 47 Fed. Reg. 27520 (1982); 46 Fed. Reg. 7666 (1981); 43 Fed. Reg. 58946, 59003 (1978) (proposed standards for hazardous waste treatment facilities, including incinerators). Additional incinerator regulations can be found at 40 C.F.R. 265.352 (interim status) and id. pt. 270 (permitting).
15. 55 Fed. Reg. 17862 (1990).
16. EPA's authority to impose additional requirements on permits is granted by RCRA 3005(c)(3), 42 U.S.C. 6925(c)(3), ELR Stat. RCRA 017 (permits issued under this section shall contain such terms and conditions as the Administrator or the state determines necessary to protect human health and the environment).
17. 40 C.F.R. 260.10.
18. Id.
19. Id.
20. Id. 266.100-.112 & apps. I-X (1992).
21. Id.
22. Compare BIF regulations, supra note 20 with incinerator regulations, supra note 14.
23. 56 Fed. Reg. 7134, 7204 (1991). A few provisions of the rule, which were not enacted pursuant to EPA's HSWA authority, had different dates for state adoption. Id.
24. Id. at 7138.
25. 40 C.F.R. 266.108. The small quantity burners account for less than one percent of total boiler and industrial furnace burns.
26. 56 Fed. Reg. at 7204.
27. Id. at 7205.
28. Horsehead Dev. Corp. v. EPA, No. 91-1221 (D.C. Cir. May 14, 1991).
29. 56 Fed. Reg. at 42504.
30. Horsehead Dev. Corp., No. 91-1221 (D.C. Cir. May 14, 1991). Among the issues raised in the suit are claims that certain technical standards lack a valid scientific basis, that an exemption granted to metal smelters is improper, and the limited exemption for cement kiln dust is illegal. The first round of briefs were filed in January 1993.
31. See generally Office of Solid Waste and Emergency Response, U.S. EPA, No. 9938.2A, RCRA Inspection Manual (Mar. 1988).
32. See Developers Race Toward Complete Smokestack Gas Analysis Monitors, Env't Today, Nov./Dec. 1991, at 10-11; see also Distant Look at Pollution, Civil Eng'g, May 1992, at 13.
33. A halocarbon is a molecule with at least one carbon atom bonded to a halogen. Examples include PCBs, chlorofluorocarbons (which are not dangerous, except to the ozone), DDT, hexachlorobenzene, polychlorinated dibenzodioxins (PCDDs), polychlorinated dibenzofurans (PCDFs), mirex, chlordane, and heptachlor.

Some scientists argue that the human health risk of dioxin has been vastly overstated. For a brief treatment of the issue written for a generalist audience, see Dixie Lee Ray & Lou Guzzo, Trashing the Planet 88-91 (1990). It should be noted that EPA does not appear to agree that dioxin is less dangerous than previously thought. On January 17, 1992, EPA's staff made a presentation about recent studies on dioxins to Administrator William Reilly. Transparencies 17 and 18 stated:

Cancer may not be the most sensitive toxic response resulting from dioxin exposure. Immunotoxicity and reproductive effects appear to occur in body burdens that are approximately 100 times lower than those associated with cancer. . . . Current exposure levels to dioxins and related compounds appear to place people at or near the body burden when sensitive responses may occur, especially for subpopulations at high-end exposure, e.g., nursing infants, recreational and subsistence anglers.

See Waste Wars: The Army Opens a New Front, Rachel's Hazardous Waste News, Apr. 29, 1992, at 2.
34. 55 Fed. Reg. 17862. This statistic is commonly misstated by incineration opponents to claim that only one to 60 percent of total emissions of all types have been identified.
35. Telephone Interview with Edward W. Kleppinger, President, EWK Consultants (Feb. 10, 1993). For a discussion of air pollution control in the context of incineration, see Kroll & Williamson, Application of Dry Flue Gas Scrubbing to Hazardous Waste Incineration, 36 J. of Air Pollution Control Ass'n 1258 (1986).
36. For a good overview of current emissions monitoring technology, see Joseph Santoleri, Waste Incineration Systems: Permits, Design, and Operation, Envtl. Permitting, Winter 1991/92, at 49-57.
37. 40 C.F.R. 264.343(a)(1) (incinerators); id. 266.104(a)(1) (BIFs).
38. Id. 264.343(a)(1) (incinerators); id. 266.104(a)(1) (BIFs); 46 Fed. Reg. 7674 (1981). A high DRE does not, therefore, mean that the waste has been "destroyed," but only that hardly any of it is emitted from the stack. The DRE objective replaced a "destruction efficiency" standard in a draft regulation. Id.
39. 40 C.F.R. 264.343(a)(1) (incinerators); id. 266.104(a)(1) (BIFs).
40. Id. 264.343(a)(2) (incinerators); id. 266.104(a)(3) (BIFs).
41. Id. 270.62 (incinerators); id. 266.104(a)(2) (BIFs).
42. Pat Costner & Joe Thornton, Playing With Fire: Hazardous Waste Incineration 12 (1990).
43. Id. at 12.
44. Id. at 11-12 (discussing J. Welch & V.F. Baston, Propagation of Error in the Analysis of the Performance of an Incinerator (1986)).
45. J. Kramlich et al., No. EPA/600/2-89/048, Experimental Investigation of Critical Fundamental Issues in Hazardous Waste Incineration (1989) (available from National Technical Information Service (NTIS), NTIS No. PB90-108507 (tel. 800-553-6847)); see also All Hazardous Waste Incinerators Fail to Meet EPA Regulations, EPA Says, Rachel's Hazardous Waste News, Apr. 7, 1992, at 3.
46. 55 Fed. Reg. 82 (1990).
47. 40 C.F.R. 264.347(a) (requirement for continuous incinerator CO monitoring); id. 266.104(b) (BIFs).
48. Don't Waste Colorado Community Coalition, Hazardous Waste Incineration Information Packet (1991).
49. 40 C.F.R. 264.345(e) (incinerators); id. 266.102(e)(7)(ii) (BIFs).
50. Id. 266.104(b)(1) (BIFs). Current incinerator rules do not specify carbon monoxide levels, but simply state that allowable CO output will be set in the permit. Id. 264.345(b)(1). The proposed April 1990 incinerator regulations set up a two-tier carbon monoxide system. 55 Fed. Reg. 17862 (1990) (proposed 40 C.F.R. 264.343(d)).
51. 40 C.F.R. 266.104(c).
52. See supra notes 47-48 and accompanying text.
53. Emissions of chromium are assumed to be hexavalent chromium--the most toxic form, unless the facility demonstrates otherwise. 40 C.F.R. 266.105(g)(2) (BIFs); id. 264.343(e)(3)(i) (proposed incinerator rule).
54. 55. Fed. Reg. 17862.
55. Id.
56. 40 C.F.R. 266.106.
57. Id. 266.106(b) (BIFs). The promulgated incinerator regulations do not address metals (except indirectly, through control of particulate matter). Id. 264.340-.351. The draft incinerator regulations do address metals. 55 Fed. Reg. 17862 (1990) (proposed 40 C.F.R. 264.343(e)).
58. 40 C.F.R. 266.106(c).
59. See infra notes 122-23 and accompanying text.
60. 40 C.F.R. 266.106(d).
61. Id. 266.106(b)(6), (c)(5), (d)(5).
62. Id. 261.3(d)(2). Ashes and residues derived from the burning of D001 waste, which is classified as hazardous solely because it is highly ignitable, are not considered automatically to be hazardous waste. The "derived-from" rule, and the associated "mixture" rule may be drastically modified. See 57 Fed. Reg. 21450 (1992) (proposed and subsequently withdrawn hazardous waste identification rule).
63. 56 Fed. Reg. 7193.
64. 40 C.F.R. 264.343(c) (incinerators); id. 266.105(a) (BIFs).
65. Edward W. Kleppinger & Richard A. Carnes, Cement Kiln Incineration of Hazardous Waste: A Critique 48 (1990).
66. 40 C.F.R. 266.107(b)(1). The draft incinerator rule contains a similar standard. 55 Fed. Reg. 17862 (1990) (proposed 40 C.F.R. 264.343(f)). Existing incinerator regulations limit hydrogen chloride emissions to larger of either four pounds (1.8 kg.) per hour, or one percent of Hcl in the stack gas before the gas enters pollution control equipment. 40 C.F.R. 264.343(b).
67. 40 C.F.R. 266.107(b)(2).
68. Id. 266.107(c).
69. Id. 264.343(b) (incinerator requirement).
70. 56 Fed. Reg. 7180.
71. Id. at 7183.
72. 40 C.F.R. 266.105, 106, 107 (limits); id. 266.103(b)(2) (interim status).
73. Id. 266.103(b)(6).
74. Id. 266.103(c).
75. Id. 266.108.
76. RCRA 3004(q)(2)(E), 42 U.S.C. 6924(q)(2)(E); ELR Stat. RCRA 015.
77. 40 C.F.R. 266.108(a)(2).
78. Id. 266.108(a)(3).
79. 56 Fed. Reg. 7134, 7191.
80. 40 C.F.R. 266.108(a)(1).
81. Id. 266.108(d).
82. Id. 266.108(e).
83. Id. 266.102(a)(2) (permitted BIFs); id. 266.103(a)(4) (interim status BIFs). The same is true for incinerators.
84. Id. 266.111.
85. See generally U.S. EPA, Guidance Manual for Hazardous Waste Incinerator Permits, No. PB84-100577 (July 1983).
86. 40 C.F.R. 264.344(c)(1) (incinerators); id. 264.102(d)(4)(i) (BIFs).
87. Id. 264.344(c)(2) (incinerators); id. 266.102(d)(4)(ii) (BIFs). Detailed trial burn permit application requirements for incinerators are found at id. 270.62. Similar application requirements for BIF trial burns are set forth at id. 270.66.
88. Id. 264.344(c)(3) (incinerators); id. 266.102(d)(4)(iii) (BIFs). For trial burn analysis techniques, see generally Office of Solid Waste and Risk Reduction Engineering Laboratory, U.S. EPA, Guidance on Setting Permit Conditions and Reporting Trial Burn Results (1989); U.S. EPA, No. EPA/625/6-86/012, Permit Writers Guide to Test Burn Data--Hazardous Waste Incineration (Sept. 1986); Midwest Research Institute, Trial Burn Observation Guide (1988) (prepared for EPA); Practical Guide--Trial Burns for Hazardous Waste Incinerators, No. PB86-190246 (Apr. 1986) (prepared for EPA).
89. 40 C.F.R. 264.344(c)(4) (incinerators); id. 266.102(e) (BIFs). Detailed requirements for what the part B permit application must contain are found at id. 270.19 (incinerators) and id. 270.22 (BIFs).
90. Id. 264.345(b) (incinerators); id. 266.102(e) (BIFs).
91. Id. 264.345(a) (incinerators); id. 266.102(e)(1) (BIFs).
92. Telephone Interview with Edward W. Kleppinger, President, EWK Consultants (Jan. 1992); Edward W. Kleppinger, Testimony on Proposed Amendment of Rules and Proposed Adoption of Rule I Dealing With Boiler and Industrial Furnace Regulations, Before Montana Dep't of Health and Envtl. Sciences (Jan. 27, 1992).
93. Hearing Before the Subcomm. on Environmental Protection of the Senate Comm. on Environment and Public Works, 102d Cong. (1991) (statement of Edgar J. Marston III, Executive Vice-President and General Counsel, Southdown, Inc.) [hereinafter Marston Testimony].
94. Id. at 6.
95. Edward W. Kleppinger, Burning Issue: Hazardous Waste, Rock Prods., July 1991, at 61 (quoting Cement Kiln Recycling Coalition).
96. Cement Kiln Recycling Coalition, The Recycling Alternative (pamphlet); Marston Testimony, supra note 93, at 6.
97. Giant Group Acts to Sell Cement Unit, L.A. Times, Nov. 24, 1987, at IV, 4.
98. Moore, Stephen, So Much for "Scarce Resources," Pub. Interest, Winter 1992, at 105.
99. Kleppinger & Carnes, supra note 65, at 19-20.
100. Id. at 46.
101. Id. at 42.
102. Id. at 43.
103. Edward W. Kleppinger, Cement Kiln Incineration of Hazardous Waste, Sept. 1991, at 41-42.

Of course, while incinerators generally have a greater incentive to stay strictly within the terms of their permit, they do not always succeed, as the problems at Chemical Waste Management's now-suspended Chicago incinerator demonstrate. See Illinois v. CWM Chem. Servs., Inc., No. 91CH4768 (Ill. Cir. Ct. July 7, 1992) (consent decree entered); Illinois v. CWM Chem. Servs., Inc., No. 88CH5048 (Ill. Cir. Ct. Sept. 24, 1990) (consent decree entered on separate issue) (some of the problems involved four disconnections of a CO monitor, one exceedence of the PCB feed rate, relabeling of storage dates of drums containing site-generated wastes, and an explosion inside the rotary kiln caused by the incineration of an explosive chemical; Chemical Waste Management attributes the problems to errors of individual employees acting without authorization, or to other problems beyond Chemical Waste Management's reasonable control, and Chemical Waste Management believes that its Illinois facilities have an overall excellent environmental record); see also Hazardous Waste Incinerators: A Technology Out of Control?, Rachel's Hazardous Waste News, Apr. 15, 1992; Julia Flynn, The Ugly Mess at Waste Management, Bus. Wk., Apr. 13, 1992, at 76-77; Concerns Mount Over Operating Methods of Plants That Incinerate Toxic Waste, Wall St. J., Mar. 20, 1992, at B1, B5.

For discussion of numerous problems at an Army incinerator operated during 1990-91, see Pat Costner, Chemical Weapons Demilitarization and Disposal: The Army's Experience at Johnston Atoll Chemical Disposal System, Greenpeace, Apr. 11, 1992.

104. Letter from Hugh Kaufman, an engineer with EPA's Office of Solid Waste, to William Reilly, Administrator, EPA (Dec. 7, 1990).
105. 40 C.F.R. 266.104(f).
106. See Study Says Cement Kiln Emissions Not Harmful, Env't Today, July 1992, at 23.
107. Id.
108. 42 U.S.C. 4207, ELR Stat. CERCLA 024.
109. See Marston Testimony, supra note 93, at 4.

110. Portland Cement Ass'n, An Analysis of Selected Trace Metals in Cement and Kiln Dust (1992).
111. 40 C.F.R. pt. 261 app. II.
112. See Marston Testimony, supra note 93, at 4.
113. Cherie Trine, Boiler and Industrial Furnace Regulations: A Synopsis, in Don't Waste Colorado Community Coalition, Hazardous Waste Incineration Information Packet (1991).
114. See Don't Waste Colorado Community Coalition, Hazardous Waste Incineration Information Packet 7 (1991) (discussing the actions of Price Bros., of Dayton, Ohio, the largest manufacturer of prestressed concrete cylinder water mains in the United States).
115. See id.
116. Kleppinger & Carnes, supra note 65, at 40.
117. Id.; see also Lone Star Indus. v. Horman Family Trust, 960 F.2d 917, 22 ELR 21316 (10th Cir. 1992) (landowner potentially liable under CERCLA for accepting cement kiln dust as fill material).
118. See Lone Star Indus., 960 F.2d at 917, 22 ELR at 21316.
119. Kleppinger & Carnes, supra note 65, at 40.
120. RCRA 3001(b)(3)(B), 42 U.S.C. 6921(b)(3)(B), ELR Stat. RCRA 010.
121. 40 C.F.R. 266.112. The process is called "the two-part test."
122. 56 Fed. Reg. 7170.
123. Id.
124. Costner & Thornton, supra note 42, at 36.
125. 50 Fed. Reg. 7165.
126. Bernard L. Cohen, Radiation Pollution and Cancer: Comparative Risks and Proof, 2 Cato J. 255 (1982).
127. The Facts on File Dictionary of Environmental Science 151 (Harold Stevenson & Bruce Wyman eds.) (1991). Testing at the MTD is not quite as silly as it might first seem; the MTD "is used to overcome the problem of finding positive results in studies of cancers with perhaps a one in 100,000 risk in humans, in which only around 100 test animals are used for each exposure (dose) level." Id.
128. Gio B. Gori, Overturning the Verdict on Carcinogens, Wall St. J., Aug. 27, 1992, at A10, cols. 4-6.
129. The standards are enacted by states as a result of FWPCA 303(c)(2), 42 U.S.C. 1313(c)(2), ELR Stat. FWPCA 032.
130. 56 Fed. Reg. 7169.
131. Gerald L. Sauer, Imposed Risk Controversies: A Critical Analysis, 2 Cato J. 231, 236 (1982).
132. David B. Kopel, Eyes of the World, Relix, June 20, 1990, at 7.
133. Citizens for the Environment & Wayne Crews, The Economic and Safety Hazards of Toxics Use Reduction (1992).

 

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