4>EPA
United States Solid Waste and
Environmental Protection Emergency Response
Agency (5305)
EPA53OF-94-021
May 1994
Implementation Strategy
Of U.S. Supreme Court
Decision in City of Chicago
v. EOF for Municipal Waste
Combustion Ash
Memorandum
/AY Recycled/Recyclable
7A ~^\ Printed on paper that contains at
\ K~7 least 50% post-consumer recycled fiber
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 2 7 1394
MEMORANDUM
SUBJECT:
FROM:
TO:
Implementation Strategy of U.S. Supreme Court Decision
in Citv of Chicago v. RDT?r No. 92-1639 ( US
May 2, 1994) for Municipal Waste Combustion" Ash' '
Steven A. Herman
Assistant Administrator for/ Enforcement
Elliott P.
Assistant Adminstrator for Solid Waste
and Emergency Response
Regional Administrators (Regions I-X)
Background
On May 2, 1994, the U.S. Supreme Court issued-an opinion
interpreting Section 3001 (i) of the Resource Conservation and
Recovery Act (RCRA), 42 U.S.C. § 6921(i). 'citv of Chicago v
JP?' N°- 92-1639 ( U.S. , decided May 2, 1994) . The Court
held that Section 3001(i) does not exempt ash generated at
resource recovery facilities (i.e., waste-to-energy facilities)
urning household wastes and nonhazardous commercial wastes from
the hazardous waste requirements of Subtitle C of RCRA.
_ Under the U.S. Supreme Court Rules, the Court's decision
will take effect when the Court formally notifies lower courts
The Court must wait at least 25 days before issuing such a
notification., Consequently, the decision in Citv of Chicago v
EOF will take effect as a matter of federal law sometime shortly
after May 27, 1994. In response to the Supreme Court's decision
we are issuing this memorandum to all Regions concerning the
implementation strategy for bringing waste-to-energy facilities
affected by the Supreme Court's decision into compliance with
RCRA Subtitle C as quickly as possible. The Agency is also
publishing, in the Federal Register, a Notice of Extension of
Date for Submission of Part-A Permit Applications for waste-to-
energy facilities affected by the Supreme Court decision. The
Federal Register notice, to be released shortly, finds that there
has been "substantial confusion" as to whether owners and
operators of facilities managing ash were required to file
applications for RCRA hazardous waste permits. As a result, EPA
Printed on atcyct»a Paper
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authority under 40 CFR 27Q\. 10 (e) (2) to extend
the deadlxne within which owners and operators of facilities that
wJI^' St°^' or Dispose of ash determined to be a hSzardouJ
waste can file their Part A permit applications. EPA is also
announcing that we interpret Section 3004(g)<4) of RCR^ to apply
to ash from waste-to-energy facilities. Under this PP Y
i?t??)r?P»»:L?n^a^ is a new1^ identified waste for the purposes -
of the RCRA land disposal restrictions (LDRs}. Therefore
current LDRs do not apply. Rather, under Section 3004(g)(4), EPA
will have six (6) months to promulgate LDRs specific to ash
determined to be a hazardous waste.
Overview of Strategy
The U.S. Supreme Court's decision has the effect of
fif"^ a ^h°le new class of entities that were exempt from
Subtitle C under EPA's 1992 interpretation of RC^A l ERA.
recognizes that immediate compliance with all ot the RCRA
f^o^L? re(3^re
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!tatus' a RCRA permit, or meets the requirements of 40
_§ 262.34), or make arrangements, for the proper disposal of
their ash at approved Subtitle C facilities.
In terms of enforcement response, the Regions should
consider a variety of factors in determining whether the ash that
is a hazardous waste is being managed in-an environmentally
irresponsible manner so as to pose a potential threat to human
health and the environment. Regions should be prepared to bring
•formal enforcement actions upon information that management of
the ash may present an imminent arid substantial endangerment
pursuant to RCRA § 7003 and should evaluate whether formal
enforcement actions pursuant to Section 3008(h) of RCRA are
appropriate in the event the Agency has information that there is
or has been a release of a hazardous waste or hazardous
constituents from a facility managing hazardous ash. Other
indicators of environmentally irresponsible management of
hazardous ash that may warrant a forma^ enforcement action under
Section 3008(a) of RCRA include, but are not limited to:
-- failure to manage ash that is a hazardous waste in solid
waste management units that comply with 40 CFR Part 258;
-- failure to implement or have in place, within 90 days of
the effective date of the Supreme Court decision, a method to
determine (by knowledge or testing) whether or not the ash
produced at the facility exhibits a hazardous waste
characteristic (for purposes of this implementation strategy, the
facility may sample and test combined fly ash and bottom ash if
they are mixed within the municipal combustion unit);
- - failure to have controls on fugitive emissions during
storage and transportation of ash that is a hazardous waste
(e.g., minimizing dust emissions through quenching or wetting the
ash and by transporting ash in leak resistant containers or
trucks and by controlling run-on and run-off from ash handling
.areas) ; and
-- reuse in any manner of ash that is a hazardous waste.
In implementing this strategy, the Regions are encouraged to
work with their authorized States to develop approaches for
ensuring compliance with Subtitle C in the regulated community
Following the creation of the new Office of Enforcement and
Compliance Assurance (OECA), the Chemical, Commercial Services
and Municipal Division will work with OECA's RCRA Enforcement
Division, the Regions, and the States to identify those issues
presenting the greatest compliance challenges and develop
strategies to address those concerns. The Regions are also
encouraged to work with their States to update state authorized
programs where applicable. Finally, Regions are encouraged to
provide input from both their offices and their States regarding
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