SrEPA
United States Solid Waste and
Environmental Protection Emergency Response
Agency (5305)
EPA530-F-95-013
March 1995
Revised Implementation
Strategy for City of
Chicago v. EDF Municipal
Waste Combustion Ash
Supreme Court Decision
Memorandum
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 2 2 1995
MEMORANDUM
qUBJECT- Revised'Implementation Strategy for City_o£ Chicago v
SUBJECT. ^12JIlici^al W£LSte combustion (MWC) Ash Supreme Court
• Decision f' .. v' _ v
FROM:
TO:
-' .V- v-lA U"'
Elliott P. Laws- ~^~ . . .
Assistant Adraini*strafrjpr for Solid Waste
and Emergency'Response (OSWER)
Steven A/ eir&fi
Assistant iMminlLstrator for Enforcement
and Compliance Assurance (OECA)
Regional Administrators (Regions I-X) -
Background
Supreme Court Decision
on May 2, 1994, the U.S. Supreme Court i«u.dth e opint on in
S8
interpretation of RCRA, was exempt front Subtitle C.
EPA Actions
1
Tmplemert-ation
Prbittd *«h Say/CWufa Ink on pap«r thai
conttn* « teart 50% rtcycted flb«f
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memorandum is to revise the initial implementation strategy.
These revisions define the Agency's approach towards management
of hazardous ash generated by WTE facilities.
2. Determination of Point of RCRA Subtitle C Jurisdiction for
MWC Ash
In the City of Chicago v. EDF case, the Supreme Court issued
a narrowly focused opinion holding that S 3001(i) does not exempt
ash generated by WTE facilities. The Court, however, failed to
reach the issue of the precise point at which regulation of ash
must begin, and S 3001(i) does not expressly address the issue.
In an effort to address the issue, EPA recently published a
Notice of Statutory Interpretation entitled "Determination of
Point at Which Subtitle C Jurisdiction Begins for Municipal Waste
Combustion Ash at Waste-to-Energy Facilities" (60 £B 6666,
February 3, 1995).
As discussed in the Notice of Statutory Interpretation, EPA
believes it is reasonable to interpret S 3001(i) of RCRA to first
impose hazardous waste regulation at the point that the ash
leaves the "resource recovery facility," defined as the
combustion building (including connected air pollution control
equipment). Consequently, the point at which an ash hazardous
waste determination should be made (and, in the future, at which
the Land Disposal Restrictions will begin to apply) is the point
at which ash exits the combustion building following the
combustion and air pollution control processes. We emphasize
that EPA's decision on the appropriate location to make the
hazardous waste determination for WTE ash is uniquely based on
the Agency's interpretation of RCRA S 3001(i). EPA's analysis
and conclusions are not relevant to facilities that do not fall
within the scope of RCRA S 3001(i).
Nearly every resource recovery facility is configured
differently. In several instances, these facilities are not
confined within a single structure enclosed by four walls. A few
facilities, in fact, exist where the combustion device is not
enclosed at all within a building structure. However, in WTE
facilities where the ash always moves between structures in
enclosed conveyors, such configurations would fall within the
common sense meaning of the "resource recovery facility1* that
Congress exempted in S 3001(i). These configurations are
illustrated in examples one through three, below. In contrast,
in the fourth example, ash is exposed to the environment rather
than in an enclosed system. The definition of "resource recovery
facility" does not include ash handling operations allowing
exposure to the environment.
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Example 1. Many resource recovery facilities'automatically
convey, via enclosed conveyor, the fly ash collected at various
locations (including any air pollution control equipment such as
the acid gas scrubbers, baghpuse filters, and electrostatic
precipitators that may exist outside the building where the
combustion device is located but are connected to the building
via enclosed conveyors) to a quench tank within the combustion
device building where it is combined with the bottom ash. The
combined ash is then loaded into trucks for direct transport to
an off-site disposal facility. In this example, the "resource'
recovery facility" is composed of the combustion device building,
the air pollution control equipment, and the enclosed conveyors.
The point at which RCRA hazardous waste jurisdiction would begin
for these facilities would be the point where the ash exits the
building housing the combustion device.
Example 2. Several resource recovery facilities collect the
bottom ash and the fly ash separately and convey these two ash
types separately via enclosed conveyors to an ash building where
the two ash types are then mixed and loaded into a transport
vehicle for off-site disposal. The ash building may abut the
combustion device building, or it may be separate from the •
combustion device building but connected by enclosed .conveyors.
In this example, the "resource recovery facility" is composed of
the interconnected combustion device building,, the air pollution
control equipment, the ash building, and the enclosed conveyors.
The point at which RCRA hazardous waste jurisdiction would begin
for these facilities would be the point where the ash exits the
ash building.
Example 3. A few resource recovery facilities exist where the
combustion device is.not housed within a building. In these
instances, the combustion device, the air pollution control
equipment, the proximate enclosed ash handling areas, and the
interconnecting enclosed conveyors constructively constitute the
"resource recovery facility." Thus, if fly ash and bottom ash
were handled in an enclosed system that operates in the same
manner as if a building existed and the fly ash and bottom ash
were mixed in an enclosed unit proximate to the combustion
device, that management activity would be considered to take
place within a "resource recovery facility." In this example,
the point at which RCRA hazardous waste jurisdiction would begin
would be the point where the combined ash exits the"last enclosed
ash management unit that is .located proximate to the combustion
device.
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Sxmmpi* 4. Some resource recovery facilities may collect bottom
ash within the building housing the combustion device and collect
the fly ash outside the combustion device building in a manner
that exposes that ash to the environment; for example, in roll-
off containers. In these instances, the "resource recovery
facility11 is composed of the building housing the combustion
device as well as the air pollution control equipment. In this
example, RCRA hazardous waste jurisdiction begins at the two exit
points from the "resource recovery facility," specifically, at:
(1) the point where the bottom ash ultimately leaves the
combustion device building and (2) the point where the fly ash
becomes exposed to the environment as it is discharged from the
air pollution control equipment into open roll-off containers.
The WTE facility operator would thus make a hazardous waste
determination at each location. Should the operator determine
that either the bottom ash or fly ash is hazardous, management of
that ash would have to be conducted pursuant to RCRA Subtitle C.
If you have any questions about EPA's S 3001(i)
interpretation, please contact Andrew Teplitzky (703-308-7275) or
Allen Geswein (703-308-7261) of OSWER, or Kate Anderson (202-564-
4016) or Andrew Cherry (202-564-5011) of OECA.
n«vi««d nml«M«ntation strategy
1.
Overview
In the May 27, 1994 implementation strategy, EPA
acknowledged that, for economic and technical reasons, it would
be difficult for affected facilities to immediately comply with
the *1tY »* ehi«««» v- EP*1 decision and all •WfJi«5J;^^ :„
Subtitle C requirements. In recognition of this difficulty, EPA
adjusted its enforcement priorities for three months for
facilities to implement an ash testing program, and for 6 months
during which all WTE ash could be disposed of in solid waste
management units in compliance with 40 CFR Part 258. Through
these actions, EPA has demonstrated a commitment to working with
states and the regulated universe to phase affected facilities
into compliance with Subtitle C with minimal disruption of waste
handling practices at WTE facilities.
EPA now believes that all affected facilities should be on
notice of the duties imposed by the Supreme Court in the WY o|
ehiSoo v. EOF decision and its ramifications for the management
of hazardous ash. Since all WTE facilities should now have
programs in place to make hazardous waste determinations of their
amh, the Agency expects these facilities to manage ash thatis
determinedto be a hazardous waste in full compliance with RCRA
Subtitle C.
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2. Situations Presenting Potential Health and Environmental
Threats and Releases of Hazardous Constituents
In all circumstances, when considering appropriate
enforcement responses for potential violations of Subtitle C,
Agency personnel should consider whether a faicility may be
managing its WTE ash in an environmentally irresponsible manner,
posing a potential threat to human health ancl the environment.
Regions should, of course, bring actions, pursuant to RCRA S
7003, upon information that improper handling of any ash (whether
it is hazardous or not) may present an imminent and substantial
endangerment. In addition, Regions should evaluate whether
formal enforcement actions pursuant to RCRA ft 3008(h) are
appropriate in the event the Agency has infoirmation that there is
or has been a release of a hazardous waste or hazardous
constituents from a facility subject to interim status for
management of hazardous ash.
3. Enforcement Actions Under RCRA Section Mflaial
As discussed above, EPA now expects all generators to have
in place an effective hazardous waste determination program,
including sampling and analysis where appropriate.1 .Facilities
which have failed to set up and implement a metJiod to determine
whether their ash exhibits a hazardous waste characteristic are
appropriate targets for enforcement response.
EPA is aware, however, that because of (configurations unique
to individual facilities, some facilities may not combine fly ash
and bottom ash before it exits the "resource recovery facility."
Such facilities may now have to make separate hazardous waste
determinations at separate locations for both bottom ash and fly
ash. While the previous implementation stratecfy allowed any WTE
facility to sample and test combined bottom ash and fly ash, the
Agency's recent S 3001(i) interpretation of "resource recovery
facility" may now require some WTE facilities to make separate
l. On May 24, 1994, OSW issued draft "Sampling and Analysis
of Municipal Refuse Incineration Ash Guidance" which assists
generators that do not have guidance in place to make a hazardous
waste determination in accordance with 40 CFR S 262.4. This
manual was intended to provide guidance to waste-to-energy
facilities on how to sample and analyze ash to determine whether
it is a hazardous waste. Since the release of the initial
implementation strategy, OSW published a Federal Register Notice
of Availability requesting comment on the draft (59 IB 32427,
June 23, 1994). The public comment period closed on September
21, 1994, and OSW is currently evaluating the comments. The
final manual is projected to be released in the Spring of 1995.
EPA continues to encourage the use of the draft (and when
finalized, the final) "Sampling and Analysis of Municipal Refuse
Incineration Ash Guidance" or similar guidance issued by the
states.
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determinations on the fly ash and bottom ash. EPA will very, .
likely regard as an indicator'of environmentally irresponsible
management of hazardous ash (which-may warrant an enforcement
action under RCRA § 3.008 (a)) any failure to implement, within 75
days of the date of the February 3, 1995, interpretive notice (60
£E 6666), all modifications to .existing .hazardous waste,
determination programs necessary.to allow separate hazardous
waste determinations for fly ash and bottom ash.' During the ' .
first 75 days,, however, environmentally sound management of ash
in accordance with the results of.combined testing is unlikely to
merit an enforcement response. . .....,•- ...
If you have specific•questions as to the appropriate
enforcement response for a particular situation, please contact
Mark Pollins (202-5;64-4001). or Kate Anderson (202-564-4016), of
OECA-RCRA Enforcement-Division. ,.,...-.... .... . '_ •
•Thank you for your continued'support in ensuring the proper
management of hazardous WTE ash. .If you have any questions ,
regarding this revised implementation strategy,, please have your
staff contact Mark Pollins (202-564-4001) or Kate Anderson (202-
564-4016) of OECA-Office of Regulatory Enforcement, Andrew Cherry
(202-564-5011) of OECA-Office of Compliance, or 'Andrew Teplitzky
(703-308-7275) of OSWER-Office of Solid Waste.
cc: ScOtt C. Fulton, OECA '
Tim Fields, OSWER - . .
Robert Van Heuvelen, OECA/ORE
Elaine G. Stanley, OECA/OC . . .
Earl Devaney, OECA/OCE :
Michael Shapiro, OSWER/OSW
Regional Counsel (I-X)
Regional Waste. Management Division Directors (I-X)
Regional Counsel Branch Chiefs (I-X)
Regional Waste Branch Chiefs (I-X)
Susan Bromm, OECA/OC ;
Susan O'Keefe, OECA/ORE
Bruce Weddle, OSWER/OSW
Dev Barnes, OSWER/OSW
Lisa Friedman, OGC
David Nielsen, OECA/ORE
Mark Pollins> OECA/ORE
Gary Jonesi, OECA/ORE
Mimi Guernica, QECA/OC,
Terrance Grogan, OSWER/OSW
Jon Silberman, OECA/ORE
Andrew Cherry, OECA/OC ,
Kate Anderson, OECA/ORE
Andrew Teplitzky, OSWER/OSW
Allen Geswein, OSWER/OSW
Tina Kaneen, OGC
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